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Tuesday, April 24, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In John T. Irish v. F. Lawrence Woods, a 14-page opinion, Judge Najam writes:

John T. Irish appeals the trial court’s judgment dismissing Count I of his original complaint and Count I of his amended complaint for failure to state a claim upon which relief can be granted under Trial Rule 12(B)(6). Irish raises two issues for our review, which we consolidate and restate as whether the trial court erred when it held as a matter of law that Woods does not have common liability as a cosurety with Irish but is a subsurety under the documents Irish attached to his complaints. We affirm. * * *

Conclusion. The plain text of Note III, Woods’s guaranty of Note III, and the facts alleged in Irish’s complaints demonstrate that Irish, as a borrower and accommodation party to the L.L.C. on Note III, is both a primary obligor and the principal surety on that Note for any debt owed in the event of a default by the L.L.C. And Woods’s guaranty demonstrates that his liability on Note III is secondary to that of both the L.L.C. and Irish. Under those circumstances, Irish, the principal surety, is fully liable for the cost of performance while Woods is a subsurety liable only in the event the L.L.C. or Irish should fail to perform. See id. § 53(3). Hence, Irish is not entitled to contribution from Woods. See id. § 59 cmt. a. Nor may Irish recover from Woods as a holder merely by purchasing Note III. See id. § 21 cmt. i. Thus, Irish has failed to state a claim upon which relief can be granted. Affirmed. MAY, J., and MATHIAS, J., concur.

In Kyle Hamilton v. State of Indiana , an 11-page opinion, Chief Judge Baker concludes:
Here, Hamilton cites no authority in support of her contention that the mistrial, the State’s subsequent motion to reset the trial, and the trial court’s grant of that motion failed to afford her clear notice of the other two causes. To the contrary, Hamilton was given more than adequate notice of the charges. Indeed, the fortuitous occurrence of a mistrial placed Hamilton in the advantageous position of being able to anticipate what evidence might be presented at the second trial. However, her failure to seek replacement counsel and the unwarranted assumption that she no longer faced those charges nullified any advantage that she may otherwise have had. While the trial court could have specifically referred to the charges in all three cause numbers at the omnibus hearing, we cannot agree that such an omission negated Hamilton’s notice of the charges and her opportunity to answer those charges. Therefore, Hamilton’s due process argument fails. The judgment of the trial court is affirmed.
In Lemuel Rosendaul v. State of Indiana, a 10-page opinion, Judge Vaidik writes:
Lemuel Rosendaul appeals his conviction for theft as a Class D felony. Specifically, he argues that the trial court violated his due process rights by interrogating him during his bench trial about some of the filings he had signed in this case. Because the trial court’s interrogation of Rosendaul aided the court in its fact-finding responsibilities and gave Rosendaul an opportunity to explain these filings, Rosendaul cannot establish a due process violation. We therefore affirm the trial court. * * *

The only other option for the trial court would have been to not question Rosendaul about the filings he had signed, thereby giving him no opportunity to explain, and then find him not credible as a result. Here, Rosendaul was given an opportunity to deny that he authored these filings. Given that this was a bench trial, Rosendaul cannot establish fundamental error in the trial court’s interrogation of him because it aided the court in its fact-finding responsibilities, was done in an impartial manner, and gave him an opportunity to explain why the filings he had signed were not dated in “military style.” We therefore affirm the trial court.

NFP civil opinions today (6):

James Loomis v. Barbara Loomis (NFP) - complex child support.

James Michael Miklos v. Alice May Miklos (NFP) - dissolution decree, affirmed.

Mallory Homola v. Richard M. Helton (NFP) - "Given that the evidence supports a conclusion that, for the rest of his life, the tingling and numbness will affect Helton on a daily basis, interrupting his work and home life, and that during the first two weeks following the accident he was unable to work or take part in family activities, we conclude that the jury did not abuse its discretion in awarding Helton $40,000. The judgment of the trial court is affirmed."

Murray Franklin Jacks v. Marla D. Jacks n/k/a Marla D. Valenta (NFP) - Child support, reversed in part.

Brian K. Lonneman v. Carole A. Lonneman (NFP) - dissolution decree, affirmed.

Termination of Parent-Child Relationship of I.E.A.T.; Destiny (Wooten) Jackson v. Tippecanoe County Department of Child Services (NFP) - Termination of parental rights, affirmed.

NFP criminal opinions today (6):

Jeremy A. Ratliff v. State of Indiana (NFP)

Justin Nicholas Shinabarger v. State of Indiana (NFP)

Henry Lewis v. State of Indiana (NFP)

Ricky R. Slusher v. State of Indiana (NFP)

Tyrone Bradshaw v. State of Indiana (NFP)

Reginald Durr v. State of Indiana (NFP)

Posted by Marcia Oddi on April 24, 2007 12:18 PM
Posted to Ind. App.Ct. Decisions