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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. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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