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Thursday, December 13, 2007

Ind. Decisions - Court of Appeals issues 6 today (and 16 NFP)

For publication opinions today (6):

In Lavern Baltimore v. State of Indiana , a 15-page opinion, Chief Judge Baker writes:

Appellant-defendant Lavern Baltimore appeals his convictions for Burglary Resulting in Bodily Injury, a class A felony, and Sexual Battery,2 a class D felony. Specifically, Baltimore argues that (1) the trial court committed fundamental error when it permitted the victim’s sign language interpreter to testify as a witness for the prosecution; (2) insufficient evidence was presented at trial to sustain his burglary resulting in bodily injury conviction; (3) his convictions violate the Indiana Double Jeopardy Clause because there is a reasonable likelihood that the jury used the same evidence to sustain both convictions; and (4) the trial court’s imposition of a fifty-three-year sentence is inappropriate in light of the nature of the offenses and Baltimore’s character. Finding no error, we affirm the judgment of the trial court.
In Plaza Group Properties, LLC, et al. v. Spencer County Plan Commission, et al. , [see 11/3/07 ILB entry headed "Big-time attorneys argue adult plaza case" for background], a 32-page opinion, Chief Judge Baker writes:
The parties’ dispute requires us to determine the constitutionality of portions of Spencer County’s sexually oriented business ordinances. While there is an abundance of caselaw addressing the constitutionality of similar ordinances, discerning the relevant precedent has been compared to “reading the tea leaves.” Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir. 1994).

Appellants-defendants Plaza Group Properties, LLC, Robert W. Allen, and Fuel in Dale, LLC (collectively, Plaza), appeal the trial court’s grant of summary judgment in favor of appellees-plaintiffs Spencer County Plan Commission and Spencer County Board of Commissioners (collectively, the County). Plaza first argues that it was lawfully using the property when the County enacted the sexually oriented business ordinances; thus, it is entitled to continue its lawful use even though the newly enacted ordinances prohibit it from operating a sexually oriented business on the property. Alternatively, if we find that Plaza’s use was nonconforming at the time the ordinances were enacted, Plaza urges us to find the sexually oriented business ordinances unconstitutional pursuant to the First Amendment to the United States Constitution.

Because we conclude that there is not a genuine issue of material fact that Plaza made more than $5,000 of renovations to the property without receiving a building permit, Plaza is not entitled to lawful nonconforming use status on the property. And because we determine that the portions of the sexually oriented business ordinances at issue do not unconstitutionally burden protected speech, we reject Plaza’s argument that the challenged ordinances are unconstitutional. Therefore, we conclude that the trial court properly granted summary judgment in favor of the County and it was within the trial court’s discretion to enter a permanent injunction prohibiting Plaza from operating a sexually oriented business on the property. Thus, we affirm the judgment of the trial court. * * *

As previously noted, the trial court issued an order on June 18, 2007, emphasizing that while the permanent injunction enjoins Plaza from unlawfully operating a sexually oriented business on the property, Plaza is free to operate a commercial establishment that complies with the County’s ordinances. We find the injunction to be narrowly tailored and conclude that the trial court’s entry of injunctive relief in favor of the County was not an abuse of discretion.

Steven Rogers v. State of Indiana - "Based on the nature of the offense and Rogers’s character, we conclude that the trial court’s imposition of a sixty-year sentence for the commission of murder is not inappropriate."

Shon M. Leroy v. Michelle Kucharski - "Shon M. Leroy appeals the trial court’s grant of a motion to correct error in favor of Michelle Kucharski. Leroy raises one issue, which we revise and restate as whether the trial court abused its discretion by setting aside the jury verdict and ordering a new trial in Kucharski’s negligence action against Leroy. We affirm."

Allen Montgomery v. State of Indiana - "Finding that sufficient evidence exists to support his two Intimidation convictions, that his constitutional argument is precluded from review, and that the trial court did not err in imposing a four-and-one-half-year habitual offender enhancement, we affirm the judgment of the trial court."

In Wayne Jewell v. State of Indiana , a 20-page opinion, Judge Vaidik writes:

Wayne Jewell (“Jewell”) appeals his convictions for two counts of Child Molesting as a Class A felony and one count of Sexual Misconduct with a Minor as a Class D felony. Addressing Jewell’s arguments with respect to each count, we find that the Class D felony Sexual Misconduct with a Minor conviction is barred by the applicable statute of limitations and that one of the Class A felony Child Molesting convictions is not supported by sufficient evidence. We therefore reverse those convictions. With regard to the remaining Class A felony conviction, we find that the State’s amendment of the charging information changing the location of the offense from the victim’s house to the nearby Jewell house was an amendment of form, not substance. Further, with regard to this conviction, we treat Jewell’s arguments of fundamental error for failure to cross-examine and to impeach, failure to investigate, and failure to file a notice of alibi as ineffective assistance of trial counsel arguments. Finding no ineffective assistance of counsel, we affirm this Class A felony conviction. * * * Reversed in part, affirmed in part.

NFP civil opinions today (6):

Progressive Max Insurance Co. v. Bradley Campbell (NFP) - "Based upon the foregoing discussion and authorities, we conclude that the trial court did not err by relying upon Geiger in its dismissal order and that it was well within its discretion when it dismissed Progressive’s lawsuit pursuant to T.R. 41(E). Affirmed."

Maverick Musser, by his next friends, Mischelle Musser and Michael Musser v. Daniel A. Roby, David J. Stach and Roby & Hood Law Firm (NFP) - "Maverick Musser, by his parents and next friends, Mischelle and Michael Musser (the Mussers), filed a legal malpractice action against Daniel A. Roby, David J. Stach, and Roby & Hood Law Firm (collectively referred to as the Law Firm). The Mussers based their claim, in relevant part, upon the Law Firm’s failure to properly disclose expert medical witnesses in a federal malpractice suit, which resulted in the exclusion of said expert testimony and the grant of summary judgment against the Mussers. In the instant legal malpractice action, the trial court granted summary judgment in favor of the Law Firm on the basis of proximate cause. On appeal, the Mussers present the following restated and consolidated issue for review: Did the trial court properly enter summary judgment in favor of the Law Firm? We affirm."

Judith Dallman v. Brent R. McIntosh, M.D. (NFP) - "Judith Dallman appeals the trial court’s grant of summary judgment to Brent R. McIntosh, M.D., on her medical malpractice claim. Dallman raises one issue, which we restate as whether the trial court erred by granting Dr. McIntosh’s motion for summary judgment. Dr. McIntosh raises one issue on cross appeal, which we restate as whether the trial court erred by denying his motion to strike Dallman’s untimely summary judgment designation. We affirm."

Grubb Excavating Inc. v. Winterwood Properties, James M. Landwerlen, et al (NFP) - "Appellant-plaintiff Don Grubb Excavating, Inc. (DGE), appeals the trial court’s order granting partial summary judgment in favor of appellee-defendants Winterwood Properties, LLC (Winterwood), James M. Landwerlen, Irving Materials, Inc., Wickes Lumber, Inc., and Bloomfield State Bank (collectively, the appellees) on DGE’s complaint against the appellees for, among other things, breach of contract and foreclosure on a mechanic’s lien. DGE argues that the trial court erroneously found that it waived its right to pursue these claims and that a promissory note executed by a nonparty adequately compensates DGE. Finding a genuine issue of material fact regarding DGE’s installation of a septic system and that the promissory note is irrelevant to determining the appellees’ potential liability for DGE’s services on the septic system project, and finding no other error, we affirm in part, reverse in part, and remand with instructions."

David Warpenburg v. Cathy Warpenburg (NFP) - "In this dissolution action, appellant-respondent David Warpenburg appeals the trial court’s denial of his request that his former wife—appellee-petitioner Cathy Warpenburg—pay spousal maintenance. David also contends that the trial court abused its discretion in effecting an equal division of the marital property. Finding no error, we affirm the judgment of the trial court."

In Daniel E. Novak v. Credit Bureau Collection Service (NFP), a 6-page opinion, Senior Judge Garrard writes:

In entering its judgment the [trial] court made several findings. It determined that Novak has impliedly consented to the presentation to the court of Novak’s liability under equity as well as under law. The court found that “[t]he Defendant was brought to the hospital by ambulance after suffering a brain aneurysm. He was unconscious; it was not possible to secure his consent to treatment. Treatment was necessary to prevent serious injury, if not death. Upon regaining consciousness, Defendant did not voice objection to the treatment he received, did not attempt to leave the hospital and actively participated in applications for financial assistance with the cost of treatment. Under these facts, the Plaintiff is entitled to recovery of a reasonable fee for the services provided. The only evidence as to a reasonable fee is that presented by Plaintiff.” Accordingly, the court entered judgment for the plaintiff. * * *

In Kovak’s case, as in Galloway, a benefit was rendered to Kovak to prevent serious bodily injury or death under circumstances where equity demands compensation in order to prevent unjust enrichment. The trial court correctly so found.

NFP criminal opinions today (10):

Ronald McCaslin v. State of Indiana (NFP)

Maurice Thomas v. State of Indiana (NFP)

Carlton E. Horne v. State of Indiana (NFP)

Eduardo Orozco v. State of Indiana (NFP)

James E. Howard v. State of Indiana (NFP)

Gary Asher v. State of Indiana (NFP)

John Autrey v. State of Indiana (NFP)

Lawrence Hall v. State of Indiana (NFP)

Terrence L. Wise v. State of Indiana (NFP)

D.T. v. State of Indiana (NFP)

Posted by Marcia Oddi on December 13, 2007 02:09 PM
Posted to Ind. App.Ct. Decisions