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Thursday, March 31, 2005

Ind. Decisions - Court of Appeals posts eight today; Tax Court posts one

Grant F. Shipley v. KeyBank National Association (3/31/05 IndCtApp) [Procedure]
Sharpnack, Judge

In this interlocutory appeal, Grant F. Shipley appeals a portion of the trial court’s order, which granted him summary judgment on one of the issues he raised and ordered him to return approximately $70,000 in attorney fees that he previously had received as the attorney for a former receivership to the receivership estate that is pending in another county court for distribution by that court. Shipley also appeals the trial court’s denial of his Ind. Trial Rule 60 motion to correct a clerical mistake in the dating of the summary judgment order, which had been issued nunc pro tunc. Shipley raises four issues, which we consolidate and restate as:
Whether the trial court erred by granting Shipley’s motion for summary judgment on the issue of repayment of fees earned as attorney for a former receivership and by ordering Shipley to return the fees to the receivership pending in the Huntington Circuit Court; and Whether the special judge abused his discretion by concluding that the trial court’s written summary judgment order was properly entered as a nunc pro tunc order. We affirm * * *
BAKER, J. and FRIEDLANDER, J. concur
Dorsey L. Mathews v. State of Indiana (3/31/05 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
* * * We conclude that the murder instruction does not constitute fundamental error. We further conclude that none of Mathews’ convictions violate double jeopardy except for Count IX, which we order the trial court to vacate. In addition, the consecutive sentence limitation was not violated in this case. Accordingly, we reverse and remand for the trial court to impose a sentence of 125 years. Mathews’ sentence is not otherwise inappropriate under Indiana Appellate Rule 7(B). Affirmed in part, and reversed and remanded in part.
KIRSCH, C.J., and VAIDIK, J., concur
Michael Morrison v. State of Indiana (3/31/05 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge
Appellant-Defendant Michael Morrison (“Morrison”) appeals his convictions for two counts of attempted criminal deviate conduct as Class B felonies and two counts of sexual battery as Class D felonies. Morrison also challenges his executed fifteen-year sentence in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), reh’g denied . We affirm in part and remand for vacation of two convictions. * * *

Here, the trial court sentenced Morrison to an enhanced term of fifteen years for his attempted criminal deviate conduct as a Class B felony conviction and to an enhanced term of three years for his sexual battery as a Class D felony conviction, and ordered that the sentences be served consecutively. In so doing, the trial court found one aggravating circumstance—i.e., White’s mental handicap—and one mitigating circumstance—Morrison’s lack of criminal history. Morrison maintains that his enhanced sentence was improper because it is based upon White’s mental handicap, which was a fact not determined by the jury or admitted by Morrison. We disagree. * * *

Yet, because the jury found Morrison guilty of Counts II and IV, which required proof of White’s mental incapacity, the jury necessarily determined, beyond a reasonable doubt, that Morrison committed the offenses against White, i.e., a person with limited mental capacity. Because the jury found, beyond a reasonable doubt, that White was “so mentally disabled or deficient that consent to the touching [could not] be given,” its verdict alone allowed for the enhanced punishment. Appellant’s App. at 102; see also Powell v. State, 751 N.E.2d 311, 317 (Ind. Ct. App. 2001) (holding that an enhanced sentence will be affirmed if it is supported by a legitimate aggravator). As such, Morrison has failed to show that the trial court violated his Sixth Amendment right to have a jury determine his sentence.

For the foregoing reasons, we affirm Morrison’s convictions for Count I, attempted criminal deviate conduct, and Count III, sexual battery, as well as his executed fifteen-year sentence. We remand to the trial court with instructions to vacate Morrison’s convictions for Count II, attempted criminal deviate conduct, and Count IV, sexual battery. Affirmed in part and remanded in part.
SULLIVAN, J., and MATHIAS, J., concur


Geri Wheatcraft v. Charles Wheatcraft [Family Law]
Najam, Judge
Geri Wheatcraft (“Wife”) appeals from three of the trial court’s orders in this dissolution proceeding. Wife presents the following issues for our review: [1] Whether the trial court abused its discretion when it denied Wife’s motion to set aside the dissolution decree under Indiana Trial Rule 60(B). [2] Whether the trial court abused its discretion when it denied Wife’s motion for discovery under Indiana Trial Rule 60(D). [3] Whether the trial court abused its discretion when it granted Charles Wheatcraft’s (“Husband’s”) petition for attorney’s fees. * * *
Affirmed.
KIRSCH, C.J., and VAIDIK, J., concur
Joseph D. Caron v. State of Indiana (3/31/05 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge
* * * As we have noted on a number of occasions, a single valid aggravating circumstance may be sufficient to sustain an enhanced sentence. See, e.g., Teeters v. State, 817 N.E.2d 275. Moreover, when the trial court improperly applies aggravating circumstances but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. See Bacher v. State, 722 N.E.2d 799 (Ind. 2000). The five aggravating circumstances previously sustained adequately support the five-year enhancement of Caron’s sentence, and we can say with confidence that the enhanced sentence is appropriate without considering the validity of the two remaining aggravating circumstances. See Witmer v. State, 800 N.E.2d 571 (Ind. 2003). Judgment affirmed in part and reversed in part.
SHARPNACK, J., and BAKER, J., concur
Manous, LLC, et al. v. Pauline Manousogianakis (3/31/05 IndCtApp) [Worker's Comp]
Najam, Judge
Manous, LLC (“Manous”) appeals the decision of the Worker’s Compensation Board of Indiana (the “Board”) awarding benefits to the family of an employee who was murdered while at his place of employment. Manous presents the following issues for our review: [1] Whether the positional risk doctrine applies when an employee is murdered at his workplace without explanation. [2] Whether sufficient evidence exists to support the Board’s finding that Christos Manousogianakis’s (“Christos”) dependents are entitled to worker’s compensation benefits.

Christos’s wife, Pauline Manousogianakis (“Manousogianakis”) cross-appeals, seeking appellate attorney’s fees and a ten percent increase in the worker’s compensation award. We affirm and remand. * * *

Conclusion. In sum, Manousogianakis demonstrated that Christos’s unexplained murder occurred in the course of his employment. Under the positional risk doctrine, there was a presumption that Christos’s death arose out of his employment, which Manous failed to rebut. Thus, the Board did not err when it determined that Manousogianakis was entitled to worker’s compensation benefits. We also conclude that Manousogianakis is not entitled to appellate attorney’s fees. Because we are affirming the full Board’s decision on appeal, however, Manousogianakis is entitled to a five percent increase in her award pursuant to Indiana Code Section 22-3-4-8(f). We remand this case to the Board for further proceedings consistent with this opinion. Affirmed and remanded.
KIRSCH, C.J., and VAIDIK, J., concur


Save the Valley, Inc., et al. v. Indiana-Kentucky Electric Corporation and IDEM (3/31/05 IndCtApp) [Procedure]
Barnes, Judge
We grant the Appellees’ petitions for rehearing; however, we affirm our opinion in all regards. We issue this opinion on rehearing to address an argument raised by IKEC for the first time in its petition for rehearing and to clarify the issue of the trial court’s subject matter jurisdiction. * * *
NAJAM, J., and SULLIVAN, J., concur

Mandy Bowles v. General Electric Company (3/31/05 IndCtApp) [Worker's Comp]
Friedlander, Judge
On April 3, 2002, Mandy Bowles filed an application for adjustment of claim with the Indiana Worker’s Compensation Board claiming permanent disablement from injuries suffered while working for General Electric (GE). GE moved to dismiss Bowles’s claim for lack of jurisdiction pursuant to Ind. Code Ann. § 22-3-3-3 (West 1998). A single hearing member of the Board granted GE’s motion to dismiss, and Bowles filed for review. After a hearing, the full Board affirmed the single hearing member’s decision. On appeal, Bowles raises two issues that we consolidate for review: Is her claim time-barred? We affirm. * * *
SHARPNACK, J., and BAKER, J., concur

Thomas R. Galligan v. Indiana Department of State Revenue (3/30/05 IndTaxCt) [Sales & Use Tax]
Fisher, Judge
homas R. Galligan (Galligan) appeals the final determination of the Indiana Department of State Revenue (Department) which assessed him with the unpaid sales and use tax liabilities of Irish Park, Inc. (IP) for the 1993, 1994, and 1995 tax years (years at issue). The case is before the Court on the following issues: [1] Whether collecting IP’s tax liabilities from Galligan for the years at issue violates his right to due process; and [1] Whether the Department has erred in imposing sales and/or use tax on certain IP transactions? * * *

Based on the foregoing reasons, this Court finds that Galligan is not liable for IP’s 1993 tax liabilities. Galligan can be held liable, however, for IP’s unpaid sales/use taxes for the 1994 and 1995 years. Nevertheless, Galligan has presented prima facie evidence that the Department’s assessments as discussed in Issues II(A), II(B), II(C), and II(D)(2),(3),(4),(5), and (6) were in error. Consequently, those audit findings are REVERSED and the Court REMANDS those matters to the Department to recalculate the amount of tax due. The Department’s assessments as discussed in Issues II(D)(1), II(E), and II(F) are AFFIRMED.

Posted by Marcia Oddi on March 31, 2005 01:52 PM
Posted to Ind. App.Ct. Decisions