The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 31 NFP)

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Thursday, May 15, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 31 NFP)

For publication opinions today (3):

Kerry L. Meredith v. State of Indiana - "The State has filed a petition for rehearing asking that we reconsider our holding that the trial court abused its discretion when it admitted into evidence cocaine found in the car of Kerry Meredith. See Meredith v. State, 878 N.E.2d 453 (Ind. Ct. App. 2007) (“Meredith I”). In particular, the State asserts that the cocaine was admissible because it was obtained pursuant to a legitimate traffic stop for an improperly displayed temporary vehicle tag. We grant the State’s petition for the sole purpose of clarifying that, while the initial traffic stop was legitimate, the investigating officer’s probable cause or reasonable suspicion to detain Meredith had expired well before the discovery of cocaine in Meredith’s vehicle. * * * The State’s petition for rehearing is granted, and our opinion in Meredith I is clarified as stated above. In all other respects, we affirm our prior opinion."

In Michael Childs v. State of Indiana , a 6-page opinion, Judge Sharpnack writes:

Michael Childs appeals his conviction for sexual battery as a class D felony.1 Childs raises two issues, which we revise and restate as whether the trial court erred by entering judgment of conviction for sexual battery. We reverse. * * *

On appeal, the State concedes that sexual battery as a class D felony is not a lesser included offense of child molesting. The State concedes that Childs’s conviction for sexual battery must be vacated. The State argues, however, that we should remand with instructions to enter judgment of conviction for child molesting as a class C felony. In support of this argument, the State relies upon Anderson v. State, 674 N.E.2d 184 (Ind. Ct. App. 1996). * * *

We conclude that the trial court erred by entering judgment of conviction for sexual battery as a class D felony, and we vacate that conviction. Moreover, due to double jeopardy, Childs cannot be retried on the child molesting as a class B felony or child molesting as a class C felony charges. See, e.g., Anderson, 674 N.E.2d at 188.

For the foregoing reasons, we reverse Childs’s conviction for sexual battery as a class D felony. Reversed.

James D. Massey and Margaret E. Massey v. Conseco Services, LLC - "James D. Massey has petitioned for rehearing of our opinion in Massey v. Conseco Services, L.L.C., 879 N.E.2d 605 (Ind. Ct. App. 2008). We grant his petition solely to address whether we erred by dismissing his counterclaim arising under federal securities law. We reaffirm our original decision."

NFP civil opinions today (11):

In the Matter of O.S., J. Elizabeth S. v. Clinton Co. Dept. of Child Services (NFP) - "For all of these reasons, we conclude that the evidence is sufficient to support the court’s CHINS determination."

Jack Gray Transport v. Porter County Assessor (NFP) - "Appellant-petitioner Jack Gray Transport, Inc. (Jack Gray) appeals the trial court’s dismissal of its action for mandate filed against appellee-respondent Porter County Assessor (Assessor) for lack of subject matter jurisdiction. Specifically, Jack Gray contends that the trial court erred in determining that the Tax Court has exclusive jurisdiction over this case because it involves property tax exemptions. Concluding that the trial court properly granted the motion to dismiss, we affirm."

Michelle & Edward Rau, et al v. Homeowners of Mallards Landing Inc. (NFP) - "An issue raised for the first time on appeal, even in the summary judgment context, is waived. * * * [T]he Raus have waived their challenge to the summary judgment decision by arguing grounds not raised to the trial court. No amount of clarification by the trial court would change that result. * * * Based on the foregoing, we conclude that, by raising an argument that was not presented to the trial court, the Raus have waived any challenge they may have had to the trial court’s grant of HOML’s motion for summary judgment."

Bobby Frame v. Diana L. Tharp, Gregory Early (NFP) - "Given the discretion afforded trial courts to alter the time limitations for defendants to advance a nonparty defense provided by Indiana Code section 34-51-2-16, we cannot say that the trial court erred when it permitted Tharp and Early to argue that Michael Kaye Industries was liable for all or some of Frame’s injuries to the jury.

"For the foregoing reasons, we conclude that the trial court did not err when it permitted the jury to consider Michael Kaye Industries’ liability as a nonparty for comparative fault purposes. Affirmed."

Term. of Parent-Child Rel. of C.G. & L.C.; and D.P. v. State of Indiana (NFP) - "Thus, the trial court need not wait until a child is irreversibly harmed such that the child’s physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Based upon the foregoing, we do not conclude that the trial court’s judgment was clearly erroneous. Affirmed."

William Tarkington v. Molly Tarkington (NFP) - "Appellant-respondent William S. Tarkington appeals the protective order entered in favor of appellee-petitioner Molly S. Tarkington, William’s ex-wife. William argues that the trial court did not have jurisdiction to enter the order and that there is insufficient evidence supporting the trial court’s decision. Finding no error, we affirm."

Term. of Parent-Child Rel. of O.V., Tonya Roach Veenstra and Jamie Veenstra v. Noble co. Dept. of Child Services (NFP) - "Appellant-respondent Tonya Roach-Veenstra appeals the termination of her parental relationship to her daughter, O.V. Veenstra argues that she was denied due process of law because she allegedly received the ineffective assistance of counsel during the termination proceedings. Finding no error, we affirm."

Donald L . Franks v. Andre Trust (NFP) - "Appellant-defendant Donald L. Franks appeals the trial court’s judgment of forfeiture in favor of appellee-plaintiff Andre Trust (the Trust). Donald claims that the judgment regarding certain real property that he and his former spouse, Mary, had purchased from the Trust, was erroneous. More specifically, Donald contends that the trial court neglected to make several necessary findings and challenges a number of other findings regarding the payment of consideration, utility bills, and taxes on the property. Donald further maintains that the Trust’s action should have been barred under the doctrine of laches, but claims that even if the remedy of forfeiture was appropriate, the trial court erred in also ordering him to pay an additional amount for damages. Concluding that the remedy of forfeiture was appropriate, and finding no other error, we affirm the judgment of the trial court."

Gary B. Plunkitt v. U.S. Bank National Association (NFP) - "Gary Plunkitt appeals the trial court’s order granting a notice of dismissal filed by US Bank National Association (“US Bank”). Plunkitt raises three issues, which we revise and restate as whether the trial court abused its discretion by granting US Bank’s notice of dismissal without prejudice. We reverse and remand."

Donald Marshall v. Walter Martin (NFP) - "Marshall was present at his parole revocation hearing, received notices of the dates of the hearings, admitted to the offense/violation, and received notice of the Parole Board’s decision. Therefore, Marshall’s petition for writ of habeas corpus was properly denied.

"Marshall waived his argument about receipt of the written statements by failing to request the documents at subsequent Parole Board hearings. Marshall has failed to utilize the appropriate post-conviction process to seek appellate review of the revocation of his parole. For all of those reasons, the trial court’s decision is affirmed."

Koehring & Sons, Inc. v. Starks Mechanical, Inc. (NFP) - "Trial Rule 75(A)(4) establishes preferred venue in “the county where . . . the principal office of a defendant organization is located . . . .” In this case, defendant Koehring’s principal office is located in Marion County. According to T.R. 75(A)(4), preferred venue is therefore in Marion County, and Koehring has established prima facie error in the trial court’s denial of its motion to transfer the case to Marion County as the preferred venue. Reversed."

NFP criminal opinions today (20):

Wendell Pegues v. State of Indiana (NFP)

Jason A. Perry v. State of Indiana (NFP)

Charles Payton v. State of Indiana (NFP)

Marvin Clark v. State of Indiana (NFP)

Bradley Baldwin v. State of Indiana (NFP)

Lord Drezden v. State of Indiana (NFP)

Johnny P. Ford v. State of Indiana (NFP)

Chad Hester v. State of Indiana (NFP)

Derek Core v. State of Indiana (NFP)

David Burks-Bey v. State of Indiana (NFP)

Charles R. Barnett, Jr. v. State of Indiana (NFP)