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Thursday, June 05, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP) [Updated, now 15 NFP]

For publication opinions today (2):

In Cherokee Air v. Burlington Insurance Co. , a 10-page opinion, Chief Judge Baker writes:

Appellant-defendant Cherokee Air Products, Inc., f/k/a Tippmann Pneumatics, Inc., L.P. (Cherokee), appeals the trial court’s order setting aside its previous entry of default against appellee-plaintiff Burlington Insurance Company (Burlington). Cherokee argues that the trial court erred by setting aside the entry of default against Burlington. Finding no error, we affirm. * * *

[I]t has already been fully and finally decided that PMI is not liable on the precise facts and claims that Cherokee is asserting against Burlington. Thus, to hold Burlington liable under these circumstances would be absurd, inequitable, and unjust. Although we do not celebrate Burlington’s inexplicable failure to respond to Cherokee’s counterclaim, given these facts and our general predilection to decide cases on their merits, we find that the trial court did not abuse its discretion by setting aside the entry of default against Burlington and entering final judgment in its favor. The judgment of the trial court is affirmed.

In Homer Barger v. Tammy Barger, a 7-page opinion, Judge Barnes writes:
Homer M. Barger, Jr., (“Husband”) appeals from the trial court’s issuance of a protective order against him and for the protection of Tammy Sue Barger (“Wife”). We reverse.

Issue. Whether the trial court’s grant of the protective order was proper. * * *

Husband correctly asserts that Wife’s testimony contained multiple or double hearsay. “Double hearsay” is “a hearsay statement that contains further hearsay statements within it, none of which is admissible unless exceptions to the rule against hearsay can be applied to each level.” Black’s Law Dictionary 739 (8th ed. 1999). Indiana Evidence Rule 805 states that hearsay within hearsay “is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule . . . .”

Wife’s double hearsay-laden testimony at the hearing did not bear sufficient indicia of reliability to warrant its admission into evidence. Thus, there is considerable reason to question the reliability of her statements. * * *

The absence of corroborating witnesses is further compounded by Wife’s refusal to testify to any alleged acts of violence toward her by Husband. * * *

Based upon the foregoing, Husband has proven prima facie error. The trial court erred when it granted Wife’s petition for an order of protection after finding that Wife’s double hearsay-laden statements were admissible hearsay. Given the dearth of corroborating witness testimony and Wife’s evasiveness, we find that the record simply does not support a finding that Husband threatened to kill Wife. Thus, we must reverse the trial court’s order granting the order of protection, and find that it committed an abuse of discretion in so doing. Reversed.

NFP civil opinions today (was 4, now 5):

[Note: This opinion was posted after the regular posting; as the ILB has stressed before, there is always the danger that additional opinions added later in the day with no designation as such will not be spotted.] In Amanda Thompson v. Samuel Strange (NFP), a 9-page opinion, CJ Baker writes:

Appellant-respondent Amanda Thompson appeals the trial court’s judgment awarding custody of the parties’ minor daughter, P.H.S., to appellee-petitioner Samuel Strange. Specifically, Thompson argues that because Indiana Code section 16-37-2-2.1(g) provides that she is the sole legal and physical custodian of P.H.S. because she and Strange were never married to each other, the evidence failed to demonstrate that the award of custody to Strange was appropriate. Finding that the trial court properly awarded custody of P.H.S. to Strange, we affirm.
Double J Ranch v. Mark Wiley Trust (NFP) - "Double J Ranch, L.L.C. (“Double J”) appeals from the trial court’s order setting aside a 2004 tax sale and denying Double J’s verified petition for tax deed. * * *

"The bottom line is that the Auditor’s office placed the surplus from the tax sales into the tax sale surplus fund contrary to the Indiana Code. That noncompliance with the applicable statutes invalidates the tax sale. See MJ Acquisitions, Inc. v. Tec Investments, 863 N.E.2d 379, 382-83 (Ind. Ct. App. 2007) (holding tax sale process requires material compliance with each step of the governing statutes). The trial court did not err when it set aside the tax sale and denied Double J’s petition for tax deed. Affirmed."

Term. of the Parent-Child Rel. of D.D.S., and D.T. (Mother) v. Greene Co. Dept. of Child Services (NFP) - "Given the ample evidence that the conditions resulting in D.D.S.’s removal will not be remedied, we find no error in terminating Mother’s parental rights. Affirmed."

Greg Green v. Jenny J. Green (NFP) - "In sum, the trial court expressly found evidence of $25,000 in debt owed to Lawyers Excavating, Inc., and it also expressly found that Greg owed Jenny seventy percent of her attorney’s fees. Further, neither of the parties disputed the existence or value of Jenny’s 401(k) account. However, the debt to Lawyer’s Excavating, Jenny’s 401(k) account, and Greg’s payment of Jenny’s attorney’s fees are not incorporated into the trial court’s Exhibit A, in which the court valuated and distributed the marital assets. Accordingly, we reverse the trial court’s judgment pertaining only to those three issues and remand to the trial court for clarification. In all other respects, we affirm the judgment of the trial court."

In Marriage of Kimberlee (Harstad) Baldwin v. Larry Harstad, Jr. (NFP) - "We conclude that the trial court did not abuse its discretion when it denied Mother’s motion to modify custody. We also conclude that the trial court did not abuse its discretion when it permitted unsupervised parenting time pursuant to Indiana Parenting Time Guidelines. Affirmed."

NFP criminal opinions today (10):

Danny W. Brooks v. State of Indiana (NFP)

John David Haddix v. State of Indiana (NFP)

David T.J. Tuggle v. State of Indiana (NFP)

Angel Aleman Gonzalez v. State of Indiana (NFP)

Steven Mayberry v. State of Indiana (NFP)

Ronnie L. West II v. State of Indiana (NFP)

Isaiah N. Eskew v. State of Indiana (NFP)

Joseph Sellers v. State of Indiana (NFP)

Patrick Davis v. State of Indiana (NFP)

Donielle Sherley v. State of Indiana (NFP)

Posted by Marcia Oddi on June 5, 2008 12:08 PM
Posted to Ind. App.Ct. Decisions