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Monday, July 31, 2006

Ind. Decisions - Court of Appeals issues four today

In Reliable Development Corp. d/b/a The Fitness Barn v. Christopher Berrier, an 11-page opinion, Judge Robb writes:

Reliable Development Corporation (“Reliable”) d/b/a The Fitness Barn (“Fitness Barn”) appeals after a jury trial in which Reliable was assigned ninety percent of the fault for causing Christopher Berrier to sustain a lower back injury when he fell while running on a treadmill. The jury awarded damages totaling $9,000,000, of which $8,100,000 was apportioned to Reliable. On appeal, Reliable raises six issues for review, one of which we find dispositive, namely whether the trial court properly prevented Reliable from cross-examining Berrier’s medical expert witnesses about prior back injuries. Defendants in personal injury actions are entitled to challenge a plaintiff’s expert with respect to the accuracy, consistency, and credibility of that expert’s causation opinions, including through vigorous cross-examination. For this reason, we conclude that the trial court went too far in prohibiting Reliable from cross-examining Berrier’s medical experts about his prior injuries, and therefore reverse and remand for a new trial. * * *

Conclusion The trial court erred when it prevented cross-examination of Berrier’s medical experts before the jury for purposes of challenging their opinions. This was inconsistent with substantial justice, and we therefore reverse and remand for a new trial.

Floyd Piles v. Thomas Gosman, a 14-page opinion, is an adverse possession case. Judge Barnes concludes:
Based on Thomas Collett’s testimony, Gosman established the elements3 of adverse possession with clear and convincing evidence. Because the Colletts acquired the property from the Newkirks by adverse possession, the Newkirks could not convey the disputed property to Piles. Downing v. Eubanks, 557 N.E.2d 1027, 1029-30 (Ind. Ct. App. 1990) (“‘If a grantor conveys property, part of which belongs to the grantor and part of which belongs to another, the deed is good as to the property owned by the grantor and a mere nullity as to the property not owned by the grantor.’” (citation omitted)). The trial court properly concluded that Gosman is the owner of the disputed land.

Conclusion. The trial court properly concluded that Gosman obtained the property at issue by adverse possession. We affirm.

In David R. Boyle v. State of Indiana, a 19-page Blakely-related opinion (with a dissent by Judge Friedlander on p. 19), Judge Crone concludes:
Accordingly, we are left with one impermissible aggravating factor, one aggravating factor that is partially problematic, and one valid mitigating factor. Given this scenario, we must conclude that Boyle’s enhanced sentences (“45 years on each count, 35 years executed, 10 suspended, 3 probation” for each of the three class A felonies) were improper. * * * As such, we reverse and remand to the trial court for resentencing. * * * Reversed and remanded.

MAY, J., concurs.
FRIEDLANDER, J., dissents with separate opinion.

The majority’s decision to reverse is dependent in part upon its conclusion that Blakely applies retroactively to this case because Boyle’s ability to appeal via Post-Conviction Rule 2(1) had not been exhausted. I continue to adhere to the contrary view, as articulated in Robbins v. State, 839 N.E.2d 1196 (Ind. Ct. App. 2005). For the same reasons set out in my dissenting opinion in Gutermuth v. State, --- N.E.2d ---, No. 10A01-0509-CR-410 (Ind. Ct. App. June 7. 2006), I respectfully dissent from the majority’s holding in the instant case. I would affirm the trial court.

In George Membres, III v. State of Indiana, an 11-page opinion (with a dissent by Judge Bailey beginning on p. 8), CJ Kirsch writes:
George Membres III appeals the trial court’s order, finding that the seizure of his property was done pursuant to a lawful search, and therefore, the property was subject to be turned over to federal authorities. He raises two issues, of which we find one dispositive: whether the police had articulable, individualized suspicion of criminal activity prior to searching Membres’ trash. We reverse and remand. * * *

In this case, the information provided to Deputy Wildauer by the confidential informant was not sufficient to support an articulable, individualized suspicion of criminal activity. The information given was of the informant’s suspicions of criminal activity occurring at Membres’ residence and not on any observations of actual drug activity. There were also no facts that set forth what Deputy Wildauer did to corroborate the information given by the informant. We conclude that because the informant’s tip so lacked the indicia of reliability and credibility, Deputy Wildauer could not have had a good faith reliance on this information to support the search of Membres’ trash and, later, the affidavit for probable cause. The good faith exception therefore does not apply, and the trial court erred in denying Membres’ motion to suppress. Because the property subject to the transfer order was not obtained pursuant to a lawful search, we remand to the trial court to vacate the turnover order and return the property. Reversed and remanded.

CRONE, J., concurs.
BAILEY, J., dissents with separate opinion. [which begins]

I respectfully dissent from the majority’s determination that the good faith exception to the exclusionary rule is inapplicable to the trash search in question and that, as a result, the property subject to the transfer order—i.e., the $57,060.00, jewelry, and firearms—was not obtained pursuant to a lawful search. Even assuming arguendo that the police lacked a reasonable, articulable suspicion for seizing Membres’s trash and that, as a consequence, the trash pull did not meet the constitutional requirements of Litchfield v. State, 824 N.E.2d 356, 363-64 (Ind. 2005), the evidence is still admissible under the good faith exception as codified in Indiana Code Section 35-47-4-5. See, e.g., Richardson v. State, 848 N.E.2d 1097, 1103-04 (Ind. Ct. App. 2006).

Posted by Marcia Oddi on July 31, 2006 11:07 AM
Posted to Ind. App.Ct. Decisions