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Tuesday, September 19, 2006

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In Michael R. Daffron v. Deputy Richard Snyder #2741, et al, a 9-page opinion, Judge Vaidik writes:

Michael Daffron appeals the trial court’s order denying his attorney’s fees. Daffron filed suit against Deputy Richard Snyder and his employer, Sheriff Greg Leatherman, alleging state tort claims and a claim for deprivation of civil rights under 42 U.S.C. § 1983. Pursuant to 42 U.S.C. § 1988, a “prevailing party” in a section 1983 action may be awarded attorney’s fees as part of the costs of the underlying action. Defendants eventually settled with Daffron for “Three Thousand Dollars ($3000.00) with costs accrued” pursuant to a Trial Rule 68 Offer of Judgment, and Daffron filed a request for attorney’s fees as costs with the trial court, which was denied. We hold that because a Trial Rule 68 settlement agreement results in a consent judgment and because a consent judgment is a court-ordered change in the legal relationship between the parties, the party accepting the settlement is a “prevailing party” for purposes of section 1988. Daffron, therefore, is a “prevailing party” here, and he is entitled to attorney’s fees pursuant to the parties’ settlement agreement. We therefore reverse and remand with instructions to award Daffron attorney’s fees.
In Joyce A. Meyer v. Paul W. Wright, et al, a 12-page opinion, Senior Judge Hoffman writes:
Plaintiff-Appellant Joyce A. Meyer (Joyce) appeals the trial court’s judgment in favor of Defendants-Appellees Paul W. Wright (Paul), individually, and Paul W. Wright and S. Anthony Long (Long), as co-personal representatives of the estate of Charles W. Wright (Wright), deceased. We affirm.

Joyce presents one issue for our review, which we restate as: whether the trial court erred by determining that Paul and Long had rebutted the presumption of undue influence in the execution of the transfer of Wright’s Merrill Lynch account and the real estate deed from Wright to Paul. * * *

Based upon the foregoing discussion and authorities, we conclude that a presumption of undue influence arose in this case because Paul was in a fiduciary relationship with Wright at the time of the questioned transactions, and the transactions benefited Paul. We further conclude that the trial court did not commit error by finding that Paul and Long rebutted the presumption of undue influence in this case and by entering judgment in their favor. Affirmed.

In Ralph E. Lean v. Charles Reed, et al, a 2-1 opinion, is a case involving unregstered securities. As Senior Judge Hoffman writes:
The GOLI stock was not registered under the Indiana Securities Act (hereinafter “the Act”), as is required by Ind. Code § 23-2-1-3. Furthermore, GOLI did not at the time of sale disclose to the purchasers that various stock options and GOLI stock had been acquired by GOLI officers, directors, consultants, and key executives. Such disclosure is required by Ind. Code 23-2-1-12(2). * * *

The Hines decision is consonant with the language of our statute. Ind. Code § 23-2-1-19(d) requires Lean to show that in the exercise of reasonable care he could not have known of the lack of registration and the undisclosed information. In other words, as expressed by the Hines court, Lean’s ignorance will be bliss only to the extent that he can prove that even by the exercise of reasonable care he would have remained ignorant of the true state of affairs. By his admission, a single question to other directors would have provided Lean with salient knowledge about the transaction, and we conclude as a matter of law that Lean has failed to meet the burden set forth by statute. While the statute clearly indicates that some directors may not in the exercise of reasonable care be able to ascertain knowledge pertinent to a stock transaction, that is not the case here.

The trial court was correct in granting summary judgment in favor of the purchasers. Accordingly, we affirm.

CRONE, J., concurs.
BAKER, J., dissents with separate opinion. [which begins on p. 8] I respectfully dissent from the majority opinion. I must first depart from my colleagues’ reliance on Everts and Hines, which emanate from two of our sister states. Although those opinions may be well reasoned and thoughtful, I believe that the more appropriate source of wisdom regarding the Indiana Securities Act is caselaw analyzing the statutory scheme on which our State’s Act is based—the Federal Securities Act of 1933. * * *

Moreover, although Lean admits that had he inquired into the registration of GOLI securities under the ISA he would have learned that the process had not been completed, I do not believe that we can determine as a matter of law that, to exercise reasonable care, Lean had a duty to so inquire. Lean was a brand-new outside director of GOLI with no prior involvement in the transaction. Under these circumstances, I believe that there is ample room for a reasonable difference of opinion.

I certainly do not mean to suggest that a director may remain in blissful or willful ignorance and thereby avoid liability under the Indiana Securities Act. I merely conclude, based upon the federal authorities cited above, that whether a defendant has proved the affirmative defense of reasonable care is nearly always a question of fact. Although it is possible that a rare case could include undisputed facts that lead unerringly to only one conclusion regarding the defendant’s exercise of reasonable care, I do not believe that this is that case. Thus, I would reverse the trial court’s order and remand for trial on this issue.

In Four Winds v. Smith & Debonis , an 18-page opinion, Chief Judge Kirsch's opinion begins:
This case involves a dispute for attorney fees brought by the law firm of Smith & DeBonis, LLC (“Smith”) against its former client, Four Winds, LLC (“Four Winds”). In this appeal, Four Winds raises three issues, which we restate as:

I. Whether the trial court erred in entering judgment for Smith because the case in which Smith earned the contingent attorney fees is still pending in federal court.

II. Whether the trial court erred by failing to conduct a separate hearing on whether Smith’s conduct following its termination constituted a breach of fiduciary duty that would have reduced the fees that Four Winds owed to Smith.

III. Whether the trial court erred when it granted Smith a lien on Four Winds’ property as security for Smith’s unpaid fees, although Smith’s work did not create or obtain the liened property.

We affirm.

In Joseph Stellwag v. State of Indiana, a 10-page opinion, Senior Judge Barteau writes:
Defendant alleges that he was denied the right to a fair trial before an impartial judge. He contends that all of the challenged remarks made throughout his trial cumulatively establish that the trial judge was partial, and that Defendant is entitled to a new trial. * * *

In the present case, Defendant did not object to the trial court’s interruptions, nor did he move for a mistrial. In those situations, generally, a contemporaneous objection is required to preserve an issue for appeal. Id. Instead, Defendant contends that the trial court’s comments collectively constitute fundamental error. * * *

In the present case, it is apparent that the cumulative effect of the trial judge’s comments crossed the barrier of impartiality. [examples omitted] * * *

Furthermore, those incidents likely cumulatively prejudiced Defendant’s case. The trial judge could have excused the jury and admonished Defendant to refrain from gesturing and making comments that could be overheard by the jury about the State’s witnesses. Admonishment in front of the jury was not a function necessary to controlling the courtroom. Further, the trial court objected to a line of questioning prior to the State’s objection. The trial court also gratuitously requested in front of the jury that a defense witness refrain from arguing with the State after the witness had responded in a yes or no fashion to the State’s question. Defendant has established that fundamental error occurred due to the improper intervention of the trial court.

Defendant has established that he is entitled to a new trial. * * * Reversed and remanded.

NFP civil opinions today (2):

Tiffany Wilson v. Greene County Division of Child Services (NFP) - involuntary termination of parental rights, affirmed.

In Scott R. Plothow v. Tristi J. Plothow (NFP), a 10-page opinion (including a 1-page concurring opinion), Judge Robb writes:

Scott Plothow appeals the trial court’s modification of his child support payments to Tristi Plothow, his ex-wife and the mother of their two children. Based on an alleged absence of a substantial and continuing change in circumstances, Scott challenges the trial court’s increase of his payments from $250 per week to $375 per week. He also challenges the trial court’s inclusion of his bonus income in its determination, and alleges that it failed to account for the totality of the circumstances between the parties. Concluding that Tristi met her burden of establishing a substantial and continuing change in circumstances, and that Scott failed to meet the burden of proof as to his other claims, we affirm in part and reverse in part.
NFP criminal opinions today (8) (link to cases):

Charles S. Muncy v. State of Indiana (NFP)

Todd Huth v. State of Indiana (NFP)

Eric D. Curtis v. State of Indiana (NFP)

Jimmy S. Troutman v. State of Indiana (NFP)

Y.F. v. State of Indiana (NFP)

David Nail v. State of Indiana (NFP)

Joetta Allen v. State of Indiana (NFP)

Alfred Armour v. State of Indiana (NFP)

Posted by Marcia Oddi on September 19, 2006 11:11 AM
Posted to Ind. App.Ct. Decisions