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Friday, August 15, 2008

Ind. Decisions - Court of Appeals issues 7 today (and 8 NFP)

For publication opinions today (7):

In Ronald J. Solnosky, Gary L. Miller, and Medical Marketing Resources SE, Inc. v. Karen R. Goodwell, Derrick H. Wilson, et al, a 19-page opinion, Judge Crone writes:

Ronald J. Solnosky appeals the trial court’s reduction of the jury’s $1,491,886 verdict in favor of Solnosky and against Karen R. Goodwell, Derrick H. Wilson, and Mattox, Mattox & Wilson (“the Law Firm”) (collectively, “the Lawyers”) on his legal malpractice claim. Solnosky, Gary L. Miller, and Medical Marketing Resources SE, Inc. (“Medical Marketing”) (collectively, “the Clients”), appeal the trial court’s grant of the Law Firm’s motion for judgment on the evidence on its counterclaim against the Clients for unpaid attorney’s fees. The Lawyers cross-appeal the trial court’s denial of their motion for judgment on the evidence on Solnosky’s malpractice claim. We affirm the denial of the Lawyers’ motion for judgment on the evidence, reverse as to the remaining issues, and remand with instructions to reinstate the jury’s verdict.
In Roger J. Schlatter, Jr. v. State of Indiana , a 9-page opinion, Judge Mathias writes:
Roger J. Schlatter, Jr., (“Schlatter”) pleaded guilty in DeKalb Superior Court to Class B felony sexual misconduct with a minor. Schlatter filed a petition for post-conviction relief, which the post-conviction court denied. Schlatter now appeals and claims that the post-conviction court erred in concluding that Schlatter’s trial counsel was not ineffective for failing to present the defense of automatism. Concluding that the defense of automatism was not available to Schlatter due to his voluntary intoxication, we affirm. * * *

Schlatter claims that his trial counsel rendered ineffective assistance by failing to present the defense of automatism. The State argues that the defense of automatism was unavailable to Schlatter in light of his voluntary intoxication. The issue before us is therefore a question of law; if the defense of automatism was not available to Schlatter, then his trial counsel could not have been ineffective for failing to present it. * * *

[A]n automatism defense would not have been available to Schlatter. The allegedly overlooked defense of automatism is a claim the defendant did not act voluntarily as required by Indiana Code section 35-41-2-1. See McClain, 678 N.E.2d at 107. According to Sanchez, however, Schlatter acted voluntarily as required by Indiana Code 35-41-2-1 when he voluntarily became intoxicated. See Sanchez, 749 N.E.2d at 517. Therefore, because Schlatter acted voluntarily in becoming intoxicated, he cannot now claim that his actions which resulted from his intoxication were involuntary, and because he cannot claim that his actions were involuntary, the automatism defense is unavailable to him.

Scott A. Scales v. Diane K. Scales - Affirmed. "While he argues that he did not have access to Wife’s retirement account statement until the final hearing, there is no indication that he ever filed a motion to compel discovery of that statement or made a request for production of it from Wife’s plan administrator. In fact, the record shows that Husband himself failed to comply with Wife’s requests for discovery. The trial court imposed sanctions for his failure to comply with discovery and prohibited him from presenting certain exhibits at the hearing that should have been provided via discovery prior to that date. We will not now allow him to circumvent the trial rules by claiming that he could not have discovered these retirement account figures before the final hearing. The trial court acted within its discretion in denying Husband’s motion to correct error."

In Samuel M. Baumgartner, Jr. v. State of Indiana , a 14-page opinion, Judge Mathias writes:

Baumgartner waived his rights under Criminal Rule 4(C) by failing to object to the trial court setting a trial date which was outside the one-year time limit provided by that rule. Indiana Code section 35-42-4-5 is not unconstitutionally vague, and the evidence is sufficient to support Baumgartner’s conviction thereunder for performing sexual conduct in the presence of a minor.
In Craig E. Teague v. State of Indiana , a 14-page opinion, Judge Friedlander writes:
[W]e find the following restated issue dispositive: Did the trial court err by permitting the State to use Teague’s prior silence to impeach his exculpatory story told for the first time at trial? Because the issue will almost certainly arise on retrial, we also address the propriety of the trash searches. We reverse and remand. * * *

We initially observe that the State’s entire argument with respect to this issue is based on the premise that the State’s cross-examination questions “were directed at [Teague’s] prearrest silence.” We acknowledge that it is permissible to impeach a defendant at trial based upon his pre-arrest, pre-Miranda silence. See Jenkins v. Anderson, 447 U.S. 231 (1980). Contrary to the State’s assertion on appeal, however, the challenged cross-examination testimony regarded Teague’s post-arrest silence, not his pre-arrest silence. [The Court ultimately concludes this is a Doyle violation and that it is not harmless error.] * * *

Here, approximately one or two weeks before the initial trash pull, Detective Early received information from a reliable source regarding cocaine dealing out of Teague’s residence. The informant, who received no incentive for providing information to police, specifically reported that she went to the residence on several occasions with another individual who purchased crack cocaine there. In light of the informant’s reliability and her indication of on-going drug sales at Teague’s residence, we find that the totality of the circumstances gave rise to an articulable and individualized reasonable suspicion of criminal activity, justifying Detective Early’s search of the trash from the residence. See id. As a result, we conclude that the evidence seized pursuant to the trash pulls and the subsequent search warrant was properly admitted at trial.

In Bruce Herdt, Louis Evans and Charlie Milburn v. City of Jeffersonville, Indiana and Common Council for Jeffersonville, Indiana , an 11-page opinion, Judge Brown writes:
The Remonstrators raise three issues, which we revise and restate as whether the trial court erred when it dismissed their complaint for lack of jurisdiction. We affirm. * * *

The Remonstrators failed to comply with the statutory requirement that the written remonstrance signed by the landowners be filed within ninety days after publication of the annexation ordinance. Because Ind. Code § 36-4-3-11 precludes the filing of an amended complaint to add the necessary signatures after the limitations period, the Remonstrators were unable to cure the procedural defect. The trial court was therefore unable to exercise its subject matter jurisdiction over the petition for remonstrance, and we conclude that it did not err in granting the City’s motion to dismiss for lack of jurisdiction. * * *

The Remonstrators also appear to argue that their complaint raises a claim for declaratory judgment that the annexation ordinance is invalid because of certain due process violations committed by the City. However, the Remonstrators did not file an action for declaratory judgment, and we fail to find any language in the remonstrance that could be construed as a prayer for declaratory relief. Likewise, their proposed amended complaint did not present a claim for declaratory judgment.

In James R. Webb v. Nancy J. (Webb) Schleutker, a 19-page opinion, Judge Vaidik writes:
James R. Webb (“Husband”) appeals the trial court’s treatment of the marital property in his dissolution from his wife, Nancy J. (Webb) Schleutker (“Wife”). Wife cross-appeals. The trial court did not abuse its discretion in including soon-to-be harvested crops in the marital pot and, when assigning a value to the crops, subtracting the value of the Husband’s labor in planting, harvesting, and otherwise caring for the crops. Further, it was not an abuse of discretion for the trial court to include in the marital pot crop subsidy payments from the United States Department of Agriculture (“USDA”) earned before and during the period of the parties’ separation, but paid during the period of the parties’ separation. Finding no other error, we affirm.
NFP civil opinions today (2):In Ronald R. Mote and Carrie J. Mote v. Jess A. Wilkinson and Tracy E. Wilkinson (NFP), a 9-page opinion, Judge Kirsch writes:
Ronald R. Mote and Carrie J. Mote (the “Motes”) appeal the trial court’s judgment in favor of Jess A. Wilkinson and Tracy E. Wilkinson (the “Wilkinsons”) on the Wilkinsons’ complaint alleging fraud in the sale of the Motes’ home. The Motes raise several issues, of which we find the following dispositive: whether the trial court erred when it found that the Motes committed fraud by making a material misrepresentation as to the condition of the septic system, which was made with knowledge or reckless ignorance of its falsity. We vacate and remand. * * *

Generally, a seller is not bound to disclose any material facts unless a relationship exists for which the law imposes a duty of disclosure. Id. A duty to disclose has been found “where the buyer makes inquiries about a condition on, the qualities of, or the characteristics of the property.” Id. When a buyer makes such inquiries, “it becomes incumbent upon the seller to fully declare any and all problems associated with the subject of the inquiry.”

Here, in its findings and conclusions, the trial court made the following conclusion: “The court does find credible [Mr.] Mote’s testimony that he reasonably believed the system’s problems had been fixed because of . . . Cole’s observations or [Mr.] Mote’s own efforts to repair the system.” Appellants’ App. at 18. This conclusion is not consistent with many of the trial court’s other conclusions or its judgment that the Motes committed fraud because based on this conclusion, if Mr. Mote reasonably believed that the septic system’s problems had been fixed, any misrepresentations made by the Motes could not have been made with knowledge or reckless ignorance of their falsity. Because of this inconsistency, we vacate the trial court’s judgment and remand for clarification to the trial court to either enter new findings of fact and conclusions consistent with its original judgment or to enter a new judgment based upon the original findings of fact and conclusions.

In the Matter of S.S., Amber S. v. Hamilton Co. Dept. of Child Services (NFP) - "Concluding that the trial court’s judgment terminating Mother’s parental rights is supported by clear and convincing evidence, we affirm."

NFP criminal opinions today (6):

Darryl Jackson v. State of Indiana (NFP)

Maurice L. Brownlee v. State of Indiana (NFP)

Eric Wayne Wilson v. State of Indiana (NFP)

C.M.E. v. State of Indiana (NFP)

Karim Jabr Al Azawi v. State of Indiana (NFP)

Randall Pike v. State of Indiana (NFP)

Posted by Marcia Oddi on August 15, 2008 12:40 PM
Posted to Ind. App.Ct. Decisions