The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

« Courts - Impact of the crime lab testimony decision [Updated] | Main | Ind. Law - Former Daviess County Prosecutor Brayton Smoot missing »

Wednesday, July 15, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Jill Baird v. ASA Collections , a 17-page opinion, Chief Judge Baker writes:

Appellant-defendant Jill Baird appeals the trial court’s judgment in favor of appellee-plaintiff ASA Collections (ASA) on its claim against her for delinquent dues and assessments on lots that she had purchased at a tax sale. Specifically, Baird argues that the judgment must be set aside because the trial court’s findings of fact and conclusions of law did not address the Indiana Nonprofit Corporation Act’s (Nonprofit Corporation Act) provisions regarding a homeowner association member’s personal liability for the nonpayment of dues and assessments. Baird also claims that the evidence did not support the judgment—including the award for attorney’s fees and costs—and that the trial court “was ambiguous in its ruling as to the application of the Fair Debt Collection Practices Act (FDCPA)” with regard to ASA’s claim and her counterclaims. Moreover, Baird contends that the trial court lacked jurisdiction over the case because Decatur County was the proper venue under the FDCPA.2 Finally, Baird claims that she is entitled to damages, attorney’s fees, and costs on her counterclaim that she advanced against ASA in accordance with the provisions of the FDCPA.

We conclude that Baird has waived her claim with respect to the application of the Nonprofit Corporation Act and find that ASA’s action against her was not subject to the FDCPA. Thus, venue in Dearborn County was proper, and Baird is not entitled to recover on her counterclaims. However, we also find that the trial court’s judgment award entered against Baird in the amount of $4,795.63 is erroneous. Therefore, we affirm in part, reverse in part, and remand with instructions that the trial court recalculate the amount of dues, assessments, and attorney’s fees and costs to which ASA may be entitled.

In Chawknee Caruthers v. State of Indiana , a 22-page, 2-1 opinion, Judge Vaidik writes:

Chawknee Caruthers was convicted of murder and found to be a habitual offender. In this direct appeal, he contends that his trial counsel was ineffective. He also contends that the trial court abused its discretion by failing to sua sponte conduct an interrogation of the jury after defense counsel brought to the court‘s attention during trial that some of the jurors felt intimidated by actions attributed to the defendant, the defendant‘s family, and the victim‘s family. He also contends that the evidence is insufficient to support his conviction because the testimony of two witnesses is incredibly dubious. We reverse Caruthers‘ conviction because we conclude that the trial court abused its discretion by failing to investigate the content, extent, and possible prejudicial impact of the threats against the jury. However, because we also conclude that the incredible dubiosity rule does not apply and there is sufficient evidence to support his conviction, the State is free to retry him. * * *

NAJAM, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [that begins, at p. 19] I disagree with the Majority‘s conclusion that this conviction must be reversed because the trial court failed sua sponte to investigate the claim of juror intimidation, and therefore respectfully dissent.

NFP civil opinions today (3):

Steven Ivankovich v. Pami Grand Lake, LLC (NFP)

Baker & Taylor, Inc. v. Peggy Joanna Sterk (NFP)

In re the Marriage of: R.H. and M.J. (NFP)

NFP criminal opinions today (8):

Adron Robinson v. State of Indiana (NFP)

Timothy B. Brown v. State of Indiana (NFP)

Richard Atchison v. State of Indiana (NFP)

G.G. v. State of Indiana (NFP)

Iesha Calvert v. State of Indiana (NFP)

James Hamilton v. State of Indiana (NFP)

Roger Jameson v. State of Indiana (NFP)