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Friday, October 14, 2005

Ind. Decisions - Court of Appeals issues three reversals today

Three decisions, three reversals. The first is in Michael Lawson v. Marion County Office of Family & Children, a parental termination case where the opinion by Judge Najam concludes that "Under these circumstances, we conclude that Father’s due process rights were significantly compromised in that he was unable to cross-examine Bergen and Mother regarding critical evidence against him."

In the second, John L. Brimhall, et al. v. Jeffrey A. Brewster, et al., Judge Sullivan writes:

[W]e are very much of the same mindset as this court in State ex rel. Jackson v. Owen Circuit Court, 160 Ind.App. 685, 694, 314 N.E.2d 73, 79 (1974). In that decision, we “reluctantly” concluded that the trial court exceeded its jurisdiction in entering an order nunc pro tunc to show that evidence was filed when no written note, minute, or memorial existed upon which to base the order, and furthermore, that the recollection of the judge was at variance with the Clerk’s Certificate to the record of the proceedings. As this court noted, human memory and recall is not perfect and some times will fail. Id. Thus, a written memorandum made at the time ensures a more accurate basis for the later entry than does a mere recollection which may be dimmed by the passage of time and colored or altered by intervening events. Id.

Consequently, we conclude that the trial court erred in entering the nunc pro tunc order which deemed the dismissal to be without prejudice in order to validate the later proceedings. Thus, we invalidate both nunc pro tunc orders entered by the trial court in addition to all other rulings made after Novermber 15, 2002, including the default judgment entered in favor of the Brewsters on their claim. The judgment is reversed.

In an 18-page opinion, William J. Brant, Jr. v. Robert R. Krilich, Judge Sullivan begins:
Appellant William J. Brant, Jr. appeals from the trial court’s decision that Appellee Robert Krilich is entitled to a pro rata portion of certain bank accounts with which Brant is affiliated and to Brant’s ownership interest in several limited liability companies (“LLCs”). He presents numerous issues for our review, which we restate as two dispositive issues: (1) whether the various Garnishee Businesses2 should have received notice of the garnishment proceeding involving the checking accounts in their respective names, and (2) whether the Business Entities should have received notice of Krilich’s intent to seek Brant’s ownership interests in them. We reverse and remand for further proceedings not inconsistent with this decision. Because of the confusion which has existed throughout the original prosecution of this action, we also offer some direction and guidance to the trial court in resolving other issues which will necessarily arise upon remand.

Posted by Marcia Oddi on October 14, 2005 10:51 AM
Posted to Ind. App.Ct. Decisions