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Tuesday, April 18, 2006

Ind. Decisions - Court of Appeals posts five today

In Lance Dawson v. Thomas Newman, Jr., a 9-page opinion, Judge May writes:

Lance Dawson appeals the dismissal under Ind. Trial Rule 12(B)(6) of his suit against Judge Thomas Newman, Jr. Dawson raises two issues, which we consolidate and restate as whether Judge Newman is protected by absolute judicial immunity under the facts alleged in the complaint. We affirm. * * *

Because we agree with the Seventh Circuit that the “functioning of the system is more important than some particular and rare judicial misdeed which can be dealt with in other ways,” we decline to “label some part of the judicial process as administrative or ministerial and thereby encroach on the judicial defense of absolute immunity, as disturbing as the judicial conduct may be[.]” Lowe, 772 F.2d at 313.

(Read this decision in conjunction with this April 6th ILB entry titled "Columnist James J. Kilpatrick features Indiana case.")

In State of Indiana v. Miguel Campos III, a 5-page opinion (with Judge Sulivan's dissent on page 5), Judge Darden dismisses the State's appeal of the trial court's dismissal of Count I, concluding:

The State previously sought an interlocutory appeal, which this Court denied. The State now attempts to circumvent our decision by appealing under Indiana Code section 35-38-4-2(1), which provides that “[a]ppeals to the supreme court or to the court of appeals, if the court rules so provide, may be taken by the state . . . [f]rom an order granting a motion to dismiss an indictment or information.” The State, however, wants to appeal an order dismissing only one count of the information. Indiana Code section 35-38-4-2(1) does not provide for such an appeal.4 See State v. Evansville & T.H.R. Co., 107 Ind. 581, 8 N.E. 619, 620 (1886) (A motion to dismiss an information, “which will authorize an appeal by the state, must be a judgment which finally disposes of the whole case, and not merely a ruling . . . leaving other counts upon which the trial may proceed.). Thus, the State cannot now appeal the dismissal of Count I. See State v. Aynes, 715 N.E.2d 945, 948 (Ind. Ct. App. 1999) (“The right of the State to appeal in a criminal action is statutory and, unless there is a specific grant of authority by the legislature, the State cannot appeal.”). Accordingly, we dismiss this appeal.

KIRSCH, C.J., concurs.
SULLIVAN, J., dissents with separate opinion.

The order of dismissal dismissed only Count I, the C felony charge. The State was left to proceed only as to the two Class A misdemeanors. The State did not proceed upon those lesser charges nor did it dismiss them. It was not required to do so.

In my view, this court erred in rejecting the interlocutory appeal from the dismissal of the C felony because that issue is and was not thereafter available for review unless the State dismissed the misdemeanor charges.

I would consider the instant appeal as an appropriate appeal from the dismissal.

In John W. Anthony v. Indiana Farmers Mutual Insurance Group, a 13-page opinion, Judge Friedlander writes:
This case stems essentially from a dispute between John W. Anthony and his attorneys regarding a settlement between Anthony and Indiana Farmers Mutual Insurance (IFMI). Anthony, pro se, presents as the sole issue upon appeal the propriety of the trial court’s ruling that Anthony authorized his attorneys to settle his uninsured motorist claim against (IFMI). We affirm.
In Kevin Weaver v. State of Indiana, a 12-page opinion, Judge May concludes:
The jury could have correctly concluded Weaver did not prove he reasonably believed E.B. was sixteen, and the sentencing court did not abuse its discretion in declining to assign weight to the mitigating circumstances Weaver offered. We accordingly affirm Weaver’s conviction and sentence. Affirmed.
In Ward Allen and Allen's Excavating v. First National Bank of Monterey, et al., a 12-page opinion (with a cocurr/dissent beginning on p. 9), Judge May writes:
Ward Allen (“Ward”) appeals summary judgment in favor of the First National Bank of Monterey, Claiborn Wamsley, George Wamsley, Randy Howard and Dick Gearhart (collectively “the Bank”).1 Allen contends the trial court erred in granting the Bank’s motion for summary judgment because the Bank’s perfected security interest does not preclude all liability for damages. We reverse and remand. * * *

The Bank’s perfected security interest is superior to Ward’s interest in the backhoe. However, the Bank may be liable for its failure to comply with Ind. Code § 26-1-9.1-609. We therefore remand so the trial court may consider this issue.

KIRSCH, C.J., concurs.
ROBB, J., concurring in part, dissenting in part with separate opinion.

I agree with the majority’s resolution of the breach of the peace issue. However, because I believe there are issues of material fact with respect to whether the Bank should be estopped to assert a superior interest in the backhoe, I respectfully dissent from the majority’s resolution of this issue.

Posted by Marcia Oddi on April 18, 2006 11:02 AM
Posted to Ind. App.Ct. Decisions