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Wednesday, August 27, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Grover Fitzgerald v. U.S. Steel, a 13-page opinion, Judge Vaidik writes:

Grover Fitzgerald appeals from the Worker’s Compensation Board’s (“Board”) dismissal of his application for adjustment of claim. Concluding that Fitzgerald’s application is time-barred under Indiana Code § 22-3-3-27 (1998), that the reimbursed wages he received from U.S. Steel (“USS”) do not constitute “compensation,” that the date of maximum medical improvement or the date his permanent partial impairment rating was issued is not the starting date for calculating the statute of limitations under the facts of this case, that USS did not make fraudulent misrepresentations to Fitzgerald, and that USS did not breach any legal duties owed to him, we affirm.
In Kempf Contracting and Design, Inc. v. Cynthia Holland-Tucker, an 11-page opinion, Judge Kirsch writes:
Kempf Contracting and Design, Inc. (“Kempf”) appeals the judgment, after a jury trial, in favor of Cynthia Holland-Tucker (“Tucker”) in her action against Kempf for negligence. Kempf raises several issues, of which we find the following dispositive: whether the trial court erred when it entered judgment on a second verdict reached by the jury, where, after an initial verdict was reached, the trial court reconvened the jury, gave them new instructions and verdict forms, and allowed the jury to deliberate a second time. We reverse and remand. * * *

Both parties argue that the trial court erred when it entered judgment on the second verdict by the jury after it realized that the jury had been given an erroneous jury instruction and verdict form and then allowed the jury to re-deliberate after they received a revised jury instruction and verdict form. Kempf contends that it is entitled to a new trial because it believed that the jury did not follow the instruction given by the trial court and issued a verdict that was contrary to the instruction and law of the case. Tucker claims that the original jury verdict pronounced in July 20, 2007 was facially sound and accurate, that the trial court erred when it set aside the original judgment, and that the judgment originally entered should be reinstated. * * *

“From the moment of its official discharge the jury is released from any further obligations or duties in the case” and “may not at any time thereafter be reassembled even on the orders of the judge for the purpose of correcting errors of substance in the verdict or for further deliberation of its verdict.” West v. State, 228 Ind. 431, 438, 92 N.E.2d 852, 855 (1950). When a jury is officially discharged, it becomes functus officio as a jury in that particular case, and anything it does thereafter, even by order of the trial court, is null and void. Id. Based on this, the trial court incorrectly entered judgment after allowing the jury to re-deliberate when it had previously been discharged by the trial court. * * *

Because the jury had ceased to exist as an entity to determine the case when it was discharged, it was not able to render a second verdict. * * *

Therefore, the trial court improperly entered judgment on the jury’s second verdict. We vacate the judgment and remand to the trial court with instructions to declare a mistrial and to order a new trial.

Because it is likely to be raised on retrial, we address the issue of whether the expert testimony was properly admitted. * * *

[W]e conclude that Tucker failed to meet her burden of proving that Tierney’s methodology was scientifically reliable under Indiana Evidence Rule 702(b), and the trial court abused its discretion when it allowed Tierney to testify. Reversed and remanded with instructions.

In Gina Williams v. State of Indiana , an 11-page opinion, Judge Najam writes:
Gina Williams appeals her convictions for Forgery, a Class C felony, and Attempted Theft, as a Class D felony, following a bench trial. Williams raises a single issue for our review, which we restate as the following three issues: 1. Whether Williams’ conviction for attempted theft is barred by Indiana’s prohibitions against double jeopardy. 2. Whether the trial court’s denial of Williams’ motion for involuntary dismissal, pursuant to Indiana Trial Rule 41(B), was clearly erroneous. 3. Whether the State presented sufficient evidence to support Williams’ convictions. We affirm in part and reverse and remand in part. * * *

Williams’ conviction for forgery is supported by sufficient evidence and affirmed. However, because the same evidence was used to convict Williams of both forgery and attempted theft, as a Class D felony, her conviction for attempted theft must be reversed on double jeopardy grounds. Hence, we remand that issue to the trial court with instructions to vacate Williams’ attempted theft conviction.

In Byron Breaston v. State of Indiana , a 20-page opinion, Judge Bradford writes:
Appellant-Defendant Byron Breaston appeals his conviction, following a jury trial, for Theft,1 a Class D felony, and the finding that he was a habitual offender. Breaston raises numerous issues on appeal, which we restate as: (1) whether the trial court erred in denying Breaston‟s request for a mistrial; (2) whether the evidence was sufficient to support the finding that he was a habitual offender; (3) whether the trial court erred in allowing the State to amend the habitual offender enhancement information; (4) whether the sentences resulting from separate findings that one is a habitual offender in separate criminal proceedings may be served consecutively to one another; (5) whether the trial court erred in admitting certain evidence at trial; and (6) whether the trial court erred in denying Breaston‟s motion to dismiss. We affirm.
NFP civil opinions today (2):

In Re: The Marriage of William D. Cronkhite, II v. Tammy Cronkhite (NFP) - "William Cronkhite appeals the trial court’s distribution of marital property in the dissolution of his marriage to Tammy Cronkhite. We affirm. * * *

"It is well settled that we will not consider an appellant’s assertion on appeal when he or she fails to present cogent argument supported by authority and references to the record as required by the rules. Id. If we were to address such arguments, we would be forced to abdicate our role as an impartial tribunal and would instead become an advocate for one of the parties, which we cannot do.

"Moreover, William cannot take refuge in the sanctuary of his amateur status. As we have noted many times before, a litigant who chooses to proceed pro se will be held to the same rules of procedure as trained legal counsel and must be prepared to accept the consequences of his or her action. Accordingly, William’s argument is waived for lack of cogent argument.

Conclusion. Because of the inadequacy of William’s brief, we cannot address the merits of his claim. The issues raised on appeal are waived. We affirm."

Carolyn S. and Richard Kane v. Wibbeler Distributors, Inc. and Jerry Wibbeler (NFP) - "Carolyn S. Kane (“Carolyn”) and her husband, Richard Kane (collectively, “the Kanes”), appeal the trial court’s denial of their motion to correct error after the jury returned a verdict finding that Jerry Wibbeler (“Wibbeler”) was not liable for the damages they allegedly sustained after a van negligently driven by Wibbeler struck the truck driven by Carolyn. We affirm."

NFP criminal opinions today (7):

Antonio Sims v. State of Indiana (NFP)

Willie Anderson v. State of Indiana (NFP)

Martin Estrada a/k/a Martin Pineada Tovar v. State of Indiana (NFP)

Tammy Berry v. State of Indiana (NFP)

Jonathan L. McBride v. State of Indiana (NFP)

Autuan M. Leanyear v. State of Indiana (NFP)

Charles W. Chorpenning v. State of Indiana (NFP)

Posted by Marcia Oddi on August 27, 2008 01:04 PM
Posted to Ind. App.Ct. Decisions