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High court grants 6 transfers

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The Indiana Supreme Court took six cases last week, including two cases of first impression before the Indiana Court of Appeals involving attorney’s fees under the Adult Wrongful Death Statute and the modification of a felony conviction to a misdemeanor.  

In Jeffery H. McCabe, As Representative of the Estate of Jean Francis McCabe, Decedent v. Commissioner, Indiana Department of Insurance as Administrator of the Indiana Patient’s Compensation Fund, No. 49S02-1010-CV-602, Jeffrey McCabe appealed the grant of partial summary judgment in favor of the commissioner, and Indiana Department of Insurance as administrator of the Indiana Patient’s Compensation Fund. The trial court had ruled attorney’s fees and expenses incurred by the attorney representing the personal representative of a wrongful death estate are not recoverable damages under the state Adult Wrongful Death Statute.

McCabe cited Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846 (Ind. Ct. App. 2009), to support his argument, but the appellate court noted Hillebrand is distinguishable from the instant case because it was a probate case deciding from which probate assets attorney’s fees incurred should be paid, and it precedes both the Child Wrongful Death Statute and the AWDS. The judges also relied on Butler v. Indiana Department of Insurance, 904 N.E.2d, 198, 202 (Ind. 2009), in which the Supreme Court held that the “include but not limited to” language doesn’t expand the class of necessitated expenses.

Judge Patricia Riley dissented, believing Hillebrand, Butler, and Estate of Kuba, (508 N.E.2d 1, 2 (Ind. 1987), permitted reasonable attorney’s fees to be considered recoverable damages under the AWDS. A separate panel of judges ruled in September in Indiana Patient's Compensation Fund v. Beverly S. Brown, et al., No. 49A02-1001-CT-80, that attorney’s fees and other costs can be awarded under the AWDS. That panel used Judge Riley’s dissent to support its decision.

In State of Indiana v. Jeffrey Brunner, No. 57S04-1010-CR-603, the Court of Appeals reversed and remanded with instructions the trial court’s modification of Jeffrey Brunner’s criminal sentence from a Class D felony to a Class A misdemeanor nine years after he pleaded guilty to operating a vehicle while intoxicated.

The judges examined Indiana Code Section 35-50-2-7(b), which the trial court used to modify his sentence, and found that the decision on whether to enter judgment on a Class D felony or Class A misdemeanor must be made at the moment of the original entry of the judgment of conviction. Judge Edward Najam said the trial court’s reliance on that statute to grant the requested relief was contrary to the plain meaning of the statute and an abuse of discretion.

In Susanne C. Gaudin, et al. v. J.W. Austin, president, et al., No. 07S04-1010-CV-600, Susanne Gaudin and other plaintiffs sought declaratory and injunctive relief upon learning the Brown County Commissioners enacted an ordinance in January 2009 purporting to dissolve a fire district. That district was created by a September 2007 ordinance. The plaintiffs alleged the dissolution ordinance was void because no petition to dissolve the district or repeal the ordinance establishing it had been filed.

The trial court granted summary judgment for the commissioners, ruling there's no reason to conclude that a governing body with the authority to establish the fire protection district doesn't have similar authority to dissolve it, but the Court of Appeals held county commissioners had no authority to enact the ordinance to attempt to dissolve the fire district.

Chief Justice Randall T. Shepard recused himself from hearing this case based on his involvement in leading the Indiana Commission on Local Government Reform, which provided recommendations for a leaner local government structure in the Kernan-Shepard report.

In Steven and Lauren Siwinski v. Town of Ogden Dunes, No. 64S03-1010-CV-599, the Court of Appeals reversed summary judgment for Ogden Dunes in its complaint against the Siwinskis alleging they violated an ordinance by renting out their house for periods of fewer than 30 days, which constituted a commercial use. The judges held nothing in the designated evidence established that any commerce or other activities not associated with a residence were ever conducted on the Siwinskis' property, nor did the evidence show that, at any time, the property was occupied by more than a single family simultaneously. They remanded for summary judgment to be entered in favor of the Siwinskis.

The Supreme Court granted transfer to two cases involving the same incident. In Damion Wilkins v. State of Indiana, No. 02S03-1010-CR-604, and Cornelius Tyrone Lacey Sr. v. State of Indiana, No. 02S05-1010-CR-601, the Court of Appeals reversed the denial of Damion Wilkins’ and Cornelius Lacey’s motions to suppress evidence obtained during the execution of a search warrant. During a trash pull at a suspected cocaine and marijuana dealer’s home, Lacey, police found mail addressed to Wilkins. He was at Lacey’s home when police decided to serve a search warrant in a “no-knock” fashion for officer safety and rammed the door down.

The appellate judges found there was probable cause for the issuance of the search warrant but the unilateral decision to dispense with the knock-and-announce rule was unreasonable under the Indiana Constitution. The police, if they were worried about their safety, had time to apply for a “no-knock” warrant, but did not. The appellate court took issue with the emergency response team’s policy that authorizes a unilateral decision to enter a home without knocking when there hasn’t been an independent determination regarding the circumstances. Judge Michael Barnes concurred in result in both decisions.

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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