Wednesday, February 08, 2006
Ind. Decisions - Supreme Court decides two today
In Mark E. McDillon v. Northern Indiana Public Service Co., a 4-1, 8-page opinion, Justice Dickson writes:
We granted transfer in this case to address the application of Indiana Trial Rule 6(E). The Court of Appeals, reversing because of a jury instruction error, remanded for a new jury trial after applying Rule 6(E) to extend by three days the commencement of the ten-day period for filing a request for jury trial and thus rejecting a challenge to the timeliness of the defendant's jury demand. We reach the same outcome, but on grounds other than Rule 6(E). * * *In Tyrus Bryant v. State of Indiana, a 6-page opinion, Chief Justice Shepard writes:
As correctly noted by the Court of Appeals, when a default judgment is set aside, to determine the due dates for subsequent pleadings, the complaint is treated as if it had been filed on the date of the order setting aside the default judgment. McDillon, 812 N.E.2d at 158 (citing Wright v. Paraservices, Inc., 726 N.E.2d 1263, 1265 (Ind. Ct. App. 2000)). Thus the period within which McDillon could properly file a jury trial demand expired on June 28, 2001, ten days after his responsive pleading was due. By mailing his written demand for jury trial by certified mail on June 28, even though it was not received by the court clerk until the following day, McDillon's jury trial request was timely filed.
While we granted transfer to clarify the application of Trial Rule 6(E), such analysis is not determinative in this case. We conclude that the trial court correctly found McDillon's jury trial demand to be timely pursuant to Trial Rule 5(F). In all other respects, the opinion of the Court of Appeals is summarily affirmed. This cause is remanded accordingly.
Shepard, C.J., and Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs and dissents with separate opinion.
I concur in the Court’s opinion in respect of the application of Ind. Trial Rule 6(E). I re-spectfully dissent, however, from the Court’s summarily affirming the decision of the Court of Appeals that reversed the jury’s verdict in favor of the plaintiff in this case. * * *
I think this tension will create great uncertainty for plaintiffs, defendants, and trial court judges.1 For this reason, I think we should not summarily affirm the decision of the Court of Appeals on this point but instead address the merits and explain when a defendant who asserts that a person other than the defendant has caused the plaintiff’s damages is required to name that other person and when not.
1 This tension and uncertainty was predicted by a law journal student note that appeared shortly after the adoption of the Comparative Fault Act. See Peter H. Pogue, Note, The Apportionment of Fault to Unidentifiable Tortfeasors Under Indiana’s Comparative Fault Statute: What’s in a Name?, 23 Val. U. L. Rev. 413 (1989). Mr. Pogue’s prescient article even poses as a hypothetical the precise problem of this case: how to satisfy the statute’s naming requirement when the nonparty is an unidentified car thief. Id. at 441 n. 215.
This is one of a good many cases that were pending on direct appeal when Indiana’s criminal sentencing scheme was declared unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004), and to which that holding therefore applies. Here, the trial court enhanced a sentence based on a finding that the perpetrator “lay in wait” and on the perpetrator’s prior criminal convictions. Under Blakely, the first of these findings must be made by a jury. Uncertain about the nature of the prior convictions and whether they warrant a maximum enhancement, we grant Tyrus Bryant’s petition to transfer and remand. * * *My thoughts. Well, it would be pretty cool to have the Supreme Court pick up on your law journal note, even 17 years later!
We reverse the sentencing enhancement and remand to the trial court for new sentencing, either through a clearer explanation of Bryant’s criminal history, or, should the State elect, through the intervention of a jury. We affirm the imposition of the consecutive sentences and the judgment otherwise.
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., concurs in result without separate opinion.
Posted by Marcia Oddi on February 8, 2006 12:35 PM
Posted to Ind. Sup.Ct. Decisions