The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

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Friday, May 09, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

Yesterday the Court of Appeals posted 29 opinions, today there are 24 more. Get out your reading glasses!

For publication opinions today (5):

In Belden, Inc., and Belden Wire & Cable v. American Electronic Components, Inc., a 22-page opinion, Judge Barnes writes:

Belden, Inc., and Belden Wire & Cable Company (collectively “Belden”) appeal the trial court’s granting of partial summary judgment in favor of American Electronic Components, Inc. (“AEC”). We affirm.

Belden raises four issues, which we consolidate and restate as: I. whether the limitation on damages on the back of Belden’s order acknowledgment applies to the parties’ contract; and II. whether Belden created an express warranty based on its prior assertions to AEC. * * *

[Re "I. Battle of the Forms"] In sum, we agree with the trial court’s conclusion that Section 2-207(3) applies to this case and that Section 2-207(3), not Section 2-207(2), controls the terms of the parties’ agreement. We also conclude that Section 1-205 does not establish a course of dealing in which AEC agreed to the limitation on damages. The trial court properly granted summary judgment in favor of AEC as to the issue of the applicability of Belden’s limitation on damages. * * *

[Re "II. Express Warranty"] Irrespective of whether the course of dealing established that AEC assented to Belden’s proposed limitation on damages, the parties’ course of dealing established that Belden made an express warranty regarding its compliance with the quality control standards. The limitation on damages and the express warranty are unrelated issues—there is no correlation between the two. * * *

[Conclusion] Belden’s limitation on damages is not a term of the parties’ contract and, by complying with AEC’s quality control program, Belden expressly warranted its compliance with AEC’s quality control program, which included the use of Quantum insulation. The trial court properly granted AEC’s partial motion for summary judgment and denied Belden’s partial motion for summary judgment. We affirm.

Paul Quiroz v. State of Indiana - Interesting arguments, including "Quiroz argues that because, at the time he pled guilty, the issue of whether enhanced consecutive sentences could be imposed was uncertain, the rule of lenity should be applied to his sentence," and "In his brief, Quiroz states that he “simply argues that given the instability in the law concerning sentencing, both on the federal and state level, that begun with Apprendi in 2000 and continues today, he should have the benefit of the Court of Appeals holding in Robertson.” However, sentencing affirmed.

In State of Indiana v. Larry Ray , a 9-page opinion, Judge Darden writes:

Issue. Whether the trial court erred in finding that pursuant to Indiana’s Implied Consent Law, in order to effect the suspension of driving privileges for a refusal to consent to a chemical test for intoxication, the person must have been warned of that consequence after he has refused to submit to such a test. * * *

As indicated above, Deputy Campbell advised Ray three separate times that his “refusal to submit to a chemical test will result in a suspension of your driving privileges for one year.” In fact, Ray testified that Campbell had read the warning to him “multiple times.” There was no evidence that Ray did not understand the advisement and the consequence of his refusing a chemical test. We find that it would be a statutory interpretation producing an “absurd result[]” to require that despite the multiple warnings that expressly advised Ray that if he refused to consent to the chemical test, his license would be suspended, the statute nevertheless requires that he be so advised again after he refused the chemical test.

Deputy Campbell’s advisements to Ray complied with the statute, and the evidence established that Ray refused to consent to the chemical test offered. Therefore, the trial court erred as a matter of law when it held that these facts failed to satisfy the statutory requirements for suspension of Ray’s license. Reversed.

In Steven Kendall v. State of Indiana , a 23-page, 2-1 opinion (a 13-page opinion and a 10-page dissent), Judge Kirsch writes:

Steven Kendall appeals the post-conviction court’s denial of his Petition for Post-Conviction Relief. Kendall raises one issue on appeal, which we restate as follows: whether Kendall received ineffective assistance of appellate counsel. We affirm. * * *

When the Supreme Court decided Blakely on June 24, 2004, Kendall’s case was fully briefed in this court. Our opinion was handed down on August 3, 2004. Typical procedure for this court would have been to circulate the draft opinion for votes and comments on July 13, 2004—at least three weeks prior to the hand down date. Thus, appellate counsel would have had a maximum of twelve working days to read and analyze Blakely and seek to file an amended brief or twenty-seven working days to seek rehearing. * * *

Given the legal environment of the time, an environment marked by unpredictability and uncertainty on this court and elsewhere regarding the application of Blakely, we do not find that counsel was ineffective for failing to seek leave to file an amended brief or to raise the issue on rehearing or petition to transfer. We commend the post-conviction court for its clear and thoughtful entry. Affirmed.

MAY, J., concurs.
RILEY, J., dissents with separate opinion. [which begins] I respectfully dissent. First, our supreme court has established a liberal approach permitting defendants with Blakely claims, whose counsels otherwise would have waived those claims under prior Indiana legal precedent, opportunity to litigate their claims; and secondly, when Kendall’s counsel’s performance is compared to the diligent work of other attorneys representing clients similarly situated with arguable Blakely claims, it is apparent that Kendall’s counsel’s performance fell below prevailing professional norms. I would conclude that fairness requires we find Kendall’s appellate counsel ineffective in this situation.

[Note: the opinion includes a number of interesting footnotes.]

Datwone B. Fry v. State of Indiana - Affirmed. Interesting comprehensive discussion of admission of cell phone records, including whether they are self-authenticating.

NFP civil opinions today (5):

Janet Parfenoff v. Dawn Parfenoff (NFP) - "Parfenoff has failed to demonstrate prima facie error in the issuance of a protective order against her under the Indiana Civil Protection Order Act. Judgment affirmed."

In the Matter of the Paternity of G.K. (NFP) - "Shannon Gibson (“Mother”) appeals the trial court’s grant of a petition for visitation filed by Kevin Slicker. Mother raises two issues, which we revise and restate as: I. Whether the trial court erred by denying Mother’s motion to consolidate the paternity action with the adoption proceeding; and II. Whether the trial court abused its discretion by awarding stepparent visitation. We reverse and remand."

Jessica (Reishus) Anderson v. Devin A. Reishus (NFP) - "Jessica (Reishus) Anderson (Mother) appeals from the final dissolution decree that awarded sole custody of her minor child, D.R., to Devin Reishus (Father). On appeal, Mother presents the following issues for review: 1. Did the trial court err in failing to provide that Mother should have the right of first refusal to care for D.R. when Father was unavailable but D.R.’s paternal grandmother was available? 2. Did the trial court abuse its discretion in awarding Father sole custody of D.R.? We affirm."

Term. of Parental Rights of A.S., S.W., T.R., and Z.S., Angela Christian Shouse v. St. Joseph County Dept. of Child Services (NFP) - "Based on the record before us, sufficient evidence existed to support the trial court’s finding that there was a reasonable probability that the conditions that resulted in the Children’s removal would not be remedied. We reverse a termination of parental rights “only upon a showing of ‘clear error’ — that which leaves us with a definite and firm conviction that a mistake has been made.” Egly v. Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We find no such error here and, therefore, affirm the trial court. Affirmed.

Rodney Scott Monce v. Midwest Warehouse Corp. (NFP) - "Midwest did not discriminate against Monce because he was a person with a disability. Instead, Monce was terminated from the job of outside sale representative because he could not perform the essential duties of that position.

Like the trial court, we find no genuine issue of material fact to preclude entry of summary judgment in favor of Midwest on Monce’s claims that he was fired in violation of the ADA or in retaliation for filing a worker’s compensation claim. Affirmed."

NFP criminal opinions today (14):

State of Indiana v. Clint A. Jervis (NFP) - "Clint A. Jervis was charged with four counts, which, listed in order, were possession
of chemical reagents or precursors with intent to manufacture methamphetamine as a Class C felony, dealing in methamphetamine as a Class B felony, dealing in a sawed-off shotgun as a Class D felony, and dealing in methamphetamine as a Class A felony. He was convicted of Counts I and III after the trial court granted his motion for directed verdict on Counts II and IV. The State appeals, raising the following issue: whether the trial court erroneously granted Jervis’s motion for directed verdict on Counts II and IV. * * *

"Although we reverse the erroneous judgment on the evidence in favor of Jervis, he cannot be retried because an erroneous entry of acquittal by the trial court acts as an acquittal for double jeopardy purposes."

State of Indiana v. Renda Hall (NFP) - "The State petitions for rehearing following our decision in State v. Hall, No. 90A04-0709-CR-545 (Ind. Ct. App. Feb. 26, 2008), in which we affirmed the trial court’s granting of Hall’s motion to suppress. Although we grant the State’s petition for rehearing, we affirm our decision in all regards. We issue this opinion on rehearing simply to clarify our earlier decision. * * *

"Any evidence recovered from the car, including the paraphernalia and drugs, was found as a result of Hall’s illegal detention. Regardless of whether the evidence was discovered pursuant to a dog sniff or a search conducted by a police officer, it is fruit of the poisonous tree."

Harold E. Mummey v. State of Indiana (NFP)

Shannon Carlson v. State of Indiana (NFP)

David Ohm v.State of Indiana (NFP)

Todd E. Barlow v. State of Indiana (NFP)

Roger Davis v. State of Indiana (NFP)

Tyrone Rayford v. State of Indiana (NFP)

David R. Eggert v. State of Indiana (NFP)

Johnny White v. State of Indiana (NFP)

Aaron Giroud v. State of Indiana (NFP)

Dennis Eugene Scott v. State of Indiana (NFP)

Susie Fisher v. State of Indiana (NFP)

Barry Fitzgerald v. State of Indiana (NFP)