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Wednesday, April 23, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

For publication opinions today (5):

In Prime Mortgage USA, Inc. and David M. Law v. Delie T. Nichols, a 67-page (!) opinion, Judge Robb writes:

Prime Mortgage USA, Inc. (“Prime”), and David Law (referred to collectively as the “Defendants”) appeal following the trial court’s order of default judgments in favor of Delie Nichols as a penalty for the Defendants’ discovery violations. The trial court held a hearing on damages, and awarded roughly eight million dollars to Nichols. In a subsequent proceedings supplemental, the trial court issued an order of garnishment on a life insurance policy held by Law. * * *

We conclude that Nichols’s claims were not barred by the statute of limitations or the doctrine of unclean hands and that the trial court did not abuse its discretion in denying the Defendants’ request for a jury trial or in entering a default judgment based on the Defendants’ discovery violations. We further conclude that the trial court’s award of damages was within the scope of the evidence. We also conclude that Nichols’s compensation constitutes a “wage” for purposes of the Wage Payment Statute. However, we conclude that it was improper to grant a judgment against Prime on Nichols’s claim for breach of fiduciary duty, and reverse the trial court’s order in this regard. Finally, we remand with instructions that the trial court determine whether any of Law’s life insurance policy is exempt from execution. Affirmed in part, reversed in part, and remanded.

In Cory L. Bowman v. State of Indiana , a 10-page, 2-1 opinion, Judge May writes:
Cory L. Bowman appeals the denial of his motion for discharge and dismissal. He alleges his prosecution was barred by Indiana Criminal Rule 4(C), the Sixth Amendment to the United States Constitution, and Article 1, Section 12 of the Indiana Constitution. We affirm. * * *

[Re 4(C)] His arrest placed him on notice the State was interested in filing charges against him. See id. at 617-18 (arrestee “is aware he must face a charge of committing a crime on a particular date”). Simple measures, such as leaving a forwarding address or updating his address with the Bureau of Motor Vehicles, would have made it possible for the State to notify Bowman of the charges against him. When the State has made reasonable efforts to locate an arrestee, it cannot be found at fault for delay caused by the accused’s disappearance. To hold otherwise would create an incentive for arrestees to relocate in the hope they will not be found within a year. The trial court did not abuse its discretion by determining the delay was chargeable to Bowman.

[Re constitutional argument] In sum, two of the factors – the length of the delay and Bowman’s prompt assertion of his right to a speedy trial – weigh in favor of Bowman. However, the other two factors – fault and prejudice – weigh against him. As Bowman acknowledges, we have traditionally placed the greatest weight on whether the defendant will be prejudiced. (Appellant’s Br. at 19.) Furthermore, because Bowman could have prevented the delay, we believe his prompt assertion of his right after receiving notice is entitled to little weight. Therefore, we conclude the balance of the factors indicates Bowman’s right to a speedy trial has not been violated. Affirmed.

RILEY, J., concurs.
KIRSCH, J., dissenting with opinion: I respectfully dissent.

The State took no action to notify him of the charges for four and one-third years after learning that Bowman no longer resided at the address that it had for him. There is no evidence that it made any attempt whatsoever to acquire an updated address. There is no evidence that the State even checked the records of the Bureau of Motor Vehicles to determine whether Bowman had updated his address. Indeed, when Bowman did update his address with the Bureau in February 2006, the State still took no action to notify him of the charges. Had Bowman not been stopped for speeding in Illinois, this matter would still be pending with no notice to the defendant.

My colleagues hold that the State did what it reasonably could to notify Bowman of the charges. I disagree. From my perspective, the State did virtually nothing. I believe the trial court erred in determining that the four-year, four-month delay was attributable to Bowman. I would reverse the trial court’s order and remand with instructions to dismiss the pending charge.

ILB Note: The April 8th, 2-1 decision by another COA panel , in the case of Robert Jeffrey Pelley v. State of Indiana (see list of ILB entries here), which reversed a murder conviction under the speedy trial provision, is not referenced in today's opinion. The April 8th panel was Sharpnack, and Riley, with Friedlander dissenting; today's panel was May and Riley, with Kirsch dissenting.

Charles Sweeney v. State of Indiana - "Sweeney did not present any testimony at the post-conviction hearing from which the post-conviction court could make a factual determination as to whether or not Clark County officials or State of Indiana officials were accompanied by a federal official when transporting Sweeney from Kentucky to Indiana. No statutory violation was established. Also, Sweeney does not present legal authority for the proposition that his Indiana sentence was “stopped,” illegal, or subject to “correction” if challenged by appellate counsel.

"In light of the foregoing, Sweeney has not established that he received ineffective assistance of appellate counsel due to counsel’s failure to fully develop an ineffectiveness argument pertaining to trial counsel."

In Nicole A. Schaffer v. Robert J.Schaffer, an 11-page opinion, Judge Vaidik writes:

Nicole A. Schaffer appeals the trial court’s denial of her request to terminate third party stepparent Robert J. Schaffer’s visitation rights with her daughter, M.S. Specifically, Nicole argues that the trial court’s denial violated her due process rights because the court failed to apply a parental presumption favoring her decisions regarding the care, custody, and control of M.S. Finding that this parental presumption applies to initial visitation proceedings but that Nicole did not appeal the order establishing visitation between Robert and M.S., we conclude that the parental presumption does not apply to the modification of visitation. As such, because Nicole has failed to prove that it is in the best interests of M.S. to terminate visitation with Robert, we affirm the judgment of the trial court.
Mario L. Sims, Sr. v. Linda Lopez - "Mario Sims appeals the trial court’s affirmation of a protective order requested by Sims’ ex-wife Linda Lopez and entered ex parte. We remand so the trial court may determine whether the protective order would prevent Sims from prosecuting any pre-existing civil cases."

NFP civil opinions today (2):

In Re: The Marriage of Christopher Mark Kincaid v. Shelley Rae Kincaid (NFP) - "Christopher Mark Kincaid appeals the trial court’s calculation of child support. Because two of the court’s findings of fact are clearly erroneous, we reverse and remand for the court to re-determine Christopher’s weekly income and recalculate support using corrected incomes for both Christopher and his ex-wife, Shelley."

Michelle L. Wood (Mulhern) v. Terry L. Wood (NFP) - "Michelle L. Wood (n/k/a Mulhern) appeals the order dissolving her marriage to Terry L. Wood. She asserts error in the admission of evidence, determination of custody, and assignment of income to her for child support purposes. We affirm."

NFP criminal opinions today (9):

Brian K. Wynne v. State of Indiana (NFP)

Robert Hicks v. State of Indiana (NFP)

William Tyrone Thomas v. State of Indiana (NFP)

James Williams v. State of Indiana (NFP)

David Long v. State of Indiana (NFP)

Lana Thomas v. State of Indiana (NFP)

Jason A. Nicely v. State of Indiana (NFP)

James Love v. State of Indiana (NFP)

Marvin Lee Kelly v. State of Indiana (NFP)

Posted by Marcia Oddi on April 23, 2008 01:49 PM
Posted to Ind. App.Ct. Decisions