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Friday, April 28, 2006

Ind. Decisions - Court of Appeals decides four today

In Charles D. Cope, Jr. v. Anita D. Cope, a 6-page opinion which includes live links to the Defense Finance and Accounting Service, Military Pay: Garnishment, USFSPA Q&A, Judge Friedlander concludes:

Charles has flatly refused to make payments to Anita, despite the fact that he is currently receiving his monthly military pension. There is no legitimate basis for said refusal, and Anita’s only practical recourse was to file the instant proceedings supplemental to collect on the agreed property settlement through garnishment of Charles’s current wages. The trial court properly ordered garnishment.
In Virgil Cornelious v. State of Indiana, an 11-page opinion, Judge Barnes writes:
Virgil Cornelious appeals the denial of his petition for post-conviction relief. We reverse and remand. Issue Cornelious raises two issues. We address the dispositive issue of whether his guilty plea was voluntary. * * *

Conclusion. The assurances that Cornelious could plead guilty and preserve the alleged Criminal Rule 4(B) violation for appeal or post-conviction proceedings were material to his decision to plead guilty. The post-conviction court improperly denied his petition for post-conviction relief. We reverse and remand.

In Jonathan J. Rose v. State of Indiana, an 11-page opinion, Judge Najam writes:
Jonathan Rose appeals his conviction for Child Molesting, as a Class A felony. He presents a single issue for our review, namely, whether he was denied the effective assistance of trial counsel. We reverse and remand. * * *

In light of the inconclusive physical evidence, Dr. Chaganti’s vouching testimony, in which he stated that he found A.G.’s allegations convincing, improperly bolstered A.G.’s credibility and impinged upon the province of the jury to determine the witness’s credibility. Because much of the evidence supporting Rose’s conviction is based on A.G.’s allegations and testimony, Rose has demonstrated that there is a reasonable probability that, but for counsel’s failure to object to the admission of Dr. Chaganti’s vouching testimony, the result of the trial would have been different. See Strickland, 466 U.S. at 694. Thus, we are constrained to reverse and remand for a new trial.

In Thomas Perryman v. Motorist Mutual Insurance Company, a 14-page opinion, Judge Riley concludes:
Nevertheless, Perryman now encourages this court to find that Motorist violated its duty by failing to advise Perryman of our supreme court’s decision in Kiger which signaled a change in the law. In this regard, Perryman maintains that Motorist had a duty to revisit and investigate Perryman’s claim again two years after it was first denied and determine that, based on Kiger, coverage existed under the Garage Policy.

We decline to impose such duty. Our supreme court’s published decision in Kiger was a matter of public record, equally available and accessible to Perryman. By now attempting to shift responsibility of his duty to be aware of the law, Perryman would have us not only create a new burden on insurance companies to keep abreast of developments in claims that have been rejected already but which are still viable within the statute of limitations’ term, but also reward plaintiffs who fail to diligently research Indiana law within the statute of limitations term in order to timely bring a claim. This we will not do. Accordingly, we conclude that Perryman’s fraud claim fails.

CONCLUSION Based on the foregoing, we find that the trial court properly granted summary judgment as a matter of law.

Posted by Marcia Oddi on April 28, 2006 10:26 AM
Posted to Ind. App.Ct. Decisions