July 20, 2004

Indiana Decisions - Six Court of Appeals and One Tax Court Decision Posted Today

John Gall v. State of Indiana (7/20/04 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge

John Gall (“Gall”) was convicted of dangerous possession of a firearm, as a Class A misdemeanor, two counts of criminal recklessness, as Class D felonies, and attempted murder, a Class A felony, by a jury in the Madison Superior Court, and sentenced to thirty years executed. Gall appeals, raising the following combined and restated issues: Whether Gall was improperly charged under Indiana Code section 35-47-10-5; Whether sufficient evidence was presented to support Gall’s convictions of dangerous possession of a firearm and attempted murder; Whether the trial court improperly excluded testimony from H.S. as to Gall’s intent; and, Whether the trial court abused its discretion in sentencing Gall.

Concluding that Gall was properly charged, that sufficient evidence supported his convictions, that the trial court properly excluded H.S.’s testimony, and that the trial court did not abuse its discretion when it sentenced Gall, we affirm. * * *

BARNES, J., and CRONE, J., concur.

James Thomas Myers v. State of Indiana (7/20/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Mathias, Judge
James Myers’ (“Myers”) Motion to Suppress was denied in Elkhart Circuit Court. Myers appeals, presenting the following restated issue for review: Whether the search of Myers’ vehicle was constitutionally permissible. Concluding the search of Myers’ vehicle was constitutionally permissible, we affirm. * * *

The search of Myers’ vehicle was constitutionally permissible under the Fourth Amendment and Article One, Section Eleven of the Indiana Constitution. Affirmed.
BARNES, J., and CRONE, J. concur.

Steven Fields v. State of Indiana (7/20/04 IndCtApp) [Criminal Law & Procedure]
Robb, Judge
Steven Fields seeks rehearing of our opinion issued in Fields v. State, 807 N.E.2d. 106 (Ind. Ct. App. 2004). Although we affirm our original opinion in all respects, we write on rehearing to clarify our holding regarding the twenty-minute deprivation period required before a chemical breath test can be administered. * * *

BAKER, J. concurs.
RILEY, J. would deny the petition.

State of Indiana v. Alicia A. Neanover (7/20/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Vaidik, Judge
Case Summary. The State appeals the trial court’s grant of a Motion to Suppress Evidence. Because we find that the officers’ warrantless search and seizure of garbage from an open landing on the top floor of an apartment building violated both the federal and state constitutions, the trial court’s ruling was not contrary to law. We therefore affirm. * * *

The circumstances of this case—garbage seized without a warrant from the open landing of an apartment building, where it had not been abandoned for collection and was not readily accessible to the public—present a question of first impression in Indiana. The State contends that the warrantless search and seizure of Neanover’s garbage from the open landing of her apartment building was constitutionally permissible under both the Fourth Amendment to the United States Constitution and Article I, § 11 of the Indiana Constitution.

Sandra Wilson v. Royal Motor Sales, Inc. [Contracts]
May, Judge
[Issue] [W]hether the trial court erred when it determined as a matter of law that Royal had disclaimed all implied warranties. We affirm.

The facts most favorable to Wilson, the non-moving party, follow. On May 26, 2001, Wilson purchased a 2000 Daewoo Nubria from Royal. The window sticker on the car did not indicate the car was being sold “As Is”, rather it indicated it was being sold with a factory warranty. The purchase agreement contained a warranty disclaimer at the bottom of the page; however, Royal did not have Wilson sign the space indicating the car was being “SOLD WITH NO WARRANTY.” Wilson’s signature on the purchase agreement acknowledged that she had read the back of the purchase agreement, which included the following language: “THIS VEHICLE IS SOLD “AS IS – NOT EXPRESSLY WARRANTED OR GUARANTEED” AND THE SELLER HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.” * * *

Wilson claims the window sticker contradicts the language in the purchase agreement because Royal had not marked the box on the window sticker indicating the Nubria was being sold “As Is.” The flaw in Wilson’s reasoning is the purchase agreement also did not indicate the Nubria was being sold without any warranty. Rather, the purchase agreement indicated that if the car was being sold with a “factory warranty,” that warranty was made by the manufacturer only and did not bind the dealer unless the parties signed an additional “dealer warranty or service contract.” If no additional contract was signed, then the dealer disclaimed all express or implied warranties, including the implied warranty of merchantability. The language on the window sticker, while perhaps ineffective as a disclaimer of implied warranties if considered alone, did not contradict the language in the purchase agreement.

Accordingly, we decline Wilson’s invitation to reweigh the evidence. See, e.g., DeVoe Chevrolet-Cadillac, Inc. v. Cartwright, 526 N.E.2d 1237, 1240 (Ind. Ct. App. 1988) (declining to override dealer’s disclaimer of implied warranties based on alleged express warranty when record contained no evidence dealer made any express warranty). The trial court did not err when it granted Royal’s motion for summary judgment. Affirmed.
SULLIVAN, J., and VAIDIK, J., concur.

BP Products North America, Inc. v. Board of Commissioners of Lake County (7/20/04 IndCtApp) [Procedure]
Baker, Judge
Appellant-plaintiff BP Products North America, Inc. (BP) appeals the trial court’s entry of summary judgment in favor of appellee-defendant the Board of Commissioners of Lake County et al., (Lake County) regarding the issuance of a writ of production compelling BP to produce a number of the corporation’s books and records that Lake County had requested for the purpose of conducting an audit. Similarly, BP contends that the trial court erred in concluding that Lake County had the power and jurisdiction to conduct audits of BP’s business property in light of the applicable statutes of limitation. Concluding that the trial court acted within its discretion in issuing the writ of production to BP, and further finding that BP’s request for declaratory relief was properly denied, we affirm the entry of summary judgment for Lake County. As a result, we also remand this cause to the trial court with instructions that it dissolve the stay that had been issued pending the resolution of this appeal with regard to the writ of production. * * *

CONCLUSION. In light of our discussion above, we conclude that the trial court did not abuse its discretion in issuing the writ of production, and it was appropriate to deny BP’s request for declaratory relief that sought to block Lake County from inspecting the records that were subject to the writ. Thus, we affirm the judgment of the trial court and remand this cause with instructions for the trial court to dissolve the stay that this court had granting pending the resolution of this appeal. Affirmed and remanded.
FRIEDLANDER, J., and BARNES, J., concur.

Terry L. & Kimberly Clarkson v. Department of Local Government Finance (719/04 IndTaxCt) [Valuation of Property under Land Order]

Posted by Marcia Oddi at July 20, 2004 02:01 PM