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Wednesday, March 29, 2006

Ind. Decisions - Court of Appeals issues three today

In Robert C. Welches v. State of Indiana, a 6-page opinion, Senior Judge Barteau writes:

Petitioner-Appellant Robert C. Welches appeals the trial court’s denial of his petition for leave to file a belated notice of appeal. We reverse and remand with instructions.

The following issue is dispositive: Whether the trial court erred in denying Welches’ petition for leave to file a belated notice of appeal. * * *

The trial court erred in ruling that Welches could have challenged his sentence in a post-conviction proceeding. As noted in Collins, the post-conviction court would have had no jurisdiction to consider the propriety of Welches’ sentence. Welches may appeal his sentence by filing a belated notice of appeal pursuant to P-C R. 2.

The State does not challenge the applicability of Collins to the present case. Instead, the State argues that Welches has failed to establish that he is entitled to relief under P-C.R. 2. In support of its argument, the State cites Beaudry v. State, 763 N.E.2d 487, 489 (Ind. Ct. App. 2002). * * *

The trial court erred in denying Welches’ petition on the basis that he could have raised the issue in a post-conviction proceeding. We reverse and remand with instructions that the trial court hold a hearing on Welches’ petition.

In David Lee Helms, Jr. and Darlene R. Helms v. Carmel High School Vocational Building Trades Corp., a 7-page opinion, Judge Najam writes:
David Lee Helms, Jr. appeals from the trial court’s entry of summary judgment in favor of Carmel High School Vocational Building Trades Corporation (“Carmel”) on Helms’s complaint for damages. Helms presents a single dispositive issue for our review, namely, whether the trial court erred when it concluded that Carmel did not owe Helms a duty to provide him with a safe worksite. We affirm. * * *

Here, Helms has not alleged that his injuries are the result of negligent hiring. Given the holding in Roberts, we conclude that Helms does not have a claim against Carmel. See Roberts, 829 N.E.2d at 953. The trial court did not err when it entered summary judgment in favor of Carmel.

In In the Matter of M.K. v. Kathy Keller, an 8-page opinion, Senior Judge Hoffman writes:
Petitioner-Appellant/Cross-Appellee Larry Keller (“Larry”) appeals from the portion of the trial court’s order denying him an award of attorney’s fees in a guardianship proceeding involving M.K. Respondent-Appellee/Cross-Appellant Kathy Keller (“Kathy”) appeals from the portion of the trial court’s order voiding a durable power of attorney in favor of Kathy, and the portion of the trial court’s order appointing Larry as guardian of the estate of M.K. * * *

In the case at bar, the trial judge was concerned about depleting M.K.’s estate by ordering payment of attorney’s fees from the estate given the apparent lack of cooperation among family members. While the decision to forego payment of any attorney’s fees was error, on remand the trial judge can adjust the attorney’s fees award to reflect a reasonable amount if necessary to prevent depletion of M.K.’s estate. But the trial judge is mandated by statute to order the payment of reasonable attorney’s fees. * * *

Kathy raises the issue of the propriety of the trial judge’s decision to void the power of attorney. She also challenges the trial judge’s decision to appoint Kathy guardian of the person and Larry guardian of the estate. Larry argues that the issues Kathy raises in her cross-appeal are moot. Kathy cites no authority for her contention that M.K.’s death had no effect on the cross-appeal issues she raises. * * *

In the present case, Kathy’s arguments are 1) that the trial court failed to give proper consideration or weight to the existing power of attorney, and that there was insufficient evidence in the record to support the trial judge’s decision to grant the petition, and 2) that the trial court erred by failing to give proper weight to M.K.’s wishes to have Kathy appointed guardian if necessary. Here, as in Powell, it would serve no purpose in light of M.K.’s death to pass on the sufficiency of the evidence presented below in the hearing on the petition to establish a guardianship. Kathy’s cross-appeal issues are moot.

Therefore, we remand this matter to the trial court for a determination of what constitutes a reasonable attorney’s fee. We do not decide Kathy’s cross-appeal issues because they present moot questions. Reversed and remanded.

Posted by Marcia Oddi on March 29, 2006 10:42 AM
Posted to Ind. App.Ct. Decisions