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Monday, October 06, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP); Tax Court issues one

For publication opinions today (3):

In Hank Johnson, Jr. v. American Classic Mortgage Corporation, Milton Booth, Dennis Hayes, and Jocelyn Tandy, a 6-page opinion, Judge Crone writes:

Hank Johnson, Jr., appeals the judgment in favor of American Classic Mortgage Corporation (“American Classic”) on his counterclaim seeking damages arising from American Classic’s alleged violation of Indiana Code Section 23-2-5-20. Johnson raises two issues, which we consolidate and rephrase as follows: Whether the trial court’s judgment in favor of American Classic and against Johnson on his counterclaim is clearly erroneous. We reverse and remand for further proceedings. * * *

Specifically, he contends that that the trial court erred in concluding that he was required to prove by a preponderance of the evidence that American Classic intentionally violated Indiana Code Section 23-2-5-20. We agree.

Indiana Code Section 23-2-5-15 contains no scienter requirement.3 It is undisputed that American Classic filed a lawsuit against Johnson claiming that he owed it a five-percent commission for obtaining a loan for him, that the loan was never closed, and that it took a default judgment against Johnson for $35,000. These facts establish that American Classic violated Indiana Code Section 23-2-5-20.4 Indiana Code Section 23-2-5-15 clearly provides that any person who violates Chapter 5 is liable to any person damaged by the violation. Accordingly, the trial court erred in entering judgment in favor of American Classic and against Johnson on his counterclaim.

We therefore reverse the judgment of the trial court and remand to determine the amount of actual damages, interest, and attorney’s fees to which Johnson is entitled as a result of American Classic’s violation of Indiana Code Section 23-2-5-20.

In Cornelius Cooper v. State of Indiana , a 13-page opinion, including a 7-page opinion "concurring in result', Judge May writes:
Cornelius Cooper’s probation was revoked after a hearing at which the trial court did not receive evidence. He presents one issue on appeal: whether the trial court erred in denying his motion to reconsider. We reverse and remand for a new probation revocation hearing. * * *

We find Cooper is entitled to a probation revocation hearing because the court deprived Cooper of his right to due process. We reverse the trial court’s denial of the motion to reconsider and remand for a probation revocation hearing. Reversed and remanded.

In Michael Rotz and Sue Rotz v. State of Indiana , an 8-page opinion, Judge May writes:
Michael A. Rotz and Sue Rotz appeal the denial of their motion to suppress. They argue the probable cause affidavit was insufficient to permit issuance of the search warrant. We affirm and remand for trial. * * *

In this case, the police found Michael had a criminal history that included arrests for drug offenses and observed the Rotzes’ house windows were covered. This information gave the police more than a “hunch” that the Rotzes were growing marijuana, and provided a sufficient basis for the issuing magistrate to conclude the police had reasonable suspicion to search the Rotzes’ trash. We affirm and remand for trial.

NFP civil opinions today (2):

Duneland Sand Inc., et al v. Kevin Misch, et al (NFP) - "Under the circumstances, we cannot say that the trial court abused its discretion in denying the motion for joinder or the motion for substitution. See Dunson v. Dunson, 769 N.E.2d 1120 (Ind. 2002) (noting that joinder must be raised before or during trial court proceedings)."

Robert D. Jackson, Jr., et al v. Interstate Fire and Casualty Company (NFP) - "Because the insurance policy at issue excludes automobile liability coverage whether the automobiles are owned by the insured or its subcontractors, we affirm the trial court’s grant of summary judgment."

NFP criminal opinions today (7):

Kelly Jo Ezra v. State of Indiana (NFP)

Timothy A. Anderson v. State of Indiana (NFP)

Byron Breaston v. State of Indiana (NFP)

Brian L. Schultz v. State of Indiana (NFP)

Stephen Lynn Pentecost v. State of Indiana (NFP)

Jarod Chafin v. State of Indiana (NFP)

Cory Bailey v. State of Indiana (NFP)

Tax Court for publication opinions today (1):

Indiana Dept. of State Revenue, Inheritance Tax Division v. The Estate of Virgil J. Miller - Judge Fisher writes:

The issue the Court must decide is whether the probate court abused its discretion in granting the Department’s motion for an extension of time to file its notice of appeal with this Court under Trial Rule 72(E). * * *

In concluding that the probate court rendered a final appealable judgment during the April 25, 2006 hearing, the Court must also conclude that the Department had actual knowledge of the judgment, as it was rendered in the Department’s presence. Consequently, the probate court abused its discretion in granting the Department an extension of time to file its notice of appeal under Trial Rule 72(E) because the Department had actual knowledge of the final judgment prior to requesting an extension of time to perfect its appeal. See T.R. 72(E) (limiting the grant of an extension of time to a “party who was without actual knowledge”) (emphasis added). See also Smith v. Deem, 834 N.E.2d 1100, 1110 (Ind. Ct. App. 2005) (concluding that a party is not entitled to an extension of time when the party has notice of the trial court’s ruling before its entry into the Record of Judgments and Orders (RJO)) (citations omitted), trans. denied.

For the above stated reasons, the Court REVERSES the probate court’s order granting the Department an extension of time to file its notice of appeal. Therefore, the Department’s appeal is DISMISSED.

Posted by Marcia Oddi on October 6, 2008 01:48 PM
Posted to Ind. App.Ct. Decisions