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Friday, September 29, 2006

Ind. Decisions - Court of Appeals issues 5 today (and 20 NFP)

For publication opinions today (5):

Dennis Borders v. State of Indiana is a 4-page opinion by Judge May:

Dennis B. Borders appeals the sentence he agreed to receive in exchange for his pleas of guilty to four out of eleven counts pending against him. He argues the trial court erred when it sentenced him to consecutive habitual offender enhancements. Although this would otherwise be error, Borders received a significant benefit from his plea agreement, and we must accordingly affirm his sentence. * * *

In exchange for Borders’ pleas of guilty to Counts II, VIII, X and XI, the State dismissed three misdemeanor counts, two felonies, an infraction, and an habitual substance offender enhancement. Borders will not be heard to protest that he did not benefit from his plea agreement, even if his sentence was one the trial court could not have otherwise imposed. Affirmed.

Troutwine Estates, et al v. Comsub Design and Engineering, Inc. is a 23-page opinion by Judge Robb, which begins with this summary:
Troutwine Estates Development Company, L.L.C. (“Troutwine”), Daniel Jordan (“Jordan”), Michael D. Jordan, and Mastermark, Inc. (“Mastermark” and collectively the “Developers”), appeal after a bench trial in which the trial court awarded a judgment in favor of ComSub Design and Engineering, Inc. (“ComSub”), in the amount of $72,151.00 for services ComSub provided. The Developers also appeal the trial court’s ruling against their counterclaim for professional negligence by ComSub. ComSub cross-appeals, alleging that the trial court improperly limited its recovery.

Quantum meruit may be applied to prevent unjust enrichment where no contract exists. We therefore affirm the trial court’s judgment in favor of ComSub for services it provided. The Indiana Business Flexibility Act extends liability protection to individuals involved with a limited liability company. In a matter of apparent first impression for this state, we reverse and remand for the trial court to make findings of fact and conclusions thereon regarding derogation of the individual liability protection of Jordan, Michael D. Jordan, and Mastermark for the debts and obligations of Troutwine, and to modify its judgment as necessary. With regard to the Developers’ counterclaim for professional negligence, the trial court did not abuse its discretion when it excluded expert testimony and photographs offered by the Developers. Lastly, we conclude that the trial court improperly limited its judgment in favor of ComSub when it deducted an amount to prevent double recovery and did not grant prejudgment interest. Consequently, we affirm in part, reverse in part, and remand for further proceedings with regard to assignment of personal liability, as well as adjustment of the amount to which ComSub is entitled in damages.

Mario McCann v. State of Indiana is a 20-page opinion by Judge Crone, including a separate concurring opinion beginning on page 18. The opinion begins:
Mario McCann appeals the denial of his petition for post-conviction relief. We affirm in part, reverse in part, and remand.

Issues. We restate McCann’s issues as follows: I. Whether trial counsel was ineffective in failing to object to the trial court’s instruction on attempted murder and tender a correct instruction; and II. Whether appellate counsel was ineffective in failing to raise a double jeopardy argument regarding McCann’s convictions and sentences for attempted murder and class A felony burglary.

In Mark Clarke v. State of Indiana, a 13-page opinion, Judge Sullivan writes:
Appellant, Mark Clarke, brings this interlocutory appeal challenging the trial court’s denial of his motion to suppress. Upon appeal, Clarke presents three issues for our review which we consolidate and restate as: whether his right to be secure from unreasonable search and seizure as guaranteed by the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution was violated. We reverse and remand. * * *

We therefore conclude that the evidence seized as a result of the search of Clarke’s car must be suppressed as “fruit of the poisonous tree.”

In Mollissa Gheae, et al v. Founders Insurance Co., an 8-page opinion, Judge Najam concludes:
We conclude that the Named Operator Exclusion in Gheae’s policy does not contravene the Uninsured Motorist Act. The Act does not require UM coverage here because the losses arose as the result of a hit-and-run accident. Moreover, application of the Named Operator Exclusion eliminates liability coverage under the policy and, as a result, UM coverage is not required under the Act. Because the Act does not mandate UM coverage on the facts presented, Appellants’ claim that the Named Operator Exclusion violates the Act is without merit. Thus, we hold that the trial court did not err when it granted summary judgment in favor of Founders.
NFP civil opinions today (7):

In the Matter of S.K., Debbra Hartung v. Starke Co. Dept. of Child Services (NFP)

Account Recovery v. Christina Zimmerman (NFP)

Wendy Jean Bradbury v. St. Joseph Co. Office of Family & Children (NFP)

Esther and Brian Wilhoite v. Madison Co. Office of Family & Children (NFP)

Daniel Cook v. Stephanie Cook (NFP)

Town of Dyer, et al v. Rueth Development Co., LLC (NFP)

Fremont Investment & Loan, and Erma Crumpton v. LaSalle National Bank (NFP)

NFP criminal opinions today (13) (link to cases):

Michael Watkins v. State of Indiana (NFP)

Dacia Ward v. State of Indiana (NFP)

Gary K. Fields v. State of Indiana (NFP)

David E. Hawes v. State of Indiana (NFP)

Eric Wilson v. State of Indiana (NFP)

Willie B. Walton v. State of Indiana (NFP)

Kahteith Moesley v. State of Indiana (NFP)

Clarence Slone v. State of Indiana (NFP)

Norman Douglas Wells v. State of Indiana (NFP)

Steven Sims v. State of Indiana (NFP)

Andrew Brian Steen v. State of Indiana (NFP)

Joseph Rhone v. State of Indiana (NFP)

Randy Vaught v. State of Indiana (NFP)

Posted by Marcia Oddi on September 29, 2006 01:15 PM
Posted to Ind. App.Ct. Decisions