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Thursday, August 26, 2004

Indiana Decisions - Three today from Court of Appeals, One from Tax Court

Paul Howard & Paul's Truck and Auto Repair v. Stephen Dravet, et al (8/26/04 IndCtApp) [Procedure]
Sharpnack, Judge

In this interlocutory appeal, Paul Howard (“Howard”) appeals the trial court’s grant of a motion to quash a request for production filed by Great West Casualty Company (“Great West”), a non-party to the litigation. Howard raises one issue, which we restate as whether the trial court abused its discretion by granting the motion to quash the request for production based upon the attorney-client privilege and the work product doctrine. We reverse and remand. * * *

First, Howard argues that the trial court abused its discretion by instituting a blanket privilege over the documents in the claim file. Blanket claims of privilege are not favored. Petersen v. U.S. Reduction Co., 547 N.E.2d 860, 862 (Ind. Ct. App. 1989). The party seeking to avoid discovery has the burden of establishing the essential elements of the privilege being invoked. Id. The claim of privilege must be made and sustained on a document-by-document basis. * * * Thus, Great West had the burden of establishing privilege as to each document requested by Howard. * * *

Here, the evaluation letter, which contained legal advice to Great West from its counsel, is protected by the attorney-client privilege because it involved confidential communications. Although the evaluation letter was privileged under the attorney-client privilege, the submission of the evaluation letter to the trial court for in camera review was insufficient to establish that any other documents in the claim file were privileged. The evaluation letter does not describe or summarize any other document in the claim file and says nothing about the applicability of the work product doctrine or the attorney-client privilege to other documents in the claim file. * * * In this case, Great West was required to assert the privilege on a document-by-document basis of the contents of the claim file. Therefore, the trial court abused its discretion by granting Great West’s motion to quash based solely upon its in camera review of the evaluation letter. * * *

The vital resource of the trial court’s time should be spent on discovery issues rarely and sparingly. It is the responsibility of counsel to avoid, by cooperative effort, imposing on the trial courts for resolution of discovery matters. In those instances when the discovery matters cannot be resolved by the sincere efforts of counsel, the issues presented to the court should be sharply focused in fact, law, and number, so that the trial court’s time required is minimal and well spent.

For the foregoing reasons, we reverse the trial court’s grant of Great West’s motion to quash and remand for proceedings consistent with this opinion. Reversed and remanded.
DARDEN, J. and ROBB, J. concur

Russell W. Carter v. Estate of Everett D. Davis (8/26/04 IndCtApp) [Estates]
Barnes, Judge
Russell Carter appeals the trial court’s denial of his motion to dismiss the administration of Everett Davis’ estate (“the Estate”) for lack of subject matter jurisdiction. We affirm. * * *

This is not the first time this court has been asked to consider the legal domicile of a “snowbird” who split his time between Indiana and Florida and eventually died in Florida * * *

Here, we are not faced with the question of the situs of a completely ephemeral property interest in a right of publicity that had no physical connection with any geographic location. Instead, there is no question here that Davis deposited large sums of money with a bank located in Clinton County and, therefore, evidence of the bank’s indebtedness to Davis is also located in Clinton County and that debt is collectible in Clinton County. * * *

Here, Farmers Bank, as Davis’ debtor and subject to an action for recovery of the funds on deposit there, was located in Clinton County. Thus, jurisdiction over the administration of Davis’ estate also properly rested in Clinton County because he possessed property legally located there at the time of his death.

Conclusion. The trial court’s denial of Carter’s motion to dismiss Davis’ probate proceedings for lack of subject matter jurisdiction is supported either by evidence that Davis was still domiciled in Clinton County at the time of his death, or that he possessed property located in Clinton County at that time. We affirm. Affirmed.
NAJAM, J., and SULLIVAN, J., concur.

Danielle L. Hulfachor v. State of Indiana (8/26/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Danielle Hulfachor appeals the ten-year sentence imposed upon her conviction for Neglect of a Dependent, See footnote a class B felony. Specifically, she argues that the trial court improperly considered evidence outside the record, the trial court did not appropriately weigh the aggravators and mitigators, and her sentence was inappropriate in light of the nature of the offense and the character of the offender. Finding that Hulfacher waived her argument regarding whether the trial court erred in considering evidence outside the record and that her sentence is appropriate, we affirm. * * *

On August 21, 2002, the State charged Hulfachor with battery and aggravated battery. On the day that was set for trial, Hulfachor pleaded guilty to neglect of a dependent. In exchange, the State dismissed the original counts of battery and aggravated battery. At the sentencing hearing, the trial court noted: "I asked the lawyers if they could answer some of my questions which we communicated through e-mail and long story short I was able to go to Juvenile and review the CHINS file in Judge Payne’s chambers where I had access to among other things the parenting assessment that was done by the Children’s Bureau ..." * * *

Evidence Outside the Record. Hulfachor first argues that the trial court improperly considered evidence outside the record in determining her sentence. To the contrary, the State contends that Hulfachor waived consideration of this issue by inviting the error. We agree with the State. * * *

Hulfachor did not object when the trial court made its statements regarding the additional information it obtained from the CHINS file from another court. In fact, it appears that Hulfachor’s attorney helped the trial court obtain this information. Hulfachor’s attorney agreed to the introduction of this evidence when she participated in unrecorded communications with the trial court over the Internet. Thus, Hulfachor invited the error, and it is waived for our review. Nevertheless, we strongly caution trial courts against looking outside the record for evidence in a sentencing hearing. Obviously, such a practice deprives a defendant of the opportunity to review the information and refute its accuracy. By not placing the information in the record, the trial court created a risk that sentencing would be based on inaccurate or irrelevant information. Therefore, trial courts should look only to evidence properly placed in the record when making sentencing determinations. * * *

In light of the above conclusions, we find that Hulfacher’s sentence was appropriate and the trial court did not err in its consideration of aggravators and mitigators. We also find that Hulfachor waived her right to argue that the trial court considered evidence outside the record, but strongly admonish trial courts not to do so in the future. The judgment of the trial court is affirmed.
KIRSCH, C.J., and ROBB, J., concur.

Northeast Indiana Chevrolet Advertising Assoc. v. Indiana Dept. of State Revenue (8/25/04 IndTaxCt - NFP) [Gross Income Tax]

"The sole issue for the Court to decide is whether the [Northeast Indiana Chevrolet Dealers Advertising Association, Inc.] received funds from General Motors Corporation (GMC) in an agency capacity."

Posted by Marcia Oddi on August 26, 2004 01:53 PM
Posted to Indiana Decisions