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Friday, June 11, 2004

Indiana Decisions - Five Posted by Court of Appeals Today

Angel Pagan v. State of Indiana (6/11/04 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge

The State presented sufficient evidence Pagan robbed a “person” as required to support his conviction for robbery. Although it was improper for jurors to make cell phone calls during their deliberations, especially without prior court knowledge or approval, we see no indication that this conduct prejudiced Pagan. Additionally, Pagan received effective assistance of trial counsel. Therefore, we affirm Pagan’s conviction. However, we remand with instructions to modify Pagan’s sentence to a total term of fifteen years, with four suspended. Affirmed and remanded with instructions.
CRONE, J., and BAKER, J., concur.
Nancy Naggatz v. David Beckwith (6/11/04 IndCtApp) [Family Law]
Baker, Judge
Appellant-respondent Nancy Naggatz appeals the trial court’s order modifying the child support payments of appellee-petitioner David Beckwith to provide support for their nineteen-year-old daughter, M.B. Specifically, Naggatz contends that the trial court improperly “modified the parties’ stipulation that [Beckwith] pay” all of M.B.’s college expenses. Moreover, Naggatz claims that the trial court erred when it adopted the figure of $74,000 per year as Beckwith’s income. Additionally, Naggatz claims that the trial court miscalculated the amount of child support in arrearage owed to her by Beckwith. Finally, Naggatz contends that the trial court erred in providing that Beckwith pay all of M.B.’s uninsured medical expenses. Concluding that no error occurred, we affirm. * * *
FRIEDLANDER, J., concurs.
BAILEY, J., dissents with opinion:

I respectfully dissent from the affirmation of a “judgment” based on a “stipulation” that does not exist in the record. * * * When it became apparent to the trial court that the parties had not, in fact, reached a stipulation as to the terms of a modified child support order, the trial court could have heard the testimony of witnesses under oath, pursuant to Indiana Evid. Rule 603. Alternatively, the trial court could have considered child support worksheets signed under penalty of perjury. It did not do so. Consequently, there is a total absence of sworn testimony or verified exhibits to support a judgment and the hearing was in essence a settlement conference. Thus, in my opinion, the trial court abused its discretion by ordering modification of support. Therefore, I dissent from the majority opinion and I would reverse the judgment of the trial court.

Karl Linden, et al. v. Health Care 2000, Inc., et al. (6/11/04 IndCtApp) [Insurance]

Editor's Note - I can't claim to completely understand this case upon brief review. I was struck, however, by Judge Sullivan's concurring opinion, which I quote in full:

During the some four years that Health Care 2000 operated without authority and collected premiums from unsuspecting and innocent policy purchasers, DOI [Indiana Department of Insurance] had full access to the nature of the operation and the lack of financial stability of the HMO. It certainly had the investigative tools and authority to acquire the very information which in 1997 led the Marion Circuit Court to liquidate Health Care 2000. The conduct, or lack thereof, by DOI is indefensible. It is nevertheless insulated against civil liability by I.C. § 34-13-3-3(8), and for this reason, I concur in the reversal of the trial court’s denial of Appellees’ motion for summary judgment.
Millenium Club, Inc. v. Pamela Avila, et al. (6/11/04 IndCtApp) [Tort]
Sharpnack, Judge
Millennium Club, Inc. (“Club”) appeals the small claims court’s grant of a motion to dismiss filed by Pamela Avila and numerous other defendants (collectively, the “Minors”). The Club raises one issue, which we restate as whether the small claims court erred by dismissing the Club’s fraud claim against the Minors where the Minors gained entry to the Club by presenting fraudulent identifications and signing false affidavits as to their ages. We reverse and remand. * * *

The sole issue is whether the small claims court erred by dismissing the Club’s claim against the Minors for fraud where the Minors gained entry to the Club by presenting fraudulent identifications and signing false affidavits as to their ages. This is an issue of first impression in Indiana. The Alcoholic Beverages Act (the “Act”), Ind. Code § 7.1-5-1-1 to § 7.1-5-11-16, is at issue here. The Act makes it a class C infraction for a minor to “make a false statement of the minor’s age or to present or offer false or fraudulent evidence of majority or identity to a permittee for the purpose of ordering, purchasing, attempting to purchase, or otherwise procuring or attempting to procure an alcoholic beverage.” Ind. Code § 7.1-5-7-1(a) (1998). The Act also makes it a class C infraction for a minor to misrepresent his age on a written statement provided to a permittee. Ind. Code § 7.1-5-7-4 (1998). The statute sets out a sample form for the written statement, which provides that the minor understands that the misrepresentation of age to induce the sale, service, or delivery of alcoholic beverages is cause for arrest and prosecution. I.C. § 7.1-5-7-5.1(b).

As for the Club, Ind. Code § 7.1-5-7-8(a) (1998) provides that “[i]t is a Class C misdemeanor for a person to recklessly sell, barter, exchange, provide, or furnish an alcoholic beverage to a minor.” However, Ind. Code § 7.1-5-7-5.1(a) (1998) provides a defense to permittees, such as the Club * * *

Our supreme court has held that a violation of the Act may give rise to a civil action. * * *

We recognize the public policy of placing the burden of enforcing the underage drinking laws upon the taverns because the tavern is in the best position to prevent the violation and the public policy of barring the Club from shifting the liability for its own illegal actions to the Minors. However, we also recognize the competing public policy that the Minors should be held accountable for their actions. The Minors here used fraudulent identifications and written statements regarding their age to induce and encourage the Club to allow them access to the tavern. With the enactment of the defense for permittees, our legislature has recognized that, despite best efforts to prevent minors from entering a tavern, advances in technology have allowed the production of realistic false identifications. If the evidence presented to the small claims court demonstrates that the Club allowed the Minors access in reasonable reliance upon the fraudulent identifications and written statements and the Club did not participate in an illegal transaction, then public policy should not prevent the ultimate cost from being borne by the Minors who set this situation into motion. Thus, we conclude that the small claims court erred by dismissing the Club’s action on public policy grounds.

We conclude that the Club’s complaint states a claim for fraud against the Minors and is sufficient to survive an Ind. Trial Rule 12(B)(6) challenge. This matter may become appropriate for summary judgment. However, at this stage of the proceedings, looking at the complaint in the light most favorable to the Club with every inference drawn in its favor, we must conclude that the allegations in the Club’s complaint state a claim upon which relief may be granted and we cannot say that the Club’s action is barred by public policy. Consequently, the small claims court erred by granting the Minors’ motion to dismiss. * * *

For the foregoing reasons, we reverse the small claims court’s grant of the Minors’ motion to dismiss and remand for proceedings consistent with this opinion. Reversed and remanded.
DARDEN, J. and ROBB, J. concur

[Note] This is the South Bend Boat Club case written up here in a May 2, 2004 Indiana Law Blog entry.

Matter of T.H. v. State of Indiana (6/11/04 IndCtApp) [Juvenile Law & Procedure]
Hoffman, Senior Judge

The trial court’s adjudication of her T.H. as a delinquent child is affirmed.

Posted by Marcia Oddi on June 11, 2004 02:08 PM
Posted to Indiana Decisions