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Thursday, September 10, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 3 NFP)

For publication opinions today (4):

In Wayne Brown v. State of Indiana , a 33-page opinion, Judge Friedlander writes:

Following a jury trial, Wayne Brown was convicted of three counts of Child Exploitation as class C felonies and five counts of Possession of Child Pornography as class D felonies. Brown was subsequently sentenced to a total aggregate term of fourteen years incarceration. On appeal, Brown presents four issues for our review: 1. Did the trial court abuse its discretion in permitting the State to amend the charging information? 2. Do Brown's convictions violate principles of double jeopardy? 3. Did the prosecutor engage in misconduct? 4. Did the trial court abuse its discretion in sentencing Brown? We affirm.
In Timothy A. Stevens v. State of Indiana , a 16-page opinion, Judge Friedlander writes:
Timothy Stevens appeals his convictions for three counts of Aiding in Theft, as class D felonies, and two counts of Bribery, as class C felonies. Stevens presents two issues for our review, which we consolidate and restate as: 1. Is the evidence sufficient to sustain Stevens‟s convictions for aiding in theft and bribery? 2. Is there a fatal variance between the charging information and the evidence presented at trial with respect to Stevens's convictions for aiding in theft? We affirm.
In Mike A. Abdalla, et al v. Raed I. Qadorh-Zidan, et al, a 16-page opinion, Judge Riley concludes:
Based on the foregoing, we find that (1) the companies owed the former members of the LLCs and former shareholders of the corporation fiduciary duties regarding the preparation of tax documents covering the period before the separation but drawn up after the separation; (2) the former members of LLCs and former shareholders of the corporation have a right to inspect company books and records to evaluate tax documents drawn up after the separation but covering actions before the members and shareholders separated from the companies; and (3) the trial court properly denied the Abdallas' motion for summary judgment on their assertion of willful misconduct and gross negligence as they failed to designate evidence. Affirmed.
In David Fitzpatrick v. Kenneth J. Allen & Associates, a 25-page opinion, Judge Vaidik writes:
John Hill was seriously injured during the course of a hospitalization. Several law suits arose out of this injury, including a products liability suit against pharmaceutical companies and a medical malpractice suit against Hill's physicians. Attorneys Kenneth J. Allen, David J. Fitzpatrick, and Mitchell Iseberg entered into a fee-sharing contract under which Fitzpatrick agreed to handle the products liability suit and Allen would handle the medical malpractice suit. Allen, Fitzpatrick, and Iseberg, with the approval of Hill and his wife, agreed that Allen would receive 50% of any attorney fees generated by the two suits and Fitzpatrick and Iseberg would split the other half. The clients later discharged Allen from the products liability suit shortly before it settled for a large sum of money, generating over two million dollars in attorney fees, which Fitzpatrick distributed to himself and Iseberg and did not share with Allen. Allen subsequently withdrew from the medical malpractice suit. During protracted litigation over the fees, the trial court repeatedly ordered Fitzpatrick to disclose the settlement amount. Ultimately, Allen filed a motion for default judgment against Fitzpatrick, which the trial court granted due to Fitzpatrick's disobedience of its discovery orders. The trial court later entered judgment in Allen's favor in the amount of $1,350,000, reflecting what the court believed to be 50% of the attorney fees. Fitzpatrick filed a combined motion to correct error and motion for relief from judgment, which the trial court denied. Fitzpatrick now appeals, raising a number of issues, which we restate as: (1) whether the trial court erred by entering default judgment against him, (2) whether the trial court erred by awarding contractual, rather than quantum meruit, damages, and (3) whether the trial court incorrectly calculated the damages to which Allen is entitled from Fitzpatrick under the contract. We conclude that the trial court did not abuse its discretion by entering default judgment against Fitzpatrick due to his contumacious disregard for the trial court's discovery orders and that neither case law nor the Indiana Rules of Professional Conduct entitle Allen only to quantum meruit damages rather than contractual damages. We further conclude that, while the trial court did not err by calculating damages without a damages hearing, the trial court abused its discretion by failing to subtract from the attorney fees a sum that was paid to Lewis. We affirm in part and reverse in part.
NFP civil opinions today (1):

SFS, LLC, et al v. Rita L. Denney (NFP) - "Based on the foregoing, we conclude that the trial court erred when it ordered SFS to return the interest it had received when Delaware County redeemed the tax lien which SFS had purchased.
Reversed and remanded with instructions."

NFP criminal opinions today (2):

Tony A. Warren v. State of Indiana (NFP)

Phuoc V. Tran v. State of Indiana (NFP)

Posted by Marcia Oddi on September 10, 2009 01:16 PM
Posted to Ind. App.Ct. Decisions