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Thursday, September 20, 2007

Ind. Decisions - Court of Appeals issues 6 today (and 12 NFP)

For publication opinions today (6):

In Mike Perry, City of Charleston Sewer Dept. v. Jesse Ballew, a 10-page opinion, Judge Barnes concludes:

Because there is no authority clearly requiring the Sewer Department to issue a tap-in permit to Ballew, the trial court’s conclusion is clearly erroneous. A petition for mandate is not the proper avenue for relief. Although the Sewer Department may be in breach of its contract with K.B.J. or Ballew may eventually be able to establish that the permit was wrongfully denied through judicial review proceedings, the trial court improperly granted Ballew’s petition for mandate.4 Conclusion In the absence of a clear legal duty to issue a tap-in permit to Ballew, the trial court improperly granted Ballew’s petition for mandate. We reverse.
In Kevin Hampton v. State of Indiana , a 15-page opinion, Chief Judge Baker writes:
Appellant-defendant Kevin L. Hampton appeals his convictions for Murder, a felony, Rape, a class B felony, and Criminal Deviate Conduct, a class B felony. Specifically, Hampton claims that the trial court erred in denying his motion for a mistrial, that the evidence was insufficient to support his convictions for rape and criminal deviate conduct, and that the trial court erred in imposing the maximum sentence on all counts and ordering his sentence for murder to run consecutively to the sentences imposed for rape and criminal deviate conduct, which were ordered to run concurrently with each other. Hampton further claims that the trial court erred in ordering those sentences to run consecutively to one that he was already serving in an unrelated cause. Concluding that the evidence was sufficient to support the convictions and finding no other error, we affirm the judgment of the trial court.
In David M. Peters v. Julie Perry, Elzie D. Hale and Theresa A. Hale, a 5-page opinion, Judges Barnes writes:
We address one dispositive issue, which is whether Peters’s notice of appeal was timely filed. * * *

Initially, we note that Peters proceeds pro se. Peters, however, cannot take refuge in the sanctuary of his amateur status. * * *

Peters’s November 22, 2006, notice of appeal would be a timely notice of appeal from the trial court’s October 23, 2006 denial of his motion to correct error. This is not a basis for denying appellate jurisdiction.

Our analysis does not end there, however. Peters filed two motions to correct error. The first was filed on June 19, 2006, and was denied on July 5, 2006. We conclude that Peters had thirty days from the July 5, 2006 denial to file his notice of appeal. In reaching this conclusion, we rely on Indiana Trial Rule 53.4, which applies to repetitive motions and motions to reconsider a ruling on a motion. * * *

Although Indiana Trial Rule 53.4(A) does not specifically mention the Indiana Appellate Rules, we do not believe that Peters’s filing of a second motion to correct error extended the time in which he could file a notice of appeal. Indiana Appellate Rule 9(A)(1) provides, “if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court’s ruling on such motion, or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first.” There is no suggestion that filing a second motion to correct error extends the time for filing a notice of appeal.

In Indiana, timeliness of filing a notice of appeal is of the utmost importance. This is evidenced in part by Indiana Appellate Rule 9(A)(5), which states, “Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited . . . .” * * *

We conclude that Peters had thirty days from the date of the denial of his first motion to correct error, July 5, 2006, to file his notice of appeal. Thus, Peters’s November 22, 2006, notice of appeal was not timely filed.

Even if we were to consider Peters’s second motion to correct error in determining whether his notice of appeal was timely, Indiana Trial Rule 53.4(B) provides that a repetitive motion shall be ruled upon within five days or it shall be deemed denied. Thus, when Peters filed his second motion to correct error on July 17, 2006, it was deemed denied on July 24, 2006, and Peters had thirty days from that date to file his notice of appeal. He did not do so. Because Peters did not file a timely notice of appeal, he forfeited his right to appeal.

In Lisa K. Hastetter v. Fetter Properties, LLC, a 10-page opinion, Chief Judge Baker writes:
Appellant-defendant Lisa K. Hastetter appeals from the trial court’s judgment in favor of appellee-plaintiff Fetter Properties, LLC, (Fetter Properties), awarding Fetter Properties damages and attorneys’ fees for Hastetter’s breach of an agreement to reimburse Fetter Properties for storm damage to an awning on property that Fetter Properties had contracted to purchase. Specifically, Hastetter argues that the judgment must be reversed because the alleged agreement requiring her to reimburse Fetter Properties for the damage was not merged into the deed and Fetter Properties waived any right that it may have had to recover damages. Hastetter also claims that the award of attorneys’ fees to Fetter Properties was erroneous because the claim against her was frivolous, without “good faith,” and there was no “legal justification for bringing this action.” Additionally, Hastetter argues that the trial court should have awarded her attorneys’ fees in light of Fetter Properties’ frivolous claim. Finding no error, we affirm the judgment of the trial court and remand this cause for the calculation of reasonable appellate attorneys’ fees to which Fetter Properties may be entitled.
In Bruce Howard v. State of Indiana , a 12-page opinion, Chief Judge Baker writes:
Appellant-defendant Bruce Howard appeals his conviction for Burglary, a class B felony. Specifically, Howard argues that (1) the evidence presented at trial was insufficient to sustain his conviction, (2) the trial court erroneously believed it could not suspend any portion of his sentence because he was a habitual offender, and (3) his sentence is inappropriate in light of the nature of the offense and his character. Although we find that the evidence presented at trial was sufficient and that Howard’s sentence is not inappropriate, the trial court incorrectly described the applicable law during the sentencing hearing; therefore, we remand this cause to the trial court for an opportunity, if it so desires, to suspend up to nine years of Howard’s sentence. Additionally, we instruct the trial court to amend the sentencing order to reflect that Howard’s habitual offender enhancement is not a separate conviction.
Lumbermens Mutual Casualty Co. v. Donna Combs is a complex, 50-page opinion relating to "various rulings and the award of damages, attorney’s fees, and prejudgment interest in favor of Donna Combs on her claims for breach of contract and bad faith termination of her long-term disability benefits." Judge Crone concludes:
In summary, we hold that the trial court correctly concluded that Combs’s claims are not preempted by ERISA; that the trial court properly denied Lumbermens’ motions for judgment on the evidence; that Lumbermens waived any claim of error regarding the admission of Fuller’s testimony and the exclusion of Dr. Warfel’s testimony; that Lumbermens has not shown that it was prejudiced by the admission of Dr. Johnston’s and Dr. Ehlich’s testimony; that the bad faith damages award is supported by the record; that the trial court’s failure to enter detailed findings regarding the propriety and amount of attorney’s fees requires a new evidentiary hearing; and that the trial court abused its discretion in awarding prejudgment interest to Combs. We therefore vacate the award of attorney’s fees and remand for a new evidentiary hearing and the entry of detailed findings, vacate the award of prejudgment interest, and affirm in all other respects.
NFP civil opinions today (6):

Cardiac Pacemakers, Inc. v. Ryan Terry and Linda Mason (NFP) - "Cardiac Pacemakers, Inc., (“CPI”) appeals the trial court’s denial of its motion to intervene in a product liability suit. CPI raises the sole issue of whether the trial court abused its discretion in denying the motion. Concluding that the trial court acted within its discretion, we affirm."

Janetta McClellan v. 4 Rent Inc. d/b/a Thrifty Car Rental (NFP) - "Janetta McClellan (“McClellan”) appeals the trial court’s denial of her Motion to Set Aside Default Judgment. We affirm."

Termination of the Parent-Child Relationship of S.A.; Valerie Averyheart v. Marion County Department of Child Services (NFP) - "Appellant-respondent Valerie Averyheart appeals the trial court’s order terminating her parental relationship with her minor daughter, S.A. Averyheart contends that the alleged policy of appellee-petitioner Marion County Department of Child Services (DCS) of removing a child from a parent’s home based on the fact that the parent has other children who have been removed from her care is unconstitutional. She also argues that there is insufficient evidence supporting the termination of her parental rights. Finding that Averyheart has waived the argument regarding DCS’s policy, that, in any event, there is no evidence in the record establishing that DCS follows such a policy, and that there is sufficient evidence supporting the termination, we affirm the judgment of the trial court."

Andres Vega v. Galfab, Inc. (NFP) - "Vega’s attempt to direct our attention to evidence supporting his claim is merely a request that we reweigh the evidence and judge witness credibility—a practice in which we do not engage when reviewing a decision of the Board. Essentially, the Board concluded that Vega failed to present any credible evidence in support of his claim, as it was entitled to do given the evidence establishing his changing version of events and attempts to hide his medical history. We find that the record supports the Board’s denial of Vega’s claim."

Romilda Smith v. Denise Stadelmaier, D.O. and St. Vincent Hospitals and Health Services (NFP) - "Smith has not demonstrated good cause for failing to timely submit her evidence to the Panel. Therefore, the trial court did not abuse its discretion in dismissing the proposed medical malpractice complaint."

Termination of the Parent-Child Relationship of W.K. and R.K.; William Knapp and Meredith Knapp v. Bartholomew County of Department of Child Services (NFP) - "Appellants-respondents William and Meredith Knapp (collectively, the Knapps) appeal from the involuntary termination of their parental rights with respect to their minor children, W.K. and R.K. Specifically, Meredith claims that her due process rights were violated because the trial court waited approximately nine months after the fact-finding hearing to enter the termination order. The Knapps further maintain that the evidence was insufficient to support the termination of their parental rights because appellee-petitioner Bartholomew County Department of Child Services (DCS) failed to show that the conditions resulting in the children’s removal would not be remedied or that the continuation of the parent-child relationship posed a threat to the well-being of the children. Finding no error, we affirm the judgment of the trial court."

NFP criminal opinions today (6):

Henry Lloyd v. State of Indiana (NFP)

Jerome Reed v. State of Indiana (NFP)

Bruce Scott Hoppas v. State of Indiana (NFP)

Corina Y. Smith v. State of Indiana (NFP)

Thomas M. Rosenberger v. State of Indiana (NFP)

Davud Cole v. State of Indiana (NFP)

Posted by Marcia Oddi on September 20, 2007 01:57 PM
Posted to Ind. App.Ct. Decisions