The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 6 today (and 19 NFP)

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Thursday, April 09, 2009

Ind. Decisions - Court of Appeals issues 6 today (and 19 NFP)

For publication opinions today (6):

Payday Today, Inc. v. Anne DeFreeuw is a 10-page opinion by Sr. Judge Bartaeu:

Payday raises two issues for our review, which we restate as: I. Whether the trial court erred in allowing Payday to collect under Ind. Code § 34-24-3-1 but in denying Payday’s alternative request for damages for breach of a small loan (payday) contract. II. Whether the trial court erred in not allowing Payday to recover its claim for the payment of 325.89% interest on a loan made by Payday to Defreeuw.

On June 5, 2004, Defreeuw applied for a $200.00 loan from Payday. The stated term of the loan was for fourteen days and the finance charge was $25.00.

Defreeuw presented security to Payday in the form of a postdated check in the amount of $225.00 to cover the principal and the finance charge. Defreeuw did not pay off the loan within fourteen days, and when her check was presented by Payday, it was returned by Defreeuw’s bank stamped “closed account.”

Payday sued Defreeuw in small claims court for fraud and requested treble damages in the amount of $675.00, attorney fees in the amount of $500.00, and a one- time statutory fee in the amount of $20.00, totaling $1,195.00 plus court costs in the amount of $46.00. In the alternative, Payday also requested damages in the amount of $2,100.00 to represent the 325.89% interest it believed it was charging over the 84 bi- weekly periods when the loan was unpaid.

At the hearing on this matter, Payday presented evidence in support of its argument that Defreeuw committed fraud by falsely asserting that she had no outstanding payday loans and by closing her account before Payday could cash her check. Defreeuw did not dispute the first assertion, but she did argue she had no intent to defraud Payday at the time she submitted the post-dated check.

The trial court ordered Defreeuw to pay the $1,195.00 plus court costs because she “provided false information on her loan application when she failed to disclose to [Payday] other outstanding payday loans.” * * *

I. COURT’S REFUSAL TO ORDER PAYMENT OF PAYDAY’S ALTERNATIVE CLAIM * * *

Indiana Trial Rule 8(E)(2) allows a party to plead alternative and even inconsistent theories of recovery. * * * Here, Payday clearly pled fraud with breach of contract as an alternative thereto. Stated differently, Payday did not plead that it was entitled to recover under both theories. Indeed, it waited until the end of its case in chief in a small claims hearing involving a pro se defendant to assert for the first time that it should recover for both fraud and the so-called alternative breach of contract claim. The trial court understandably ruled on the fraud claim that Payday indicated was the issue before the court but did not address the claim that was designated by Payday as solely a backup claim. It appears that the trial court understood that Defreeuw did not have timely notice of Payday’s intent to recover under both theories. We do not find any error here.

II. BREACH OF CONTRACT DAMAGES

The nature of this type of proceedings involving a loan to a destitute borrower makes it unlikely that a borrower will ever be able to participate in the appellate process. * * *

Although Payday makes no cogent argument pertaining to the Small Loans Act, we assume that Payday believes that the Small Loans Act frees it from both the usury and loansharking statutes and is license to ignore the historically moral and practical foundations for usury statutes and charge any amount of interest that the so-called payday loan “free market” will bear. In this case, Payday believes that rate to be based upon the transformation of its initial two-week 15% finance charge into an APR of 325.89%. We disagree.

Credit crises are, in large part, the result of poor borrowing choices, limited loan availability, and unconscionable interest charges. In view of these public policy considerations, we do not believe our legislature intended to free lenders to assess the unconscionable interest rate sought by Payday against Defreeuw. * * *

The “Promise to Pay” is unambiguous, and it does not require Defreeuw to pay any annualized interest rate. The listing of the A.P.R. required by the Truth in Lending Act merely informs Defreeuw that the finance charge she agreed to pay, if annualized, would represent an A.P.R. of an enormous amount. It does not alter or add to the unambiguous “Promise to Pay” section of the contract. Stated simply, if Payday wants to collect interest, it must include that interest as part of the agreement between itself and the payday borrower. Because Payday failed to do so, it cannot recover any interest. Understandably, Payday characterizes this result as a windfall to its borrowers. We note, however, that it is a “windfall” created by the language of Payday’s contract.

CONCLUSION Payday waived its claimed right to recover for breach of contract when it pled such recovery as an alternative to its recovery for fraud. Waiver notwithstanding, Payday cannot recover under the Small Loans Act or under its contract with Defreeuw. Accordingly, the small claims court did not err when it allowed only recovery of damages for fraud. Affirmed.

[Emphases added by ILB]

In Odetta Clary v. Patrick H. Dibble and K & P Roofing Siding & Home Improvement Inc. , a 13-page opinion, Judge Darden writes:

Clary asserts that the trial court erred in granting K&P's motion for summary judgment. She raises several issues, one of which we find dispositive: whether "K&P owed [Clary] a duty not to allow . . . Dibble to leave the golf course impaired." * * *

We initially look at the relationship between the parties in determining whether a duty existed. * * *

Next, we examine whether the harm to the person injured was reasonably foreseeable. * * *

The final factor in determining whether a duty exists is public policy concerns. * * *

Upon balancing the three factors necessary in determining whether a duty exists, we conclude that K&P did not owe a duty to Clary. We therefore find no error in granting K&P's motion for summary judgment. Affirmed.

Stephen M. Hay v. Ronald and Gloria Bumgartner - "A portion of trial court’s award of attorney fees is contrary to Indiana law and Trial Rule 65(C). We affirm in part, reverse in part, and remand for the trial court to calculate and enter an award consistent with this opinion."

David M. Burks-Bey v. State of Indiana - "Based on the foregoing, we conclude that the trial court erred in dismissing Burks- Bey’s Motion for Additional Earned Credit Time for lack of subject matter jurisdiction without first determining whether Burks-Bey has exhausted his administrative remedies. As such, we remand this cause to the trial court with instructions to make that determination. "

DeWayne Lewis v. State of Indiana - "Dewayne Lewis appeals his conviction of possession of marijuana, a Class A misdemeanor. He argues the State failed to establish he was lawfully arrested, and therefore, the marijuana was erroneously admitted. We affirm. "

In Shewanda B. Beattie v. State of Indiana , an 11-page decision with two opinions, Judge May writes:

Shewanda Beattie was charged with dealing in cocaine, a Class B felony; possession of cocaine in a family housing complex, a Class B felony; and possession of marijuana, a Class A misdemeanor. The verdict forms provided to the jury included simple possession of cocaine as a lesser-included offense. The jury found Beattie not guilty of dealing in cocaine and possession of cocaine, but found her guilty of possessing cocaine in a family housing complex and possession of marijuana. Because the jury?s verdicts are inconsistent, we reverse her conviction of possession of cocaine in a family housing complex. However, the evidence seized from her apartment was properly admitted, and there was sufficient evidence to support a conviction of possession of cocaine in a family housing complex. Therefore, we remand for a new trial on that charge. * * *

FRIEDLANDER, J., concurs.
Bradford, J., concurs with separate opinion. [which concludes] I would urge the Supreme Court to adopt the position announced in Powell, 469 U.S. at 68-69, wherein the United States Supreme Court abandoned the review of inconsistent verdicts altogether in cases where the allegedly inconsistent verdicts included at least one acquittal. In all other respects, I concur with my colleagues.

NFP civil opinions today (6):

In the Matter of B.C.; J.C. and T.C. v. Indiana Dept. of Child Services (NFP)

Julie D. Marchand v. Review Board & Spencer County Ambulance Service Inc. (NFP) - "Because Marchand did not file a timely notice of appeal, she has forfeited her right to appeal. See Ind. Appellate Rule 9(A)(5) (“Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited . . . .”). We therefore dismiss this appeal."

In Re the Term. of Parent-Child Rel. of T.M., D.B., M.M., and F.M.; and W.M. v. Indiana Dept. of Child Services (NFP)

In Gary Vaught v. Unique The Specialty Group (NFP), a 5-page opinion, Judge Friedlander writes:

We need not delve into the specific facts of this case, as Vaught has waived all of the issues he presents on appeal. Initially, we observe that Vaught has failed to provide us with a complete record, as he has not included in his appendix any of the motions, memoranda, or designated evidence filed by Unique. * * *

While Vaught's appellate brief certainly has other flaws, the one we cannot overlook is his complete failure to provide any cogent argument in favor of reversal. We remind Vaught that the party appealing the grant of summary judgment has the burden of persuading us that the trial court's ruling was improper. See, e.g., Reel v. Clarian Health Partners, Inc., 873 N.E.2d 75 (Ind. Ct. App. 2007), trans. denied. Moreover, Ind. Appellate Rule 46(A)(8)(a) requires the argument section of an appellant's brief to be supported by cogent reasoning, with each contention “supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on”. Vaught does not support his slender, three-page argument with even one citation to the record or to legal authority. Under the circumstances, we find the issues presented by Vaught waived. * * *

We caution counsel that "[i]nadequate briefing is not, as any thoughtful lawyer knows, helpful to either a lawyer's client or to the Court.” Keeny v. State, 873 N.E.2d 187, 189-90 (Ind. Ct. App. 2007) (quoting Firth v. State, 325 N.E.2d 186, 189 (1975)). In the instant appeal, Vaught's counsel has filed a brief written in a manner sure to require the maximum expenditure of time both by the opposing party and this court. To be sure, it is evident that Unique's counsel spent considerable time and effort drafting a detailed, well-reasoned, twenty-three-page brief addressing the relatively complex issues that Vaught raised in only the most general of ways in his appeal from the trial court?s grant of summary judgment on three separate claims. We observe that Unique does not seek appellate attorney fees, pursuant to Ind. Appellate Rule 66(E), despite Vaught's procedural bad faith in this appeal. Had Unique done so, we would have been hard pressed to deny such a request.

Shelly M. Phipps v. Keevin J. Gray (NFP) - "Based on the foregoing, we conclude that the trial court did not err in granting a protective order against Phipps and in favor of Gray."

Michelle D. Timmons v. Review Board of the Indiana Department of Workforce Development, et al. (NFP)

NFP criminal opinions today (13):

Jason L. Keigley v. State of Indiana (NFP)

C.M.C. v. State of Indiana (NFP)

Jarvis Tolbert v. State of Indiana (NFP)

Gregory S. Steele v. State of Indiana (NFP)

Keith Martin-Branch v. State of Indiana (NFP)

Thomas Ainsworth v. State of Indiana (NFP)

Victor Glenn v. State of Indiana (NFP)

Otis Carter v. State of Indiana (NFP)

April Reed v. State of Indiana (NFP)

Kimberly Beward v. State of Indiana (NFP)