« Ind. Courts - Chief Justice Shepard to Deliver 20th State of the Judiciary Address this afternoon | Main | Ind. Courts - Steuben bans cell phones »

Wednesday, January 17, 2007

Ind. Decisions - Court of Appeals issues 8 today (and 13 NFP)

Many opinions today... (link to cases):

For publication opinions today (8):

In Jill Scott v. Jeremy Irmeger, a 12-page, 2-1 opinion with a dissent beginning on p. 10, Judge Mathias writes:

Jill Scott (“Scott”) brings this appeal challenging the Carroll Circuit Court’s order awarding Jeremy Irmeger (“Irmeger”) attorney’s fees under the qualified settlement offer statute when Irmeger did not personally pay the attorney’s fees. Concluding that a defendant may incur attorney’s fees even though a third party pays such fees on the defendant’s behalf, we affirm. * * *

Based on similar public policy arguments, “Indiana courts have repeatedly held that a party is not required to personally pay the bills for his representation to be eligible for an award of attorney’s fees.” * * * Based on similar public policy arguments, “Indiana courts have repeatedly held that a party is not required to personally pay the bills for his representation to be eligible for an award of attorney’s fees.” * * *

Our supreme court held in Beeson v. Christian, 594 N.E.2d 441, 443 (Ind. 1992) that it was not an abuse of discretion for the trial court to award appellate attorney’s fees, even though defendant’s attorney testified he would not charge her any fees for his work done on appeal. Our supreme court first examined the policy behind Indiana Code section 31-1-11.5-6,3 which allowed courts to award attorney’s fees in dissolution actions where a party could not otherwise afford an attorney. Id. at 443. The court then concluded that this “public policy would be undermined if [it] were to hold that a party must be personally obligated to pay attorney fees before the trial court could order the other party to pay those fees.” Id. “Such a policy might, in some circumstances, effectively eliminate the right to appeal in dissolution proceedings,” the court determined.

We likewise conclude that the public policy of persuading plaintiffs to carefully evaluate the merits of their claim before insisting on proceeding to trial would be undermined if we were to hold that the QSO Statute does not permit a defendant’s recovery where a third party has paid the attorney’s fees on his or her behalf. Furthermore, we find no support in our case law analyzing similar recovery provisions that interprets the word “incurred” as “personally paid.” Accordingly, we conclude that the trial court appropriately awarded Irmeger attorney’s fees under the QSO Statute. Affirmed.

KIRSCH, C. J., concurs. SHARPNACK, J., dissents with separate opinion. [which begins] I respectfully dissent because I conclude that the trial court erred in its interpretation of Ind. Code § 34-50-1-6, the Qualified Settlement Offer statute (“QSO statute”). I conclude that under the plain language of the statute Irmeger did not incur attorney fees and is not entitled to an award of $1,000 under the QSO statute.

Roger & Shirley Ashbaugh v. Kathy Horvath - "We conclude that as a matter of law, the evidence shows that the Moores did not exercise their option to purchase upon the terms specified in the lease option agreement within the twelve-month period after the addendum was signed. Therefore, we reverse the trial court’s entry of summary judgment on behalf of Horvath and instruct the trial court to enter summary judgment on behalf of the Ashbaughs. As Horvath is no longer a prevailing party, we vacate the trial court’s award of her attorney’s fees."

In Scott B. Carneal v. State of Indiana, a 9-page, 2-1 opinion with a dissent beginning on p. 8, Judge Crone writes:

Scott Carneal appeals the sentence imposed after the revocation of his probation. Raising an equitable argument, Carneal asserts: “The trial court erred when it failed to grant [him] credit for time served in Illinois, because [he] had entered into a contract with Illinois, which provided that his Indiana sentence would run concurrent with his Illinois sentence.” We affirm.

Judge Sharpnack concurs, Judge Sullivan dissents with opinion [which states in part] : The clearly stated determination made by the Illinois court was that the Indiana sentence and the Illinois sentence were to be served concurrently. The principle of judicial comity calls for the courts of one state to “give effect to the laws and judicial decisions of another.” * * *

The doctrine of comity should be applied in this case. To order only a portion of the suspended Indiana sentence, in effect giving credit for having served his Illinois sentence, would violate no Indiana law nor would it do injury to any other Indiana citizen. I would reverse and remand with instructions to modify the judgment in accordance with this opinion.

Frederick S. & Roseanne Shuger v. State of Indiana is an 18-page, 2-1 opinion, with the dissent beginning on p. 18. It involves Indiana's Hunter Harassment law and an incident that took place in Beverly Shores where a jury found defendants guilty "for interfering with a town-sanctioned deer kill in 2001." See this May, 2, 2006 ILB entry. Judge Mathias states the issues as: "Whether Indiana’s Hunter Harassment Act is constitutional; and Whether the State presented sufficient evidence to support the Shugers’ convictions under the Hunter Harassment Act. We affirm."

The constitutionality was challenged on First Amendment grounds, along with vagueness, and overbroad. The decision concludes; "We conclude that Indiana’s Hunter Harassment Act is constitutional and that there was sufficient evidence presented at trial to support the Shugers’ convictions for violating the Act."

Chief Judge Kirsch dissents:

I respectfully dissent. While I agree with my colleagues that Frederick and Rosanne Shuger had the requisite intent to prevent or hinder the legal taking of deer, I find no evidence in the record that either they or their dog disturbed or tended to disturb or otherwise affect the behavior of any deer. There is no evidence that any particular deer left the area or took any other action in response to their actions. In the absence of such evidence, I believe the State failed to make its case. Accordingly, I would reverse the convictions. Because I would reverse on evidentiary grounds, I do not reach the Shugers’ constitutional arguments.
Bruce L. Moreton and Janet F. Moreton d/b/a AHR Construction & Remodeling v. Auto-Owners Insurance, as Subrogee of Jackie A. Gentry and Bill Gentry - "Bruce and Janet Moreton d/b/a AHR Construction & Remodeling (“AHR”) appeal the denial of their motion for summary judgment in a lawsuit filed against AHR by Auto-Owners Insurance. Auto-Owners is the insurer of the home of Bill and Jackie Gentry and is the partial subrogee of the Gentrys’ claim against AHR for damages occurring to the Gentrys’ home following work by AHR. Because Auto-Owners, as the Gentrys’ insurer and subrogee, was not bound by Gentry’s counterclaim for his uninsured damages in AHR’s small claims action against Gentry for payment of the contract price, we affirm the denial of AHR’s summary judgment motion and remand for further proceedings."

State of Indiana v. Kevin J. Lucas & Matthew S. Winkle - "The State of Indiana brings this interlocutory appeal from the Shelby Superior Court’s grant of suppression motions filed by Kevin J. Lucas and Matthew Winkle (collectively “the Defendants”). The State raises one issue: whether the trial court erred when it granted Defendants’ motions to suppress evidence discovered in a locked container inside a stolen van the Defendants were traveling in. Concluding that the trial court properly suppressed the evidence recovered from the locked metal box, we affirm. * * *

"As the trial court aptly noted, the officers “had control of the locked box and could have easily obtained a search warrant to open it, just as they did to investigate the contents of the cell phone and computer diskettes five days after the Defendants’ arrest.” Appellant’s App. p. 86. We agree. Under these facts and circumstances, we conclude that the warrantless search of the locked metal box was unreasonable under Article I, Section 11 of the Indiana Constitution."

Charles Brown v. State of Indiana - "Charles Brown appeals his conviction of attempted obstruction of justice. He argues the evidence against him was insufficient to establish his statements amounted to coercion. Because Brown’s statements were not declarations of consequences that would follow for failure to comply with his request, we reverse."

In Cletus Jones v. State of Indiana, a 13-page, 2-1 opinion (with the dissent beginning on p. ), Judge Sharpnack writes:

The first issue is whether the trial court properly denied Jones’s Batson challenge. “The exercise of racially discriminatory peremptory challenges is constitutionally impermissible.” McCormick v. State, 803 N.E.2d 1108, 1110 (Ind. 2004). “Upon appellate review, a trial court’s decision concerning whether a peremptory challenge is discriminatory is given great deference, and will be set aside only if found to be clearly erroneous.” Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001). * * *

Jones offered no argument to the trial court as to why the State’s explanation for striking Johnson should be disbelieved and found to be pretext, masking a discriminatory intent for striking Johnson from the jury. 3 Therefore, we are unable to find that the strike was improper. See, e.g., Williams v. State, 818 N.E.2d 970, 974 (Ind. Ct. App. 2004) (holding that trial court’s decision was not clearly erroneous where the trial court overruled Batson objection based on the State peremptorily striking an African-American juror due to his “dismissive attitude with respect to the case”) vacated in part and summarily aff’d in pertinent part by Williams v. State, 838 N.E.2d 1019 (Ind. 2005). * * *

Mathais, J. concurs; Kirsch, C.J., dissents with separate opinion: I respectfully dissent.

Since the decision of the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), our subsequent jurisprudence has largely eroded what seemed at the time to be a landmark decision. Today, few prosecutors or other trial counsel are so inept that, when faced with a Batson challenge, they are unable to utter an explanation that is facially racially neutral for striking all members of a cognizable racial group from a prospective jury panel. And, the burden of showing purposeful racial discrimination has proved largely unsustainable within the confines of any individual jury selection process. As a result, two decades after Batson, its goal of ensuring “that no citizen is disqualified from jury service because of his race” remains elusive. * * *

Here, the trial court here utilized an improper standard -- That the challenger must show a pattern of racial discrimination. It then found a racially neutral reason for “at least one” of the peremptory strikes, but failed to make a determination as to the other. The majority concludes that the trial court’s methodology was improper, but it then proceeds itself to make the determinations that the prosecutor’s reason for the second peremptory challenge was racially neutral and the challenger failed to show purposeful racial discrimination.

Here is where I part from my colleagues. I think that only the trial judge can determine whether the peremptory challenge is racially motivated and only the trial judge can decide whether purposeful discrimination has been shown. I do not think that we should make these determinations from reviewing a cold record. Accordingly, I would reverse Jones’ conviction and remand for a new trial.

NFP civil opinions today (5):

Stephen J. Engel v. The Strang Family Trust, Earl Strang and Donna-Belle Strang (NFP)

Diane Myers v. Elkhart Community Schools (NFP)

Jack Runion v. Acuity, A Mutual Insurance Co. (NFP)

Term. of Parental Rights of A.L.D., Crystal H. Dumas v. Carroll County DCSK (NFP)

Sharlene Haven v. Jasper County Department of Child Services (NFP)

NFP criminal opinions today (8)

Charles D. Lain v. State of Indiana (NFP)

State of Indiana v. Michael Shaw (NFP)

Michael Ryan McGill v. State of Indiana (NFP)

Daniel Farabee v. State of Indiana (NFP)

Ryan L. Berry v. State of Indiana (NFP)

Michael T. Paille v. State of Indiana (NFP)

State of Indiana v. Raymond Gregory (NFP)

David I. Franklin v. State of Indiana (NFP)

Posted by Marcia Oddi on January 17, 2007 12:58 PM
Posted to Ind. App.Ct. Decisions