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Friday, January 28, 2005

Ind. Decisions - Court of Appeals issues three today

John Johnston, et al v. First Federal Savings Bank (1/28/05 IndCtApp) [Attorney's Lien]
Vaidik, Judge

An attorney who represented a client in a dissolution action sought to have the attorney’s lien on a house purchased by the client while the proceedings were pending take priority over the judgment lien of the client’s spouse from the same action. Because the house was not recovered by the attorney for the client, we find that the attorney was not entitled to an attorney’s lien on the property. * * *

The attorney’s lien statute has not been applied in the manner that Johnston suggests in a dissolution case, namely to an item specifically designated as not being a marital asset. See Putnam v. Tennyson, 50 Ind. 456, 458-59 (1875) (holding that an attorney who obtained a judgment of alimony for his client may, under the attorney lien statute, have a lien for his fees). Moreover, the rationale for allowing an attorney’s lien as explained by the Booram Court does not apply in this instance. In other words, an attorney would be entitled to a lien only upon property recovered for a client.

Here, Johnston did not recover the Crown Hill property for Korkos; Korkos bought it with his own funds, and it was specifically declared not to be a marital asset by the trial court. The Crown Hill property, not having been designated as a marital asset, was outside of the judgment of the trial court, and as such it could not be considered a “recovery” by Johnston. Therefore, Johnston is not entitled to an attorney’s lien on the Crown Hill property.
Affirmed.
SULLIVAN, J., concurs.

MAY, J., dissents with separate opinion.
The case before us represents a rare if not unique situation where an asset was explicitly excluded from the marital pot yet was funded at least in part with assets that were or should have been included in the marital pot. Because the house was so funded, I believe it represents “something created by, or recovered for, the client,” Booram, 216 Ind. at 506, 25 N.E.2d at 330, and is therefore subject to an attorney’s lien. * * * The majority’s holding that the real estate does not represent something Johnston created or recovered for Korkos elevates form over substance. I would decline to do so and must therefore respectfully dissent.


John Goldsberry v. State of Indiana (1/28/05 IndCtApp) [Criminal Law & Procedure]
May, Judge
John Goldsberry appeals his convictions of and sentences for criminal recklessness, a Class D felony, and battery, a Class A misdemeanor. He raises several issues on appeal, which we consolidate and restate as:
1. Whether the trial court erred when it admitted evidence of prior physical altercations between Goldsberry and the victim and of phone calls Goldsberry made to the victim in the months after the crimes in question;
2. Whether Goldsberry’s convictions violate his right under the Indiana Constitution to be free from double jeopardy;
3. Whether Goldsberry’s sentences violate his Sixth Amendment right to trial by jury pursuant to Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), reh’g denied 125 S. Ct. 21 (2004); and
4. Whether the trial court erred when it prohibited Goldsberry from possessing or owning a firearm.
We affirm in part and reverse and remand in part. * * *

An exception to [the Blakely] rule is the fact of a prior conviction. The State argues Goldsberry waived his Sixth Amendment argument by failing to raise it at sentencing. Recently, a panel of this court held that a defendant did not waive his Blakely argument by failing to present it at trial because a defendant must knowingly and intelligently waive his right to trial by jury, which the defendant could not have done prior to knowing he had such a right. Strong v. State, 817 N.E.2d 256, 260-61 (Ind. Ct. App. 2004). We see no reason to stray from that holding here. * * *

Given the number of convictions in Goldsberry’s criminal history and the fact the court can find criminal history as an aggravator without the assistance of a jury, the trial court did not violate Blakely when it sentenced Goldsberry to more than the presumptive for criminal recklessness. * * *

The trial court ordered Goldsberry to serve a one-year sentence for battery as a Class A misdemeanor. Ind. Code § 35-50-3-2 provides: “A person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year; in addition, he may be fined not more than five thousand dollars ($5,000).” * * * As the trial court can impose a one-year sentence for a Class A misdemeanor without any additional findings, Blakely is not implicated. * * *

Consecutive Sentences * * * The State also notes that numerous jurisdictions have held Blakely does not apply to consecutive sentencing decisions. We agree with the State. Recently, a panel of this court held Blakely does not apply to a trial court’s decision to order sentences to be served consecutively, Cowens v. State, 817 N.E.2d 255, 255 (Ind. Ct. App. 2004), and we reaffirm that holding here. * * *

[Ex post facto issue] Those statutes [see below] give the trial court authority to prohibit a person who commits an act of “domestic violence” from possessing a gun in the future. However, we have concern about the application of those statutes to Goldsberry.

Ind. Code § 35-38-1-7.7, subsection (b) of Ind. Code § 3-7-13-5, and subsection (g) of Ind. Code § 33-28-4-8 were all added to the Indiana Code pursuant to Public Law 195 – 2003. The additions and modifications in P.L. 195 – 2003 had an effective date of July 1, 2003. Goldsberry committed battery and criminal recklessness against Wilkerson on or about January 31, 2003, prior to the effective date of those statutes.

Both the United States Constitution and the Indiana Constitution prohibit ex post facto laws. See U.S. Const. Art. I, § 10, Ind. Const. Art. I, § 24. The analysis for whether a statute violates the ex post facto provisions is the same under the federal and state constitutions. The ex post facto clauses prohibit Indiana from enacting a law that “imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Our focus is not on whether the legislative change causes a “disadvantage.” Rather, we must determine whether the change “increases the penalty by which a crime is punishable” or “alters the definition of criminal conduct.”

[The Court then adapts a "two-part test" for determining whether a sanction is punishment.]

As the Act explicitly indicates it is to amend the criminal code and the legislature placed in Title 35 the statute ordering the trial court to make a finding of domestic violence upon sentencing, we believe the legislature intended the sanction to be a criminal punishment. Cf. Spencer, 707 N.E.2d at 1043 (holding legislature’s intent was civil where Act had no stated purpose and Act added only civil code sections). Therefore, application of Ind. Code § 35-38-1-7.7 to Goldsberry violates the ex post facto clauses of the federal and state constitutions, and we must reverse the trial court’s order finding Goldsberry committed an act of domestic violence.

Conclusion. The trial court’s admission of the prior acts was not erroneous and the admission of the phone calls was harmless error. Goldsberry’s right to be free from double jeopardy was not violated by his convictions of both criminal recklessness and battery. Goldsberry’s sentences do not violate the Sixth Amendment as explained in Blakely. However, the trial court’s order finding Goldsberry committed an act of domestic violence, which finding would indefinitely prohibit Goldsberry from owning a firearm, violates Goldsberry’s right to be free from ex post facto laws and must be reversed.
Affirmed in part and reversed in part.
BARNES, J., and CRONE, J., concur.

Melissa Lynn Gabbard v. Gerald Dennis (1/28/05 IndCtApp) [Attorney Fees; Statutory Interpretation]
Darden, Judge
Melissa Lynn Gabbard appeals the trial court's denial of her motion for an award for attorney's fees, costs, and expenses pursuant to [IC] 34-50-1-6 after she had made a timely qualified settlement offer to Gerald Dennis in Dennis' personal injury action against her and a jury had returned a verdict in her favor. We reverse and remand with instructions. * * *

On December 11, 2003, the trial court heard the parties' arguments. Dennis conceded that "a qualified offer . . . was sent" to him by Gabbard on August 29, 2000, and that he "received zero in [a] jury trial." However, Dennis argued that the counsel's affidavit regarding Gabbard's attorney's fees "doesn't set out time records, does not set out any kind of detail itemization for the Court." Gabbard's counsel responded that the statute only sets a maximum award of $1,000, with a maximum hourly of $100 for attorney's fees, and his affidavit was made "as an officer of the Court." Gabbard's counsel then proceeded to review the various legal tasks he had undertaken for Gabbard before trial and argued that "fees for the two days of jury trial alone were over $1,500.00" at an hourly rate of $100.

On January 5, 2004, the trial court issued an order granting Dennis' motion to set aside the order to pay $1,000.00 to Gabbard for attorney's fees, costs and expenses. The order did not indicate the basis therefor.

On February 5, 2004, Gabbard filed a motion to correct error, alleging that the trial court erred when it failed to take judicial notice of the litigation activity, including a two-day jury trial, and failed to afford appropriate weight to the unrebutted affidavit of Gabbard's counsel. A hearing was held on May 10, 2004, wherein Gabbard argued that the statute does not require the attorney's time to be "detailed in the affidavit" and that the statute specifically states "that the affidavit constitutes prima facie proof of the reasonableness of the amount." The trial court denied Gabbard's motion. * * *

The statute does not mandate that certain facts be contained in an affidavit in order to establish reasonable attorney's fees, costs, and expenses for the purpose of an award thereunder. The affidavit of Gabbard's counsel stated that her representation "greatly exceed[ed]" the statutory maximum of $1,000. The court's own record clearly reflects that counsel's representation of Gabbard required a significant amount of time and expense. Dennis did not challenge the prima facie proof presented by Gabbard's counsel showing that she had incurred attorney's fees, costs, and expenses in excess of $1,000. Given the language of the statute and the overwhelming evidence in the record before us, we can find no basis upon which the trial court could properly have denied Gabbard's motion. Accordingly, based upon the facts herein, we find that it was an abuse of discretion and contrary to law for the trial court to have not awarded Gabbard $1,000 for attorney's fees, costs, and expenses.

We reverse and remand with instruction to the trial court to enter an award to Gabbard in the amount of $1,000 for attorney's fees, costs, and expenses.
FRIEDLANDER, J., and MATHIAS, J., concur.

Posted by Marcia Oddi on January 28, 2005 02:02 PM
Posted to Ind. App.Ct. Decisions