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Monday, September 22, 2008

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

For publication opinions today (3):

In Midwest Biohazard Svcs. LLC v. Hugh H. Rodgers, et al. , an 8-page opinion, Judge Riley concludes:

Here, the trial court relied solely upon the dismissal of Biohazard’s claim seeking to foreclose upon a mechanic’s lien to conclude that preferred venue was not in Johnson County, but in Jackson County, where Son resides and the Trust is administered. However, we have concluded that the trial court erred when it dismissed Biohazard’s claim to foreclose upon its mechanic’s lien, and preferred venue for a mechanic’s lien claim is in the county where the property is located. See Ford v. Culp Custom Homes, Inc., 731 N.E.2d 468, 473 (Ind. Ct. App. 2000), trans. denied; see also I.C. § 32-28-3-10 (“A lien is void if . . . [t]he owner or holder of the lien fails to file an action to foreclose the lien in the county where the property is located not later than thirty (30) days after receiving the notice.”) Therefore, the trial court erred when it transferred the case to Jackson County.

Conclusion. Based on the foregoing, we conclude that the trial court erred when it dismissed Biohazard’s claim to foreclose on its mechanic’s lien, and additionally erred when it transferred the case to Jackson County.

The Paternity of N.C.; Michael J. Casteel v. Tamala Cannon - "Based on the foregoing, we conclude that the trial court did not abuse its discretion in calculating Casteel’s child support obligation and did not determine that a no-contact order with Casteel’s minor child existed."

In Thomas Samm, Jr. v. State of Indiana, a 15-page, 2-1 opinion, Judge Riley writes:

Samm raises one issue for our review, which we restate as: Whether the trial court abused its discretion when it denied his motion to reduce the requirement of a $100,000 cash-only bond for his release from jail pending resolution of the charges against him. * * *

Samm argues that the trial court abused its discretion by ordering a $100,000 cash-only bond. Specifically, he contends that the trial court’s bond schedule permitted a ten percent option, and the trial court abused its discretion by not following its own schedule. Secondly, he argues that the trial court violated his due process rights by deviating from its own bond schedule without holding a hearing first. The State contends that this appeal is moot since Samm has been permitted to leave jail after posting $5,000.

I. Mootness We first address the State’s contention that this appeal is moot. We typically will not engage in discussions of moot questions or render advisory opinions. * * *

Nevertheless, an exception applies to our general prohibition of determining cases that are moot. Pursuant to Indiana Constitution Article 1 §§ 16 and 17, the right to bail that is not excessive is one of constitutional proportion. Furthermore, the imposition of bail is a common occurrence, and therefore questions surrounding bond issues are likely to recur. Many bond issues are made moot by the disposition of criminal charges prior to the completion of an appeal, and therefore such issues could often evade review. Thus, we will address Samm’s claims of error.

II. Abuse of Discretion Samm argues that the trial court’s setting of a $100,000 cash-only bond is an abuse of discretion. Because he claims to have been treated outside of the LaPorte County Superior Court No. 1 bond schedule, he contends the formerly required bond is presumably unreasonable. * * *

Although we conclude that the trial court treated Samm within the parameters of its bond schedule, Samm’s bond may still be excessive. Paramount considerations convince us that bail should be tailored to the individual in each circumstance. Bond schedules should serve only as a starting point for such considerations.* * *

[I]f the trial court had performed an appropriate evaluation of the evidence presented by Samm in light of the factors in Indiana Code section 35-33-8-4, the trial court may have appropriately come to the conclusion that a $100,000 cash-only bond was required.

III. Did the trial court violate Samm’s due process rights? Finally, Samm contends that the trial court violated his due process rights. However, his entire argument in this section is premised upon his contention that the trial court deviated from its bond schedule when it set his bond. * * * Therefore, we fail to see how Samm’s due process rights could have been violated by the procedure provided by the trial court.

Conclusion. Based on the foregoing, we conclude that the trial court abused its discretion when it failed to consider the required factors when refusing to reduce Samm’s bond amount. However, since that issue is now moot because Samm’s bond was reduced and he posted bond and has been released, we will not disturb the proceedings of the trial court. Remanded.

ROBB, J., concurs.
BAKER, C.J., dissents with separate opinion: I respectfully dissent from the majority’s decision to remand this cause for further proceedings on the issue of whether the trial court abused its discretion in refusing to reduce Samm’s $100,000 cash-only bond. Recognizing the long-standing principle that a case is moot when no effective relief can be rendered to the parties before the court, the undisputed evidence in this case established that the trial court reduced Samm’s bail from $100,000 cash-only to “10% on a $50,000 bond.” * * *

Finally, I cannot agree that a discussion of the trial court’s alleged abuse of discretion in setting the $100,000 bond amount is warranted under an exception to the mootness doctrine. * * * Because Samm has already been released on the reduced bond amount, there is simply no need to remand for further findings about the propriety of the $100,000 bond that had been originally set. As a result, I would dismiss the appeal.

NFP civil opinions today (1):

In the Matter of the Supervised Estate of Fred L. Russell v. Harold Kinsler (NFP) - "Based on the foregoing, we conclude that the trial court correctly interpreted the provisions of the Trust by ordering that the beneficiary of the specific devise of real estate is not required to contribute to the payment of the administrative expenses incurred by the Trust."

NFP criminal opinions today (2):

Myron L. Grubowski v. State of Indiana (NFP)

Jermaine Young v. State of Indiana (NFP)

Posted by Marcia Oddi on September 22, 2008 01:06 PM
Posted to Ind. App.Ct. Decisions