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Friday, February 18, 2005

Ind. Decisions - Court of Appeals posts five today, including the hands-down winner of case-name of the year

Tanya D. Merritt v. State of Indiana (2/18/05 IndCtApp) [Criminal Law & Procedure]
Riley, Judge

STATEMENT OF CASE. Appellant-Defendant, Tanya D. Merritt (Merritt), appeals her conviction for Count I, possession of cocaine, a Class D felony, Ind. Code § 35-46-4-6; and Count II, reckless possession of paraphernalia, a Class B misdemeanor, I.C. § 35-48-4-8.3(c). We reverse and remand.

ISSUES. Merritt raises three issues on appeal, one of which we find dispositive and restate as follows: whether fundamental error occurred during voir dire when the trial court gave the jury venire an example of constructive possession that was similar to the facts of the case. * * *

CONCLUSION. Based on the foregoing, we find that prejudice resulted from the trial court’s constructive possession example, and that fundamental error occurred. Reversed and Remanded.
CRONE, J., and ROBB, J., concur.

$100 and a Black Cadillac, VIN 1G6K52B3PU807567 and Abbie Ellenstein v. State of Indiana (2/18/05 IndCtApp) [Criminal Law & Procedure]
May, Judge
Abbie Ellenstein appeals the forfeiture of her Cadillac pursuant to Ind. Code § 34-24-1-1 (“the forfeiture statute”). She raises two issues on appeal, which we reorder and restate as: (1.) Whether the evidence is sufficient to support the trial court’s finding Ellenstein must forfeit the Cadillac; and (2.) Whether the forfeiture statute is unconstitutional.
We affirm. * * *

Conclusion. Ellenstein’s plea of guilty to dealing in marijuana as a Class A misdemeanor under Ind. Code § 35-48-4-10(a)(2)(C), based on her arrest for possessing one pound of marijuana in her Cadillac, was sufficient evidence by which the court could determine the Cadillac had been used to “transport” “a controlled substance” for the purpose of committing dealing in marijuana in violation of Ind. Code § 35-48-4-10. Ind. Code § 34-24-1-1(a)(1)(A)(viii).

Ellenstein’s arguments regarding the constitutionality of the forfeiture statute either were waived or failed on their merits. Accordingly, we affirm the forfeiture of Ellenstein’s Cadillac. Affirmed.
VAIDIK, J., concurs.
SULLIVAN, J., concurs as to Part 2(a), 2(b), 2(c), 2(d), 2(f) and 2(g); concurs in result as to Parts 1 and 2(e).

J Squared, Inc., et al. v. Daniel Herndon (2/18/05 IndCtApp) [Employment Law]
Najam, Judge

J Squared, Inc. d/b/a University Loft Company (“ULC”) appeals from the trial court’s judgment in favor of Daniel Herndon on his complaint seeking payment of commissions following the termination of his employment with ULC. The trial court awarded Herndon compensatory and liquidated damages and attorney’s fees. ULC presents the following issues for our review. [1.] Whether the trial court erred when it concluded that Herndon was entitled to the disputed commissions. [2.] Whether the trial court erred when it concluded that Herndon was entitled to liquidated damages and attorney’s fees under the Indiana Wage Claims Statute. We affirm. * * *
KIRSCH, C.J., and VAIDIK, J., concur.

Cynthia Watson v. Auto Advisors, Inc. and T.G. Klota (2/18/05 IndCtApp) [Torts]
May, Judge
Cynthia Watson appeals the trial court’s grant of the motion to dismiss filed by Auto Advisors Inc. and Thomas G. Klota. Watson’s complaint alleged the failure of Auto Advisors and Klota to be represented by an attorney in a previous small claims court action against Watson rendered the small claims court’s judgment in favor of Klota void and rendered his small claims action against her malicious prosecution, abuse of process, statutory deception, a frivolous action, unauthorized practice of law, and a violation of the Federal Fair Debt Collection Practices Act (“FDCPA”). Watson raises one issue, which we expand and restate as: [1} Whether the trial court erred in dismissing Watson’s claim to the extent it requested the court declare void a prior small claims court judgment in favor of Klota; and [2] Whether the trial court erred in dismissing Watson’s claim to the extent she asserted the defendants brought a frivolous lawsuit, violated the FDCPA, and committed unauthorized practice of law, malicious prosecution, abuse of process, and statutory deception. We affirm. * * *

Watson may not collaterally attack the validity of the Small Claims Court’s judgment in favor of Klota. By failing to provide any argument on appeal, Watson waived her arguments regarding statutory deception and the bringing of a frivolous action, and defendant’s alleged violations of 15 U.S.C.A. §§ 1692d, 1692e, 1692f, and 1692g. The facts most favorable to Watson do not support a cause of action for unauthorized practice of law, malicious prosecution, abuse of process, and violation of § 1692j of the FDCPA. Accordingly, we cannot say the Superior Court erred when it dismissed Watson’s claims. Affirmed.
SULLIVAN, J., and VAIDIK, J., concur.

Robert Higginbotham v. Kathryn Higginbotham (11/5/04 IndCtApp) [Family Law]
[Initially NFP]
Baker, Judge
Appellant-petitioner Robert Higginbotham, appeals the trial court’s order regarding custody of his minor daughter, K.H., in favor of appellee-respondent Kathryn Higginbotham. Specifically, Robert raises three issues, which we consolidate and restate as whether the trial court abused its discretion by: (1) rejecting the parties’ agreement to continue joint legal custody; and (2) terminating Robert’s midweek visitation and conditioning its resumption upon K.H. showing vast improvement in her scholastics. Finding no error, we affirm. * * *
KIRSCH, C.J., and ROBB, J., concur.

Posted by Marcia Oddi on February 18, 2005 01:50 PM
Posted to Ind. App.Ct. Decisions