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Tuesday, January 18, 2005

Ind. Decisions - Court of Appeals posts three today

Arturo Aguilar v. State of Indiana (1/18/05 IndCtApp) [Criminal Law & Procedure]
Crone, Judge

Arturo Aguilar petitions for rehearing in Aguilar v. State, 811 N.E.2d 476 (Ind. Ct. App. 2004), challenging the enhancement of his sentence under Blakely v. Washington, U.S. , 124 S. Ct. 2531 (2004). We grant Aguilar s petition and remand for resentencing.

Issue. We restate the issue Aguilar presents as whether the enhancement of his sentence violated his Sixth Amendment right to have a jury determine the facts upon which the enhancement was based. * * *

We agree and therefore hold that the enhancement of Aguilar’s sentence violated his Sixth Amendment right to trial by jury. * * * Petition for rehearing granted; remanded for resentencing.

BARNES, J., concurs with opinion. [Noting: "This remand for sentencing does not open all previous aggravated sentences to collateral attack under Blakely."]
BAKER, J., dissents with opinion. ["I respectfully dissent from the majority’s decision to grant rehearing in this case, inasmuch as Aguilar has raised the Blakely issue for the first time on rehearing.* * *]

The City of South Bend, Indiana, et al v. Century Indemnity Co., et al (1/18/05 IndCtApp) [Insurance; Environment]
Robb, Judge

The City of South Bend, Indiana and the South Bend Redevelopment Commission (collectively, the “City”) appeal from the trial court’s orders granting motions by Certain Underwriters at Lloyd’s, London, and Certain London Market Insurance Companies (“London”), Century Indemnity Company, and Zurich American Insurance Company (collectively, the “Insurers”) to dismiss the City’s amended complaint and denying the City’s motion for appointment of receiver. We affirm in part and reverse and remand in part.

Issues. The City raises two issues for our review, which we restate as follows: Whether the trial court properly dismissed its complaint against the Insurers upon finding that the suit was barred by the “direct action” rule; and Whether the trial court properly denied its request for appointment of a receiver to act on behalf of a dissolved company. * * *

Following Studebaker’s divestiture of its automotive facilities in the City, the facilities were used for a variety of other operations. In the early 1990s, the City conducted an environmental evaluation of the former Studebaker facilities and determined that there were significant environmental releases impacting the soil and groundwater at those facilities and surrounding areas. The City is now the owner of significant portions of the former Studebaker facilities.

In March of 2003, the City filed a complaint for damages and declaratory relief against the Insurers and McGraw-Edison, the company alleged to be the successor to Studebaker. With respect to the insurers, the City sought a declaration that the Insurers “are obligated to provide insurance coverage, subject to their respective policy limits, for the environmental liabilities [the City] asserts against Studebaker.” Thereafter, the Insurers filed motions to dismiss the complaint for failure to state a claim upon which relief may be granted. The City filed a motion for appointment of receiver to “represent Studebaker’s interests, particularly with respect to the pursuit of coverage under the company’s insurance policies for the claims at issue in this matter.” The Insurers’ motions to dismiss were granted, with prejudice, and the City’s motion for appointment of a receiver was denied. This appeal ensued. * * *

Conclusion. The City’s declaratory judgment action is not a direct action against the Insurers and the trial court erred in dismissing the action. The trial court did not err, however, in denying the City’s motion to appoint a receiver. Accordingly, the trial court’s order regarding the receiver is affirmed, the trial court’s orders granting the Insurers’ motions to dismiss are reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Affirmed in part; reversed and remanded in part.
KIRSCH, C.J., and BAKER, J., concur.

Carson Lutz v. The City of Indianapolis (1/18/05 IndCtApp) [Municipal Law; Constitutional Law]
Robb, Judge

After a bench trial, the trial court found that Carson Lutz violated the City of Indianapolis’ (“City”) unlawful noise ordinance (“Ordinance”). Lutz now appeals. We reverse.

Issue. Lutz raises three issues for our review, but we find one issue to be dispositive: whether the Ordinance is unconstitutionally vague. * * *

For the reasons discussed above, we hold that Section (a) and portions of Subsection (a)(2) of the Ordinance do not include a sufficiently ascertainable standard of conduct and are therefore unconstitutionally vague. The following provision of Subsection (a)(2), however, contains a sufficiently ascertainable standard of conduct and can be severed from the remainder of the Ordinance: “The operation of any such set, phonograph, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such a manner as to be plainly audible at a distance of fifty (50) feet from the building, structure or vehicle in which it is located shall be prima facie evidence of a violation of this subsection.” Nevertheless, because the City did not present any evidence that Lutz played music in his vehicle between the hours of 11:00 p.m. and 7:00 a.m. that was plainly audible at a distance of fifty feet from his vehicle, the City did not present sufficient evidence that Lutz violated the Ordinance.
BAKER, J., and CRONE, J., concur.

Posted by Marcia Oddi on January 18, 2005 07:01 PM
Posted to Ind. App.Ct. Decisions