Thursday, September 06, 2007
Ind. Decisions - Court of Appeals issues 1 today (and 1 NFP)
For publication opinions today (1):
In Kirk Reuille v. E.E. Brandenberger Construction, Inc., a 13-page opinion, Judge Sharpnack writes:
Kirk Reuille appeals the trial court’s judgment in favor of E.E. Brandenberger Construction, Inc. (“Brandenberger”). Reuille presents two issues on appeal, which we restate as: I. Whether the trial court erred in interpreting the phrase “prevailing party” in the contract between Brandenberger and Reuille; and II. Whether the trial court erred when it characterized Reuille’s motion for attorney fees as one for summary judgment. We affirm.NFP civil opinions today (0):
The relevant facts follow. In February 1997, Reuille and Brandenberger entered into an agreement for the construction of a new home in Fort Wayne, Indiana. In the construction contract, a section entitled “Costs and Attorney fees” provided: “In any action at law or in equity, including enforcement of an award from Dispute Resolution, or in any Dispute Resolution involving a claim of five thousand dollars or more, the prevailing party shall be entitled to reasonable costs and expenses, including attorney fees.” * * *
Thus, even under current precedent, Reuille does not qualify as a prevailing party because, although the parties entered into a settlement agreement, Reuille had neither a consent decree nor an enforceable judgment entered along with his settlement agreement. Unlike the court in Daffron, where the court entered a consent judgment after the settlement, Reuille had nothing but a private settlement agreement. As a result, the trial court was correct in its judgment that Reuille was not a prevailing party. Cf. D.S.I., 742 N.E.2d at 25 (holding that settlement agreement, along with an injunction, was sufficient judicial intervention to entitle plaintiff to prevailing party status).
NFP criminal opinions today (1):
Ind. Courts - "New federal courts building planned in Terre Haute"
TERRE HAUTE - A downtown site has been selected as the location for a new building that will house federal courts and other agencies.A more detailed story, by Howard Greninger of the Terre Haute Trib-Star, is available here.
The U.S. General Services Administration announced Wednesday it had agreed to lease the building from Thompson Thrift Development, a Terre Haute-based real estate firm.
The new building would replace the city's existing federal building that is to be turned over to Indiana State University as the new site for its College of Business.
Federal officials had announced plans in 2005 to close the court office, but reversed that decision to allow city officials time to find a new location. * * *
The federal court for the Southern District of Indiana covers about the southern two-thirds of the state, with other court offices at Indianapolis, Evansville and New Albany. The Terre Haute court typically has a part-time magistrate judge assigned to it.
Ind. Courts - More on: Another case today of missing court records
The Fort Wayne Journal Gazette has an editorial today about the the missing court records the JG reported about on August 30th (see ILB entry here). This is the case where the defendant's mother has the transcript and evidence and won't give it back. Some quotes:
Attorney Robert Gevers II took custody of the official trial record of the case involving a client, Daniel Favela. The record includes a 13-volume transcript of everything said during the trial. More seriously, the record also includes all of the trial evidence – the originals of paper documents and other written evidence, plus photographs of the physical evidence and audio and video recordings.
The practice of an attorney taking the record to his or her law offices while preparing a criminal appeal is routine.
What happened later, though, is far from routine.
After the defendant’s mother said she wanted to talk to a different attorney, Gevers should have returned the official court record to the Courthouse or, at worst, the new attorney. Instead, someone in his office gave it to the mother, Adela Favela – who is not even a party in the case. She has refused to return the transcript and is in jail for contempt of court.
Adela Favela’s motivations are unclear, but it’s possible that in some ways, she may think she is entitled to the record. The side that seeks the appeal must pay the cost of the transcript, which can reach thousands of dollars. When the defendant has a public defender, the taxpayers foot the bill, but when the attorney is privately hired, the defendant pays. Daniel Favela’s family may have paid a large sum of money for the transcript.
Even though the defendant pays for the transcript, the original document is the property of the clerk of courts. Plus, remember that what Adela Favela has is not merely the transcript but the entire court record, complete with evidence. * * *
The knee-jerk reaction would be to call for tighter rules – yet officials in the judicial and legal communities can’t recall a similar incident ever happening, and the rules already state that only a party to the case may withdraw the file.
The courts could make copies of the official record – indeed, the rules expressly permit it – but it would cost taxpayers hundreds of dollars each time. The courts could forbid attorneys from taking records from the Courthouse, but that would punish the countless attorneys who have followed procedures without problems.
Now, the clock is ticking on Daniel Favela’s new attorney to file an appeal – which requires the official record. The accuracy of a re-created record will pose significant questions for the Indiana Court of Appeals.
Whatever is motivating Adela Favela from returning the record, with luck she will come to understand that this matter involves not just her son but the integrity of the court’s record-keeping system.
In any event, Daniel Favela’s trial record is destined to be used as an example in law schools and law firms, and indeed, to us all – don’t borrow something and lend it to someone else.
Law - Ohio federal judge rules sex offender living near school can't be evicted
Joe Milicia of Associated Press reports in a story in the Cincinnati Post:
CLEVELAND - Authorities cannot evict a convicted rapist whose home is near a school, a federal judge in Akron ordered Tuesday, ruling that the state's law limiting where sex offenders live is unconstitutional if applied to crimes committed before the law went into effect. * * *"Sex offenders ruling could have wide effect: Barring reversal on appeal, Akron decision is viewed as binding on other cases" is the headline to this story by Ed Meyer in the Akron Beacon Jounral. Some quotes:
Judge James S. Gwin ruled that the law cannot be applied to sex offenders who committed crimes before July 31, 2003, the effective date of the Ohio legislature's ban on offenders living within 1,000 feet of school property.
Gwin ruled that the law punishes sex offenders and ordered county Prosecutor Sherri Bevan Walsh not to enforce the law against Mikaloff.
John Manley, chief counsel with the Summit County prosecutor's office in Akron, said the prosecutor's staff disagreed with the ruling and that an appeal was likely.
"We maintain it's not a punitive measure, it's merely a protective measure," he said.
If not considered punishment, the law wouldn't violate the constitutional prohibition against imposing a new penalty retroactively, Manley said.
Thousands of Ohio sex offenders could be affected by this week's federal court ruling that a law barring offenders from living near a school is unconstitutional, defense lawyers said.The same issue is pending before a number of state courts in Indiana - see this list of ILB entries.
David A. Singleton, executive director of the Ohio Justice and Policy Center in Cincinnati, said Tuesday's ruling in U.S. District Court in Akron is binding on all similar cases that might arise in the court's northern district, unless it is reversed on appeal.
In a 21-page decision, Judge James S. Gwin found that the state law prohibiting sex offenders from living within 1,000 feet of a school is unconstitutional for those who committed their crimes before the law took effect on July 31, 2003.
[More] The Terre Haute Trib-Star has an article today by Laura Followell that reports:
BRAZIL — When it comes to the sex offender registry, Clay County Sheriff Mike Heaton has decided to relieve some of the taxpayers’ burden.
As of Wednesday, sex offenders must pay a $50 yearly fee when they register in Clay County.
The money will help offset costs associated with processing, tracking and communicating with sex offenders, Heaton said.
“Right now the taxpayers are footing the bill for everything we do. But as part of these individuals’ sentences, for whatever their offense is, this is part of it. They have to register. It’s putting some of the cost off on them,” Heaton said.
The State of Indiana collects 10 percent of an offender’s first registration fee, thereafter Clay County gets 100 percent of the fee for the duration of the offender’s required registration. * * *
The registration fee is optional for every county in Indiana, and the Clay County Council passed Heaton’s proposal.
Each Indiana sheriff is responsible for the sheriff’s registry because of a state law mandating that their departments establish and maintain a Web site providing detailed information about sex offenders.