American United Life Insurance Company v. Peter Douglas, et al. (5/18/04 IndCtApp) [Insurance]
Robb, Judge
American United Life Insurance Company (“AUL”) filed a Motion to Dismiss the proposed class action complaint against it. The trial court converted the motion into a Motion for Summary Judgment, and granted the motion in part and denied it in part. See footnote AUL sought certification of the trial court’s order for interlocutory appeal, which was granted, and this court accepted jurisdiction. AUL now appeals the unfavorable part of the trial court’s order. * * * The trial court did not err in denying AUL’s motion for summary judgment as to the plaintiffs’ claims for fraud, fraudulent concealment, and deceit, negligence per se, and the claims for monetary damages and equitable relief. We therefore affirm the judgment of the trial court and remand for further proceedings. Affirmed.Josephine E. Dolatowski v. Merrill Lynch, Pierce, Fenner & Smith, et al. (5/18/04 IndCtApp) [Civil Procedure]
SULLIVAN, J., and CRONE, J., concur.
Brian K. Ashba v. State of Indiana (5/18/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
This is a case of first impression in Indiana, the question being what is the proper procedure for posing questions from the jury to a witness? Though beginning January 1, 2003, our Rules of Trial Procedure required trial judges to instruct jurors that they may seek to pose questions to witnesses, the proper procedure for conducting such questioning has not yet been addressed.BP Amoco Corporation v. Robert Szymanski, Lake County Board of Commissioners and Lake County Auditor (5/18/04 IndCtApp) [Real Estate; Civil Procedure]Brian K. Ashba appeals his conviction for Operating While Intoxicated (OWI), a class D felony. Specifically, Ashba claims that the trial court committed reversible error when it did not allow jurors to ask questions at the close of each witness’s testimony. * * *
Jury Rule 20 does not specifically state the mechanical procedure to be used at trial in order to allow such jury questions. The prospect of jury questioning, however, is not new to Indiana. * * *
We see no reason why the procedure approved by this court under Rule 614(d) cannot be used, likewise, under Jury Rule 20. Indeed, it seems that the trial court here attempted to do as much “just from an eye contact trying to check and see whether or not, you know, there were any questions.” Tr. p. 158. Such a procedure is not erroneous. However, in its preliminary instructions, the trial court had told jurors that they could ask questions of the witnesses and would “be given an opportunity to do so prior to that witness being excused.” Tr. p. 20. The trial court’s instructions did not tell jurors that it would be scanning their faces to see if they had questions. Consequently, the jurors may not have known when to ask their questions.
Instead, a trial court should explain to jurors what the questioning procedure will entail. A trial court can inform the jurors that it will be glancing at the jury to see if any questions exist after a witness’s testimony. Another mode of inquiry could be for the trial court to instruct jurors to verbally or physically indicate if they have any questions. The trial court may also choose to tell jurors that it will specifically ask for questions after each witness. In sum, the trial court may use a variety of methods to obtain jury questions but must ensure that jurors know when they will be given an opportunity to ask such questions.Here, it is evident that the trial court was faced with a novel situation and was unsure about the procedures to follow. Ashba, however, cannot complain about the trial court’s actions because he expressly joined the State’s objections to the juror questions and agreed that they should not be given. Tr. p. 161, 177, 178. Hence, he may not now be heard to complain and has waived this claim. * * *
In light of the issues addressed, we conclude that Ashba is precluded from claiming that the trial court’s failure to pose the jurors’ questions was error because he invited such an error. Moreover, the State presented sufficient evidence to convict Ashba of OWI, and the trial court’s sentence was appropriate. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
Appellant-Plaintiff, B.P. Amoco Corporation (Amoco), appeals the trial court’s Orders in favor of Appellees-Defendants, Robert Szymanski (Szymanski) and the Lake County Board of Commissioners (Commissioners), with regard to Amoco’s Complaint to Set Aside Deed and to Quiet Title. * * * Amoco raises three issues in this consolidated appeal, one of which we find dispositive: whether the trial court erred in finding it lacked subject matter jurisdiction under Ind. Trial Rule 12(B)(1) to hear Amoco’s contest of a tax deed by way of an independent action pursuant to T.R. 60(B). * * *Wendell W. Clements v. State of Indiana (5/18/04 IndCtApp) [Criminal Law & Procedure]
[B]ased on the Statute and T.R. 60(B), we find that the issuance of a tax deed can be appealed under I.C. § 6-1.1-25-406(h) by either an independent action or a T.R. 60(B) motion in the same trial court that issued the original tax deed. Since Amoco filed its appeal by way of an independent action pursuant to T.R. 60(B) in the trial court that issued the original tax deed to the Commissioners, we hold that the trial court erred in finding that it lacked subject matter jurisdiction under T.R. 12(B)(1). Accordingly, we reverse and remand this case to the trial court for further proceedings on the merits consistent with this opinion. * * *
BAKER, J., and DARDEN, J., concur.
Today we are called to decide whether a man may be convicted for assisting a criminal because he “didn’t follow [a police officer’s] commands to get his wife and leave.” We determine that he may not.Posted by Marcia Oddi at May 18, 2004 02:19 PMAppellant-defendant Wendell W. Clements appeals his conviction for Assisting a Criminal, a class A misdemeanor. Clements presents three issues for review, but because we agree with Clements that the State presented insufficient evidence to convict him of the crime, we need not address the remaining issues. * * *
In Overton [v. State], we found that the deliberate disregard and flight from a police officer could not constitute sufficient a distraction to end in a conviction for assisting a criminal. Here, likewise, we cannot conclude that remaining seated in the Explorer and speaking to Trooper Poole constituted the requisite “positive, affirmative act” required to convict Clements of this offense. See Dennis, 230 Ind. at 217, 102 N.E.2d at 653-54. Thus, Clements’s conviction may not stand. The judgment of the trial court is reversed.
FRIEDLANDER, J., and BAILEY, J., concur.