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Friday, September 26, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Samuel Hardley v. State of Indiana , a 17-page, 2-1 opinion (including a 6-page dissent), Judge Bradford writes:

Hardley contends that the State failed to produce sufficient evidence to sustain his conviction for criminal confinement and that that conviction and his battery conviction violate prohibitions against double jeopardy. The State cross-appeals, contending that the trial court erred in ordering sentences Hardley received in two different cause numbers to be served concurrently. We affirm in part, reverse in part, and remand with instructions. * * *

Mathias, J., concurs.
Sullivan, S.J., dissents with opinion. [that concludes] For the reasons stated I would vacate the battery conviction but would affirm the conviction and sentence upon the confinement conviction and would also affirm the concurrent sentences imposed in the disparate cause numbers.

In Zeus B. Eaton v. State of Indiana , an 8-page opinion, Judge Bradford writes:
Appellant/Respondent Zeus Eaton challenges the trial court‟s partial revocation of his probation by alleging that he did not knowingly, intelligently, and voluntarily waive his right to counsel in the probation revocation proceeding. We reverse and remand. * * *

We conclude that the record does not establish that Eaton waived his statutory right to counsel. We further conclude that, even if he had waived his right to counsel, he was not adequately advised before doing so.

NFP civil opinions today (3):

Gaia Wines, Inc. and Angee D. Walberry, et al. v. Heartland Community Bank, et al. (NFP) - "Because we conclude that the record would have supported a finding that Heartland performed in a reasonable time, we therefore affirm the trial court’s grant of Heartland’s motion to enforce the Agreement and its denial of the Gaia parties’ motion to correct error. We dismiss the appeal in part and affirm the judgment of the trial court in part."

Gordon and Phyllis Broyles v. The Boad of Commissioners of Henry Co. (NFP) - "The Broyleses additionally claim that the trial court erred in failing to award interest pursuant to Indiana Code section 32-24-1-11(d)(6) (2002). Because this issue was not presented to the trial court in the proceedings below, we deem it waived and decline to consider it for the first time on appeal. The record demonstrates that the question of interest was not argued at trial and that the trial court made no findings or conclusions on this issue. Indeed, apart from a single reference to a proposition of law regarding interest awards, the Broyleses proposed no findings or conclusions relating to this topic, nor did they suggest or include an award of interest in their proposed judgment. The Broyleses’ claim on this issue is therefore waived. See Poulard v. Lauth, 793 N.E.2d 1120, 1123 (Ind. Ct. App. 2003).

"III. Conclusion. Having concluded that the Broyleses’ challenges to the trial court’s award of damages are without merit, and having determined that their claim for interest is waived, we affirm the
trial court’s award in the amount of $45,007."

Jamie Wicker v. Rodney McIntosh, Rebecca Goebel, et al. (NFP) - "According to Wicker‟s complaint, on September 13, 2003, he was riding in a golf cart driven by Rodney and/or Rebecca when he was thrown from the cart, suffering severe and permanent injury. * * *

"Wicker contends that the trial court abused its discretion in dismissing his claim pursuant to Indiana Trial Rule 41(E) * * * We will reverse a Trial Rule 41(E) dismissal for failure to prosecute only in the event of a clear abuse of discretion. * * *

"Under the circumstances of this case, we conclude that the trial court abused its discretion in immediately imposing the harshest possible sanction of dismissing Wicker‟s lawsuit altogether. While we certainly do not condone the dilatory tactics of Sciantarelli, we believe that dismissal would unfairly penalize Wicker for the actions of his attorney. * * *

"Finally, we believe that dismissal under the circumstances of this case would clearly run counter to Indiana's oftstated policy of having cases decided on their merits whenever possible. In summary, the effect of a dismissal here would be to punish Wicker for the sins of his attorney, a result we do not wish to endorse. We reverse and remand for reinstatement of Wicker‟s cause of action."

NFP criminal opinions today (4):

Damian Jones v. State of Indiana (NFP)

David Farrell v. State of Indiana (NFP)

Walter Rowley v. State of Indiana (NFP)

Bruce L. Morgan v. State of Indiana (NFP)

Posted by Marcia Oddi on September 26, 2008 01:35 PM
Posted to Ind. App.Ct. Decisions