The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP), including a question of first impression on the propriety of a bank's refusal to pay a cashier's check.

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Friday, February 20, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP), including a question of first impression on the propriety of a bank's refusal to pay a cashier's check.

For publication opinions today (3):

In David Ashworth v. State of Indiana , a 16-page opinion, Judge Robb writes:

Following a jury trial, David Ashworth appeals his conviction and sentence for murder, a felony. On appeal, Ashworth raises three issues, which we restate as 1) whether the trial court properly admitted opinion evidence from an investigating detective regarding the detective's elimination of two individuals as suspects; 2) whether sufficient evidence supports Ashworth's conviction; and 3) whether the trial court abused its discretion in sentencing Ashworth. Concluding that any error in admitting opinion testimony from the detective was harmless and that sufficient evidence supports the jury's guilty verdict, we affirm Ashworth's murder conviction. We also conclude, however, that the trial court abused its discretion in sentencing Ashworth because the sole aggravating circumstance of Ashworth's criminal history is insufficient to sustain his statutory maximum sentence of sixty years. As such, we affirm in part, reverse in part, and remand with instructions for the trial court to revise Ashworth's sentence to an enhanced term of fifty years.

In South Central Bank of Daviess County v. Lynnville National Bank, Bryan K. Fisher, et al. , a 19-page opinion, Chief Judge Baker writes:

Although Indiana adopted Article 3 of the Uniform Commercial Code decades ago, we have not had occasion in this State to consider the propriety of a bank's refusal to pay a cashier's check. Thus, this appeal presents an issue of first impression in Indiana, namely, under what circumstances - if any - an issuing bank may properly refuse to pay a cashier's check.

Appellant-plaintiff South Central Bank of Daviess County (South Central) appeals the trial court's order denying South Central's motion for partial summary judgment and granting appellee-defendant Lynnville National Bank's (Lynnville) motion for summary judgment on South Central's complaint against Lynnville. Specifically, South Central alleges that the trial court erred by concluding that Lynnville was entitled to refuse to pay a cashier's check that it had issued. Finding that Lynnville wrongfully refused to pay the cashier's check, that none of the applicable defenses are available to Lynnville, and that South Central did not fail to mitigate its damages, we reverse and remand with instructions to enter final judgment in South Central's favor in the amount of the original cashier's check - $31,917.55 - plus expenses, interest, and consequential damages, if any, to be determined by the trial court. * * *

Because South Central is an HDC, the only defenses that could be raised by Lynnville are the “real” defenses enumerated by Indiana Code section 26-1-3.1-305(a)(1):

(A) infancy of the obligator to the extent it is a defense to a simple contract;
(B) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor;
(C) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms; or
(D) discharge of the obligor in insolvency proceedings[.]

See I.C. § 26-1-3.1-305(b) (explaining that the above-listed defenses are the only ones available against an HDC). None of these defenses apply to Lynnville — it is plainly not an infant, nor has it filed bankruptcy. There has been no suggestion of duress, lack of capacity, or illegality of the transaction between Lynnville and the Fishers. Finally, Lynnville's bank officer signed the cashier's check knowing exactly its amount and to whom it was payable, so the fraud defense is similarly inapplicable. * * *

Conclusion. In sum, we hold that (1) Lynnville wrongfully refused to pay the cashier's check; (2) South Central was a holder in due course of that check, meaning that Lynnville's defenses are extremely limited; (3) none of the applicable defenses are available to Lynnville; and (4) South Central did not fail to mitigate its damages. Therefore, we reverse and remand with instructions to enter final judgment in South Central's favor in the amount of the original cashier's check- $31,917.55 - plus expenses, interest, and consequential damages, if any, to be determined by the trial court.

The judgment of the trial court is reversed and remanded with instructions.

[ILB note] This case was argued Feb. 3 - you may watch the webcast here]

In Thomas Grabowski, et al. v. Brian Waters and Richard Klare , a 12-page opinion, Judge Bradford writes:

Appellant-Defendant Thomas Grabowski (“Thomas”) appeals the trial court's denial of his motion to set aside a default judgment entered in favor of Appellees-Plaintiffs Brian Waters and Richard Klare (collectively, “Plaintiffs”) in their action to quiet title to certain real estate previously owned by Thomas's parents, Frank and Jane Grabowski (“the Grabowskis”). Upon appeal, Thomas claims that the default judgment is void for lack of personal jurisdiction due to improper service of process. We affirm. * * *

In their complaint, Plaintiffs stated that, according to public records, the Grabowskis' address was in Whiting, Indiana, in Lake County. That same day, Plaintiffs filed a praecipe requesting separate service by the Clerk via certified mail to each of the Grabowskis at their Whiting address. Because prior efforts at serving the Grabowskis had proven unsuccessful, the praecipe further requested that the Clerk serve the Grabowskis by publication in the Michigan City News Dispatch newspaper in LaPorte County pursuant to the requirements of Trial Rule 4.13. In requesting service by publication, Waters signed an affidavit indicating that the Grabowskis' Whiting address was obtained from public records which were at least ten years old, that a diligent search had been made to update the records, and that more reliable information concerning their whereabouts could not be found. Service of process, both by certified mail in Lake County and publication in LaPorte County as requested, did not yield a response.

On April 16, 2007, Plaintiffs filed a motion for default judgment and an accompanying affidavit averring that summons by publication was made in the Michigan City News-Dispatch on February 27, 2007; March 6, 2007; and March 13, 2007, constituting three successive weeks, and that none of the defendants had responded. On April 16, 2007, the trial court entered a default judgment in favor of Plaintiffs, quieting title to the property in their favor and declaring them owners thereof in fee simple, free from any rights or interests of any other persons, including the Grabowskis and their heirs and successors in interest. * * *

Because the instant case involved tax-sale property previously owned by now- deceased persons lacking an estate or named representative, and given the Plaintiffs' efforts to serve these persons and their unnamed heirs and successors in interest both at their last known address and by publication in the county where the property at issue is located, we agree with the trial court that such notice was reasonably calculated to apprise the persons and their unnamed successors in interest, including Thomas, of the instant action. This is so especially in light of the fact that the record lacks evidence demonstrating how a more diligent search would have revealed the identities or locations of interested parties. Accordingly, we affirm the trial court's denial of Thomas's motion to set aside the default judgment against him.

NFP civil opinions today (1):

James and Rachel Willoughby v. Donald Lockard (NFP) - "In summary, we conclude that the Settlement Agreement was not ambiguous and that the Willoughbys have failed to establish that the 2007 survey and the deed description are inconsistent with its terms. The trial court did not err in confirming the Settlement Agreement and ordering the Willoughbys to execute the quitclaim deed."

NFP criminal opinions today (14):

State of Indiana v. Joseph Coleman (NFP)

Christopher J. Willumsen v. State of Indiana (NFP)

Kufanyo Brooks v. State of Indiana (NFP)

Raye Paxson v. State of Indiana (NFP)

A.B. v. State of Indiana (NFP)

Alva Leslie Funk v. State of Indiana (NFP)

Brian Scott Waddell v. State of Indiana (NFP)

Brian J. Hunt v. State of Indiana (NFP)

James Hayes v. State of Indiana (NFP)

Gregory Howard v. State of Indiana (NFP)

Rickie Johnson v. State of Indiana (NFP)