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Thursday, April 14, 2005

Ind. Decisions - Court of Appeals posts four today

Sarah Bodem v. Rebecca Bancroft (2/28/05 IndCtApp) [Torts; Procedure]
[Initially NFP]
Sullivan, Judge

Appellant, Sarah Bodem, brings this interlocutory appeal challenging the trial court’s order granting Appellee Rebecca Bancroft’s Motion to Consolidate Cases for Trial. The sole issue presented for our review is whether the trial court abused its discretion in doing so. We affirm.

Bodem and Bancroft were involved in an automobile accident on October 17, 2000. As a result, Bancroft filed a complaint for personal injuries against Bodem in the Madison Circuit Court on August 6, 2001 (“the Bodem action”). On February 1, 2001, Bancroft was involved in an accident with Marie Ellen Beck. Ms. Bancroft filed a second complaint for personal injuries against Beck in the Madison Circuit Court on August 24, 2001 (“the Beck action”).
On August 18, 2003, Bancroft filed a motion to consolidate the Bodem action with the Beck action. Bodem, along with Beck, filed an objection to Bancroft’s motion to consolidate. * * *

Upon appeal, Bodem argues that the court abused its discretion in ordering consolidation because there are no common issues of law or fact, let alone similar determinative facts and issues, between the Bodem action and the Beck action. Bodem first notes that although the accidents which precipitated both actions were rear-end collisions, the accidents occurred on separate days (three and a half months apart) and in different counties. * * *

For consolidation to be proper, it is only necessary that the actions involve a common question of law or fact. Trial Rule 42 does not contain the “same transaction or occurrence” requirement as is found in the rule governing joinder. We cannot deny that if presented with an issue under T.R. 20, we would conclude, as the court in Grove did, that joinder of Bodem and Beck as defendants in the same action would have been improper as there is no logical relationship between the two accidents, except for injury to the same plaintiff. Nevertheless, here, we must only review the trial court’s determination that there is a common issue of law and fact sufficient to justify consolidation. As noted, there is a common question of fact as to the injuries sustained by Bancroft. The judgment of the trial court is affirmed.
NAJAM, J., and BARNES, J., concur.


Mark Kelley v. State of Indiana
(4/14/05 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Mark Kelley appeals from his conviction for Possession of Methamphetamine as a Class C felony. See footnote He presents one main issue for our review, whether a statement he made to police and evidence seized following that statement should have been admitted at trial. His argument also presents a second issue which we must resolve, whether testimony from a motion to suppress hearing may be considered in determining whether evidence is admissible during trial. We affirm. * * *
BAILEY, J., and MATHIAS, J., concur.
Donald Edward Hill v. State of Indiana (4/14/05 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge
Donald Hill appeals his conviction and sentence for Class B felony dealing in a narcotic. We affirm. * * *

Although Hill asserts that the trial court’s sentencing order makes no findings as to aggravators or mitigators, we examine both the written sentencing order and the trial court’s comments at the sentencing hearing to determine whether the trial court adequately explained the reasons for the sentence. See Boner v. State, 796 N.E.2d 1249, 1255 (Ind. Ct. App. 2003). At the sentencing hearing, the trial court recognized several aggravators before it enhanced Hill’s sentence. One such factor was Hill’s criminal history, which the trial court emphasized. Hill served time in a juvenile facility in Florida for burglary and was convicted of aggravated robbery in Tennessee. In Indiana, Hill was convicted of Class D felony possession of stolen property. A single aggravating factor is adequate to justify an enhanced sentence. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). Thus, Hill’s enhanced sentence is proper based on his criminal history.

Conclusion. The trial court properly admitted evidence obtained during the officers’ warrentless search of Hill’s trailer, his statements to the officers were voluntarily made, there is sufficient evidence to support his conviction, and his sentence is proper. We affirm. Affirmed.
MAY, J., and DARDEN, J., concur.


Nance and Pipe Creek Sand & Gravel v. Miami Sand & Gravel, LLC
(4/14/05 IndCtApp) [Torts]
Barnes, Judge
John and Georgia Nance appeal the trial court’s judgment holding them jointly and severally liable, along with their son and daughter-in-law, Nick and Tonia Nance, to Miami Sand and Gravel, LLC (“Miami”) for damages arising out of a failed business enterprise. We affirm in part, reverse in part, and remand. * * *

Conclusion. Our resolution of the various issues requires us to delineate carefully the effect of our decision. John and Georgia are only liable in conversion to Miami for the $524 they temporarily deposited in the “Pipe Creek” account, and the amount of damages is the interest accrued during the period of conversion, not the full $524. We remand for calculation of that amount, for which John, Georgia, Nick, and Tonia may be jointly and severally liable. The judgment against John and Georgia for conversion related to the “Our Miami” account and for trespass is reversed in its entirety as to them, but remains as to Nick and Tonia. The $20,000 contempt fine is reversed in its entirety as to all parties because of a lack of evidence or findings that Miami suffered damages in that amount as a result of the purported contempt. We reverse the attorney fees award against all parties and remand to give Miami an opportunity to allocate attorney fees related only to its conversion claims. The award of “costs,” except for $104 in court costs, is reversed with respect to all parties. The permanent injunction against John and Georgia must be modified in accordance with this opinion, but is otherwise affirmed. The judgment is also affirmed with respect to the $63,543 entered against only Nick, Tonia, and N & N. Affirmed in part, reversed in part, and remanded.
MAY, J., and DARDEN, J., concur.

Posted by Marcia Oddi on April 14, 2005 01:28 PM
Posted to Ind. App.Ct. Decisions