« Indiana Decisions - One from Supreme Court | Main | Environment - Adams Center Landfill back in the news »

Tuesday, November 23, 2004

Indiana Decisions - 7 today from the Court of Appeals

Accelerated Benefits Corp., et al. v. Marshall L. Peaslee (11/23/04 IndCtApp) [Securities; Contracts]
Ratliff, Senior Judge

* * * Based upon the foregoing discussion and authorities, we conclude that the trial court properly entered summary judgment in favor of Peaslee because the viatical settlements sold to Peaslee are securities as that term is defined in the Act, the transaction is not exempt from the registration requirements of the Act, and the Appellants acted as “brokers/dealers,” “agents,” and “investment advisers.” Affirmed.
MATHIAS, J., and CRONE, J., concur.
Michael Armstrong v. State of Indiana (11/23/04 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge
Michael C. Armstrong (“Armstrong”) was charged in the Gibson Superior Court with failure to stop after an accident resulting in death, a Class C felony. See footnote Armstrong moved to dismiss the charge. Following a hearing, the trial court denied the motion to dismiss. Thereafter, the trial court certified the matter for interlocutory appeal, and we accepted jurisdiction pursuant to Appellate Rule 14(B). Armstrong raises one issue: whether he was involved in an accident for purposes of Indiana Code section 9-26-1-1. Concluding that Armstrong was involved in an accident, but that our interpretation of the statute should not be applied retroactively to Armstrong, we reverse. * * *

Armstrong argues that the trial court improperly denied his motion to dismiss the charge against him because Indiana Code section 9-26-1-1 does not apply. Specifically, he argues that he was not “involved in an accident” for purposes of the statute because his vehicle did not strike Mobley. * * *

Yet Armstrong directs us to Honeycutt v. State, where a panel of this court, including this writer, determined that the scope of Indiana Code section 9-26-1-1 should be limited to “incidents involving a vehicle striking something that causes injury to someone, or a vehicle striking a person and causing injury.” * * *

In declining to follow Honeycutt, we acknowledge that our interpretation is so markedly different as to cause concerns about retroactive application to Armstrong. Constitutional provisions against ex post facto laws apply only to enactments by legislative bodies. [cites omitted] However, this court has recognized that the principle underlying the prohibition of ex post facto laws “may limit the retroactive application of judicial decisions interpreting statutes.” Id. The fundamental concept underlying the prohibition of retroactivity, whether by way of the due process clause or the prohibition against ex post facto laws, is that of fair notice to the defendant at the time he acts that his behavior is deemed criminal. Id. at 365-66. “If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, [the construction] must not be given retroactive effect.” Bouie v. City of Columbia, 378 U.S. 347, 354 (1964) (internal quotation marks omitted).

We note that transfer was not sought in Honeycutt. Thus, the law expressed prior to the conduct at issue here included no word from our supreme court indicating that, for purposes of the failure-to-stop statute, an “accident” requires that there be a “person struck.” However, we believe that our interpretation, while correct, is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Id. We therefore decline to apply our interpretation to Armstrong.

For all these reasons, when Mobley jumped from Armstrong’s moving vehicle and was injured as a result, Armstrong was involved in an accident for purposes of Indiana Code section 9-26-1-1, and the duties under that statute were triggered. Armstrong failed to immediately stop and remain at the scene as required by Indiana Code section 9-26-1-1(1) & (2). While the trial court properly denied Armstrong’s motion to dismiss under our interpretation of Indiana Code section 9-26-1-1, this interpretation should not be applied to Armstrong retroactively, and we reverse the trial court and grant Armstrong’s motion to dismiss under Honeycutt. Reversed.
BARNES, J., and CRONE, J., concur.

[See an earlier ILB writeup of this case from 9/14/04.]

Angela Michelle Shehan v. Douglas Eugene Hogan (11/23/04 IndCtApp) [Family Law]
Darden, Judge

In this appeal, the State questions the trial court's determination setting aside an Order/Notice to Withhold Income for Child Support, issued by the Bartholomew County Child Support Division to Douglas Eugene Hogan's bank, the Evansville Teachers FCU, in order to attach funds. We reverse. * * *

Here, the trial court was not presented with constitutional bases for setting aside the Notice/Order. Because the trial court offered a nonconstitutional basis for its ruling, it need not have raised, sua sponte, the constitutional issues. The trial court's judgment is reversed.
FRIEDLANDER, J., and MATHIAS, J., concur.

Marilyn Staton v. Frances N. Hawkins (11/23/04 IndCtApp) [Torts]
Vaidik
Marilyn J. Staton appeals the jury verdict in favor of Frances N. Hawkins. Because we find that Staton failed to meet her burden of proving that Hawkins failed to mitigate her damages, we find that the trial court did not abuse its discretion in removing the issue of failure to mitigate damages from the jury. Additionally, because the medical expert testified that some medical professionals would disagree with his advice to Hawkins to continue with life as normal so long as she could tolerate the pain, we cannot say the trial court abused its discretion by instructing the jury on the impact of attending medical personnel mistake on recoverable damages. Consequently, we affirm. * * *

Because Dr. Hastings’ views—by his own admission—diverge from those of some of his colleagues on what types of activities a person should participate post-injury, it would not be unreasonable for the jury to conclude that Dr. Hastings made a mistake by telling Hawkins to continue to live her life as she normally would, which included the racing of ATVs. Consequently, we cannot say that the trial court abused its discretion by instructing the jury regarding the impact of a mistake by attending medical personnel on the amount of damages recoverable by an injured plaintiff who relies on the mistaken advice. Affirmed.
RILEY, J., and CRONE, J., concur.

Anton Jarrell v. State of Indiana (11/23/04 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge
Anton Jarrell appeals his conviction of Possession of a Firearm By a Serious Violent Felon, a class B felony, and Carrying a Handgun Without a License,See footnote a class C felony. Jarrell presents the following restated issues for review:
1. Did the trial court err in admitting a handgun found under the seat of the vehicle Jarrell was driving?
2. Did conviction of the two firearm offenses violate Jarrell’s right against double jeopardy?
3. Was the evidence sufficient to support the conviction for possession of a handgun by a serious violent felon?
We affirm in part, reverse in part, and remand. * * *
DARDEN, J., and BAKER, J., concur.
Troy E. Howard v. State of Indiana (11/23/04 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge
* * * Unlike its Class C felony counterpart, Class D felony operating while an habitual traffic violator is not a progressively enhanced penalty; it is simply the proscribed punishment for driving after one’s license has been suspended. Accordingly, Howard’s habitual substance offender determination was the only enhancement of his sentence, and he was not the recipient of an improper double enhancement.

Conclusion. The trial court did not abuse its discretion, the trial court was not required to ask the jury whether they had questions before excusing each witness, and Howard did not receive an improper double enhancement. Affirmed.
DARDEN, J., and FRIEDLANDER, J., concur.

Fairland Recreational Club, Inc. v. Indianapolis Downs, LLC (11/23/04 IndCtApp) [Procedure; Attorney Fees]
BARNES, Judge
* * * The sole issue before us is whether the trial court erroneously denied Fairland’s request for attorney fees and costs. * * *

Indianapolis Downs neither attempted to object to the request for admission nor indicated that it had conducted a reasonable inquiry to obtain information or that doing so would be unreasonably burdensome. Also, in its response to Interrogatory No. 7, wherein it was asked to explain why it did not admit the matter contained in Request No. 7, Indianapolis Downs merely responded by referencing its answer to Request No. 7 and did not elaborate or otherwise clarify its response to the request. Indianapolis Downs could have, and should have, put forth a greater effort to answer the request with whatever clarification was necessary to answer accurately. We warn counsel in future litigation to be more careful in complying not only with the black letter of this rule, but also the spirit of it.

Conclusion. The trial court properly denied Fairland’s request to recoup fees and costs for litigation costs pursuant to Trial Rule 37(C). We affirm.
Affirmed.
NAJAM, J., and SULLIVAN, J., concur.

Posted by Marcia Oddi on November 23, 2004 01:56 PM
Posted to Indiana Decisions