« Ind. Decisions - Transfer list for week ending December 22, 2006 | Main | Ind. Court - Judge orders defendant to get rid of cable TV »

Friday, December 22, 2006

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Morris Windhorst v. State of Indiana, a 2-1 opinion, Judge Baker's partial dissent begins on p. 13:

I agree with the majority’s determination that our legislature’s amendment of Indiana Code section 35-38-1-7.1 indicates an intention to change the common law as it existed before April 2005 regarding the requirement of “a sentencing statement anytime the trial court imposes a sentence other than the presumptive.” Slip op. at 4 n.2 (quoting McMahon v. State, No. 79A02-0603-CR-170, 2006 WL 3258325 at *5 (Ind. Ct. App. Nov. 13, 2006)).

Hence, it is also my view that the pronouncement made by a different panel of this court in McMahon would effectively resurrect the precise Sixth Amendment problems that the legislature sought to eliminate with its amendment of Indiana’s sentencing scheme.

On the other hand, I cannot agree that a four-year sentence was appropriate in this circumstance. Indeed, the State does not dispute Windhorst’s contention that he had no criminal history. And Windhorst entered into a plea agreement with the State just two and one-half months after his arrest, Appellant’s App. 4-6, 22-24, thus indicating an acceptance of responsibility for his actions. In my view, Windhorst’s decision to plead guilty at such an early stage of the proceedings saved the State significant time and resources, thus affording it a substantial benefit.

In Christine Masick and Jonathon Masick v. McColly Realtors, Inc. and Saxon Drywall, Inc., a 17-page opinion, Judge May writes:
Christine Masick fell on a temporary step and hit her head while looking at a house that was under construction and listed for sale with McColly Realtors. She sued McColly and Saxon Drywall, a subcontractor whose employees were working on the house, alleging McColly and Saxon had a duty to warn her of the defective step but failed to do so. The trial court granted summary judgment for McColly and Saxon; we affirm in part, reverse in part, and remand. * * *

Neither McColly nor Saxon exercised sufficient control over the premises to give rise to a duty, under premises liability standards, to warn Masick about the step. We decline to impose on real estate brokers an independent duty to inspect properties they show and to warn prospective customers about dangerous conditions they so discover, and McColly’s agent did not gratuitously undertake such a duty. However, we hold a real estate broker, like a prospective landlord, has a duty to warn a prospective buyer of hidden defects known to the broker but unknown to the tenant. We accordingly affirm summary judgment for Saxon but reverse summary judgment for McColly. Affirmed in part, reversed in part, and remanded.

NFP civil opinions today (2):

In the Matter of A.M. (NFP)

In Northern Indiana Public Service Company v. Jupiter Aluminum Corporation and Indiana Office of Utility Consumer Counselor (NFP), a 15-page opinion, Judge May writes:

Northern Indiana Public Service Company (“NIPSCO”) appeals and Jupiter Aluminum Corporation (“Jupiter”) cross-appeals from a decision of the Indiana Utility Regulatory Commission (“IURC” or “Commission”).

NIPSCO raises two related issues, which we restate as: 1) whether the IURC exceeded its statutory authority by requiring NIPSCO to make a direct cash payment of 2.5 million dollars to Jupiter for the purchase of equipment that will benefit Jupiter and that Jupiter will own; and 2) whether the IURC exceeded its statutory authority by prohibiting NIPSCO from recovering the 2.5 million dollars in rates. In its cross-appeal, Jupiter raises one issue: whether the “complete resolution” language in the IURC order bars Jupiter from pursuing legal remedies against NIPSCO.

The resolution of the first two issues depends in part on whether the Commission concluded NIPSCO provided “reasonably adequate service” to Jupiter. However, the Commission’s conclusion on this issue is ambiguous and does not permit us to review the order. Nor can we determine what the Commission intended when it used the phrase “complete resolution.” Accordingly, we remand this case to the Commission with instructions to clarify its order, enter appropriate findings and conclusions, and submit the revised order to us within sixty days of the date of this opinion. * * *

Much of the language in the findings and analysis section of the Commission’s Order is tentative and indeterminate, making it difficult to ascertain which party’s factual assertions the Commission credited and, in turn, what the Commission found. Because of the ambiguity in the Final Order regarding whether NIPSCO provided reasonably adequate service, each party can support its interpretation of the Order by referring to various statements in the Commission’s Final and Interim Orders and in the reports from GE Industrial.

NFP criminal opinions today (7) (link to cases):

Robert L. Spann, Jr. v. State of Indiana (NFP)

Carolyn S. Riggs v. Larry L. Riggs (NFP)

Brandon Roe v. State of Indiana (NFP)

Burton Florence v. State of Indiana (NFP)

Anthony J. DeMarco v. State of Indiana (NFP)

Christopher Roler v. State of Indiana (NFP)

Arthur J. Mance v. State of Indiana (NFP)

William D. Smith v. State of Indiana (NFP) [from 12/21/06]

Posted by Marcia Oddi on December 22, 2006 11:54 PM
Posted to Ind. App.Ct. Decisions