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Thursday, April 27, 2006

Ind. Decisions - Court of Appeals decides six today

Kevin Bentley v. State of Indiana

In Mark E. Collier v. State of Indiana, a 26-page opinion with Judge Barnes dissent beginning on p. 19, Judge Vaidik writes:

Mark Collier appeals his conviction for the attempted murder of his estranged wife. Specifically, he argues that his conduct did not constitute a substantial step toward commission of the crime of murder, as required by Indiana’s attempt statute, but was instead mere preparation. We agree, and therefore we reverse Collier’s conviction for attempted murder. * * * Reversed.

CRONE, J., concurs.
BARNES, J., dissents with separate opinion.

[Judge Barnes concludes his dissent:] The bottom line is that this jury, on these facts, returned a guilty verdict. To conclude otherwise amounts to infringing on this prosecutor’s charging discretion and this jury’s exclusive prerogative to weigh the evidence. This is a close case, and my dissent should not be taken to mean that in another case, with different facts and legal issues, that I necessarily would vote to sustain an attempted murder conviction. I do so here.

In Valerie L. Hamilton v. Steven D. Ashton, et al., a 15-page opinion, Judge Robb concludes:
The trial court improperly granted summary judgment to the Hospital, as Hamilton’s designated evidence raises at least a question of fact regarding whether the Hospital’s alleged negligence was a proximate cause of her injuries. The trial court properly granted partial summary judgment to Dr. Ashton on the issue of his performance of the actual surgical procedure in question. Hamilton’s claims regarding informed consent and Dr. Ashton’s post-operative care remain. Accordingly, the judgment of the trial court as to the Hospital is reversed; the judgment as to Dr. Ashton is affirmed.
In HK New Plan Marwood, etal., v. Onofrey Food Services, et al., a 13-page opinion by Judge Shaprnack, he writes:
In this interlocutory appeal, HK New Plan Marwood Sunshine Cheyenne, LLC, (“New Plan”) appeals the trial court’s denial of its motion for summary judgment and the trial court’s grant of summary judgment to David Onofrey (“Onofrey”). New Plan raises two issues, which we consolidate and restate as whether Onofrey’s guaranty of the lease between Onofrey Food Services, Inc., and New Plan was enforceable. We reverse and remand.
Walter Starks v. State of Indiana (NFP)

Diana Nieto, etal., v. Amy Kezy, et al., a 22-page opinion by Judge Sharpnack, involves a tax sale. The opinion begins:

Diana Nieto and Maribel Gonzalez, administrator of the Estate of Irma Nava, (collectively “Nava”), appeal the trial court’s judgment in favor of Amy Kezy and Walter H. Swets. Nava raises thirteen issues, which we consolidate and restate as:

I. Whether the trial court’s findings of fact and conclusions thereon regarding Swets’s payment of the real estate taxes on Nava’s property are clearly erroneous;

II. Whether the trial court’s findings of fact and conclusions thereon regarding the placement of Nava’s property on the July 1997 delinquent property tax list are clearly erroneous; and

III. Whether the trial court’s findings of fact and conclusions thereon regarding the validity of Kezy’s tax deed are clearly erroneous.

We affirm in part, reverse in part, and remand.

Posted by Marcia Oddi on April 27, 2006 02:21 PM
Posted to Ind. App.Ct. Decisions