The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)

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Thursday, June 07, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)

For publication opinions today (2):

In Norman R. Carlson, Jr., et al v. Sweeney, Dabagia, Donoghue, Thorne, James & Pagos, et al, a 28-page opinion dealing with questions of alleged attorney malpractice in will drafting, Judge Robb writes:

Norman R. Carlson, Jr., individually, and as executor of the estates of Norman R. Carlson and Hilda D. Carlson, and as Trustee of the Trust established under the last wills and testaments of Norman Sr. and Hilda, Margaret Ann Carlson, Beth Carlson Montigue, and David R. Carlson, (when referred to collectively, the “Carlsons”), filed a complaint against the law firm of Sweeney, Dabagia, Donoghue, Thorne, Janes and Pagos, and lawyer John H. Sweeney (the “Lawyers”), alleging legal malpractice that resulted in adverse tax consequences. The Lawyers filed a motion for summary judgment, raising two issues. The trial court denied the Lawyers’ motion as to one issue, but granted it as to the other. The Carlsons now appeal, raising a single issue, which we restate as whether the trial court properly granted summary judgment based on its determination that reformations to the Wills drafted by the Lawyers effectively eliminated any malpractice that occurred relating to the drafting of the original Wills. On cross-appeal, the Lawyers raise a single issue, which we restate as whether the trial court properly denied its motion for summary judgment on the grounds that the original Wills would result in adverse tax consequences. The Lawyers also raise the following issues: 1) whether the “substantial adverse interest exception” protects the Carlsons from adverse tax consequences; 2) whether the Carlsons have brought this suit too early, as the IRS has not yet assigned a tax penalty; and 3) whether the trial court improperly considered the opinion of an attorney hired by the Carlsons. We conclude the adverse interest exception does not protect the Carlsons, the Carlsons are not precluded from bringing their suit at this time, and that the Lawyers waived their argument relating to the opinion of the expert witness by not raising it before the trial court. We further conclude that the trial court properly found that the original Wills would result in adverse tax consequences, and affirm the trial court’s denial of the Lawyers’ motion for summary judgment on that issue. However, we conclude that the reformations did not effectively avoid potential adverse tax consequences, reverse the trial court’s grant of summary judgment on that issue, and remand for further proceedings. * * *

Conclusion We conclude that the trial court properly determined that the original Wills did not establish an ascertainable standard regarding a Trustee’s ability to invade the trust corpus; that the “adverse interest” clause does not protect the Trust from tax liability; and that the Carlsons did not bring this suit prematurely. Therefore, we affirm the trial court’s denial of the summary judgment motion on these grounds. We also conclude that the reformations did not comport with Indiana law, and that the trial court therefore improperly granted summary judgment. We therefore reverse the trial courts grant of summary judgment and remand for further proceedings.

Chaffew James Curtis Scott v. State of Indiana - "To find Scott guilty of both forgery and money laundering requires proof of at least one unique evidentiary fact. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002). For Scott’s forgery conviction, the unique fact is that Scott uttered or presented a forged check to the bank to be deposited into his account. For Scott’s money laundering conviction, the unique fact is that Scott agreed to facilitate a broader money-laundering scheme, wherein he agreed to receive and deposit altered checks. In addition, Scott agreed to wire ninety percent of the money overseas, or in other words to facilitate the transaction involving criminal proceeds. Scott did indeed receive a check from Lau for $68,000 in furtherance of this scheme. Because each conviction was established by at least one unique evidentiary fact, we conclude that Scott’s convictions do not violate Indiana’s prohibition against double jeopardy. Conclusion Scott’s convictions are supported by sufficient evidence and they do not violate Indiana’s double jeopardy clause."

NFP civil opinions today (5):

Involuntary Term. of Parent-Child Rel. of L.D., and Natasha Bowman and Larry Dennison v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - termination, affirmed.

Involuntary Term. of Parent-Child Rel. of K.T. and Dennis Brown v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - termination, affirmed.

In Christy Gehrig v. Mary Jefferson (NFP), a 10-page, 2-1 opinion, Judge Mathais writes for the majority:

Christy Gehrig (“Gehrig”) appeals the Allen Superior Court’s denial of her motion for attorney’s fees under the qualified settlement offer statute. Concluding that a defendant may incur attorney’s fees even though a third party pays such fees on the defendant’s behalf, we reverse and remand for proceedings consistent with this opinion. * * *

On appeal, Gehrig maintains that a party is not required to personally pay the legal costs for his or her representation in order to be eligible for an award of attorney’s fees under the QSO statute. Jefferson, on the other hand, contends that the word “incurred” in the statute must be narrowly construed to signify that only a party who has personally paid such attorney’s fees may recoup them under the statute. * * *

Our court recently interpreted the language “incurred by the offeror” in Scott v. Irmeger, 859 N.E.2d 1238 (Ind. Ct. App. 2007). In Scott, we determined that a defendant may incur attorney’s fees even though a third party pays such fees on his or her behalf, entitling the defendant to recover attorney’s fees under the QSO statute. * * *

In the case at hand, Jefferson refused to settle for any amount less than $7500. Yet, the jury awarded Jefferson no damages. Believing that the QSO statute would not apply to her case, Jefferson forced Gehrig to incur more than $13,000 in attorney’s fees in preparation for a jury trial. A primary purpose behind the QSO statute is to provide the offering parties with leverage to encourage the other party to seriously evaluate the merits of his or her case. Scott, 859 N.E.2d at 1241. Accordingly, we conclude that the trial court should have awarded attorney’s fees to Gehrig under the QSO statute. Reversed and remanded for proceedings consistent with this opinion.

KIRSCH, J., concurs. SHARPNACK, J., dissents with separate opinion [which begins:] By the happenstance of our case assignment system, this case was assigned to the same panel as Scott v. Irmeger, 859 N.E.2d 1238 (Ind. Ct. App. 2007), reh’g denied. In that case, the trial court awarded attorney fees to the defendant from the plaintiff. Here, the trial court refused to award attorney fees to the defendant. In each case, the defendant was represented by an attorney employed and selected by the defendant’s insurance company. I dissented in Scott, and I dissent here.

Termination of Parental Rights of T.W., I.W., and D.W., and Clinton Walden v. Gibson Co. Child Services (NFP) - termination, affirmed.

Henry Booker v. Bartholomew Co. Dept. of Child Services (NFP) - termination, affirmed.

NFP criminal opinions today (12):

Stephen E. Koscher v. State of Indiana (NFP)

Mark A. Jones v. State of Indiana (NFP)

Ferid Ogresevic v. State of Indiana (NFP)

Donna Harlow v. State of Indiana (NFP)

Ralph Wood v. State of Indiana (NFP)

Sergio Campos v. State of Indiana

Anibal Saravia v. State of Indiana (NFP)

Eddie Lee Strong v. State of Indiana (NFP)

Jeffery D. Banter v. State of Indiana (NFP)