The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 7 today (and 12 NFP)

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Friday, May 16, 2008

Ind. Decisions - Court of Appeals issues 7 today (and 12 NFP)

For publication opinions today (7):

In Frederick W. Dennerline, III and Fillenwarth, Dennerline, Groth & Towe v. Jim Atterholt, Insurance Commissioner of the State of Indiana as Liquidator of Indiana Construction Industry Trust (ICIT), a 37-page opinion, first note footnote 1, which provides:

Because attorney Dennerline’s liability is coextensive with that of his law firm, we refer to them interchangeably as “Dennerline” in this opinion. See Ind. Code § 23-4-1-13 (“Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.”).

Judge Crone writes:

Frederick W. Dennerline, III, and his law firm, Fillenwarth, Dennerline, Groth & Towe (“Dennerline”), appeal from a general jury verdict and judgment in favor of Jim Atterholt, Insurance Commissioner of the State of Indiana (“the Commissioner”), on the Commissioner’s complaint against Dennerline for legal malpractice that resulted in the liquidation of the Indiana Construction Industry Trust (“ICIT”) and $17,991,043 in unpaid healthcare bills for ICIT’s beneficiaries. We affirm. * * *

MAY, J., concurs.
DARDEN, J., concurs and dissents with separate opinion. [which begins] I fully concur with the majority in all respects except for Issue VI; I respectfully dissent from their conclusion on that matter. Essentially, I am unable to support the approval of what I believe to be a windfall to a State agency.

For background on this case, start with this ILB entry from Sept. 3, 2006, headed "More on: $18 million Marion County jury verdict against local law firm."

Daisy Farm Limited Partnership v. Michael Morrolf and Jill Morrolf - "In summary, we conclude that the trial court did not err in concluding that riparian rights could be determined by extending the property lines of the lots into Lake Tippecanoe. We further conclude that the trial court erred in determining as matter of law that Daisy Farm and its predecessors were prohibited from acquiring a portion of Lot 13 on the basis that they, along with other Cripplegate owners and the general public, had the right to use northern portions of the lot as a thoroughfare and/or beach area. The trial court was required to determine whether Daisy Farm and/or its predecessors in title exerted sufficient control, intent, notice, and duration in addition to the permitted use under the easement. Finally, we conclude that the trial court erred in not considering whether Daisy Farm and its predecessors substantially complied with Ind. Code § 32-21-7-1.5 We reverse and remand for further proceedings consistent with this opinion, with instructions that the trial court make determinations based upon the evidence already presented. Reversed and remanded with instructions."

Eugene A. Terrell v. State of Indiana - "It is clear from the transcript and written order, then, that the trial court’s reason for revoking Terrell’s probation was based exclusively on Terrell’s admitted violations of his probation conditions. Accordingly, the court did not err in revoking Terrell’s probation."

Wesley H. Fueger v. Case Corporation, et al. - "The trial court erred by excluding the affidavit of Fueger’s expert. The opinions offered were not subject to a Daubert analysis, but were based upon specialized knowledge. Consequently, the trial court also erred by granting summary judgment in favor of Case because of the existence of a genuine issue of material fact. Reversed and remanded."

James H. Helton, Jr. v. State of Indiana - "Given Helton’s trial counsel’s misunderstanding of the law which applies to this available and dispositive defense, he could not have given Helton competent advice on whether to plead guilty, and his performance fell below an objective standard of reasonableness. And had trial counsel filed a motion to suppress, the trial court would have been compelled to grant that motion, and the State would have likely been obliged to dismiss the charges against Helton. The burden to prove “a reasonable probability of acquittal” in making an ineffective assistance of counsel claim after pleading guilty is an onerous one. See Segura, 749 N.E.2d at 503. It is rare that we reverse the denial of a petition for post-conviction relief on these grounds, but Helton has satisfied that burden here. Helton has satisfied both prongs set out in Strickland. The law is with Helton, and, thus, we reverse the post-conviction court’s order. Reversed."

Michael A. Hoose and Darlene S. Hoose v. William H. Doody & Judith A. Doody - "However, evidence specific to the shoreline is required to establish that the Hooses have the right to exclude other residents of the subdivision from building piers along the shoreline of the Disputed Area. The Doodys claimed that the Disputed Area was a dedicated park available to all residents, including access for placements of piers. Thus, while Mr. Hoose testified that his family first built a pier in 1952 and has maintained it to the present, such evidence is not relevant as to whether other residents were on notice that Hooses intended to exercise exclusive control of the shoreline. Accordingly, we conclude that the Hooses have not preserved their prescriptive easement claim by presenting an adverse possession argument to the trial court. Based on the foregoing, we affirm the trial court’s judgment. [There is a lengthy dissent.]

Matthew Forgey v. State of Indiana - "In sum, the trial court did not abuse its discretion by denying Forgey’s request to wear his Marine Corps uniform at trial, excluding statements relating to the primary victim’s former employment and alleged former drug use, or excluding the taped statement of the secondary victim recorded shortly after the conclusion of the ordeal. Furthermore, the trial court adequately considered the proposed sentencing factors and Forgey’s sentence was appropriate. The judgment of the trial court is affirmed."

NFP civil opinions today (1):

The Indiana State Board of Nursing v. Jerome August Cerny (NFP) - "The Indiana State Board of Nursing (“the Nursing Board”) appeals a trial court judgment declaring unlawful the Nursing Board’s summary suspension of Jerome August Cerny’s nursing license and awarding Cerny damages and attorney’s fees. We reverse.

"Issue. The dispositive issue is whether the trial court erred in concluding that the Nursing Board’s summary suspension of Cerny’s nursing license constituted an unlawful deprivation of his due process rights."

NFP criminal opinions today (11):

Joshua D. Burdine v. State of Indiana (NFP)

Stephen W. Schmidt v. State of Indiana (NFP)

Ayron Saylors v. State of Indiana (NFP)

Stacy Hart v. State of Indiana (NFP)

Demitrius Taylor v. State of Indiana (NFP)

Ryan Neal Simmons v. State of Indiana (NFP)

Kawanno Hughes v. State of Indiana (NFP)

Charles David Hunter v. State of Indiana (NFP)

Paul A. Lucas, III v. State of Indiana (NFP)

Robert Whitehead v. State of Indiana (NFP)

Steven Barlow v. State of Indiana (NFP)