August 20, 2004

Indiana Decisions - Four today from the Court of Appeals

Truck City of Gary v. Schneider National Leasing, et al. (8/20/04 IndCtApp) [Agency; Contract; Equity]
Bailey, Judge

* * * Truck City raises two issues, which we expand and restate as: [1] Whether the trial court erred by considering parol or extrinsic evidence in making its determination that neither Schneider nor Salem was responsible for the costs associated with the repairs at issue because a representative of Truck City made an oral promise to Salem that such repairs were covered by warranty; [2] Whether the trial court’s judgment in favor of Salem and Schneider is contrary to law because Salem—acting as Schneider’s agent—consented to the repair work at issue and, therefore, both are responsible for the cost of such repairs; and [3] Whether the trial court’s judgment in favor of Schneider is contrary to law because Schneider is financially responsible for the repairs at issue under the equitable theory of quantum meruit. * * *

After conducting a bench trial, the small claims court determined that: (1) Salem was Schneider’s agent because, by advertising its name on the Tractor, Schneider gave third parties reason to believe that Salem had apparent authority to bind Schneider; and (2) Salem and Schneider are not liable for the gasket repairs because Truck City promised Salem that such repair work would be covered by warranty. Accordingly, the trial court entered judgment in favor of Salem and Schneider. It is from this judgment that Truck City now appeals. * * * [Interesting, fact-based, analysis follows]

For the foregoing reasons, we affirm the trial court’s judgment in favor of Salem and Schneider. Affirmed.
SHARPNACK, J., and MAY, J., concur.

Jason Carson v. State of Indiana (8/20/04 IndCtApp) [Criminal Law & Procedure]
Opinion on Rehearing
Vaidik, Judge
* * * Carson asks this Court to find—pursuant to the recently-decided Blakely v. Washington, 124 S. Ct. 2531 (2004)—that his sentence violates his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury. [See footnote] Given that Carson did not challenge his sentence on direct appeal, he has technically waived review of this issue, and the appropriate procedure would have been to challenge his sentence through post-conviction relief. See Ind. Post-Conviction Rule 1(a)(1). Waiver notwithstanding, after considering the merits of Carson’s challenge, we find that Blakely has no effect on his enhanced sentence. * * *

Indiana courts have not yet considered what effect, if any, the Blakely opinion may have on Indiana’s sentencing scheme.

Carson urges us to find that his enhanced sentence is improper because the trial court “made factual findings and entered an enhanced sentence upon those findings” without requiring that a jury make those findings beyond a reasonable doubt. Those factual findings—or aggravating circumstances—consisted of the following: a history of criminal and delinquent activity, which includes multiple convictions; a need for corrective or rehabilitative treatment that can best be provided by incarceration in a penal institution or in a work release facility; and the strong likelihood that, based upon his criminal history, he will commit battery again. As to the first aggravator, the multiple convictions that the extensive criminal history comprises have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely. See Blakely, 124 S. Ct. at 2536. The other two aggravating circumstances are simply derivative of that extensive history of convictions and thus would seem also not to implicate the Blakely analysis. In any event, a single aggravating circumstance is adequate to justify a sentence enhancement. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). Therefore, even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, this finding would have no effect on Carson’s sentence. Petition for rehearing denied.
SULLIVAN, J., and MAY, J., concur.

[Ftnote] In Blakely, Justice O’Connor writes, “[A]ll criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack.” Blakely, 124 S. Ct. at 2549 (O’Connor, J., dissenting). Carson’s sentence was imposed in September 2003. Nonetheless, given today’s decision, we need not reach the question of Blakely’s retroactivity.

Auto Owners Insurance Company v. Jon Harvey, et al. (8/20/04 IndCtApp) [Insurance]
Baker, Judge
[Auto-Owners] appeals the denial of its motion for summary judgment in its case against appellees-plaintiffs Jon Harvey and Misty Johnson, the co-personal representatives for the estate of Brandy Nicole Harvey (Brandy). Though Auto-Owners raises five issues for appeal, we need only address one: was there an “occurrence” upon which to predicate liability coverage under the insurance policy? We hold that there was not and, thus, reverse the trial court and remand with instructions to enter summary judgment in favor of Auto-Owners. * * *

On May 5, 2003, Auto-Owners filed a motion for summary judgment wherein it argued that no genuine issue of material fact remained for trial and that it was entitled to judgment as a matter of law. Specifically, Auto-Owners contended that because Gearheart intentionally pushed—as demonstrated by his conviction—Brandy into the water, there was no coverage under the insurance policy because there was not an “occurrence,” defined by the policy as “an accident.” Auto-Owners noted that public policy was served by such a requirement in the insurance policy to avoid a situation wherein insurance coverage would be provided to an intentional tortfeasor. * * *

Public policy. We would be remiss if we failed to mention the ramifications of Harvey and Johnson’s arguments. A consequence of Harvey and Johnson’s claims is the abandonment of the rationale that “a person should not be permitted to insure against harms he may intentionally and unlawfully cause others, and thereby acquire a license to engage in such activity.” Home Ins. Co. v. Neilsen, 165 Ind. App. 455, 451, 332 N.E.2d 240, 244 (1975). Gearheart’s case is particularly applicable inasmuch as he admitted that he intentionally battered Brandy.

Conclusion. In light of the issues discussed, we conclude that there is no genuine issue of material fact as to Gearheart’s mental state inasmuch as Gearheart pleaded guilty to involuntary manslaughter, a predicate offense of which was battery. Because, then, there was no question that Gearheart committed the act that led to Brandy’s death knowingly or intentionally, summary judgment should have been entered in favor of Auto-Owners. The judgment of the trial court is reversed, and this cause is remanded with instructions that summary judgment be entered in favor of Auto-Owners.
FRIEDLANDER, J., and BAILEY, J., concur.

Halifax Financial Group v. Margaret Nance, et al. (8/20/04 IndCtApp) [Real Property; Tax]
Bailey, Judge
[Halifax Financial Group] appeals an order of the trial court denying its petition for a tax deed to real property purchased at a tax sale and ordering the Floyd County Auditor to permit Appellee-Respondent Regional Bank to redeem the tract outside the one-year redemption period of IC 6-1.1-25-4. We reverse and direct judgment for the tax purchaser.

Issue. Halifax presents a single issue for review: whether the trial court determined the tax sale to be invalid because of its misinterpretation of the notice requirements of IC 6-1.1-25-4.6. * * *

Previously, the statute provided that an interested person could redeem the tract at any time before the date when the auditor was required to issue a tax deed; thus a redemption could occur after the one year redemption period expired if the trial court had not yet entered the order for a tax deed. See Wildwood Acres Trust v. First Citizens State Bank, 671 N.E.2d 1199 (Ind. Ct. App. 1996). Consistent with that version of IC 6-1.1-25-1, Regional Bank contended that, because no tax deed had issued before the second notice, it was still within the redemption period and should be advised accordingly.
However, effective July 1, 2001, IC 6-1.1-25-1 was amended to provide for a definitive time for redemption, dependent upon the expiration of the statutory period specified in section 4, rather than upon the time of a court order for a tax deed. IC 6-1.1-25-4(a) provides in relevant part: “The period for redemption of real property sold under IC 6-1.1-24 is one (1) year after the date of sale.” Contemporaneously, the legislature amended IC 6-1.1-25-2(b) to delete an escalated rate of payment applicable to tracts redeemed after a one-year redemption period. The redemption statutes, construed together, clearly contemplate a fixed one-year redemption period. See footnote We find no ambiguity.

Accordingly, advice in the second notice of a continuing right to redemption would have been contrary to law. As such, the trial court erroneously concluded that the tax sale was invalid because of the omitted advice. Halifax complied with the statutory requirements and is entitled to a tax deed. We reverse the trial court’s order and direct judgment for the tax purchaser.
SHARPNACK, J., and MAY, J., concur.

Posted by Marcia Oddi at August 20, 2004 02:04 PM