The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 7 today (and 13 NFP)

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Tuesday, March 31, 2009

Ind. Decisions - Court of Appeals issues 7 today (and 13 NFP)

For publication opinions today (7):

In Home Telephone Co. of Pittsboro, Inc., et al. v. Verizon North, Inc., et al. , an 11-page opinion is an appeal from an order of the state utility regulatory commission. Judge Riley concludes:

Based on the foregoing, we hold that (1) Appellants waived their argument as to whether the IURC abused its discretion when it held that Section 10 of the Phase II Settlement Agreement precluded the Variance requested by Appellants; (2) the IURC did not render a decision on matters outside Appellants’ requested relief; and (3) the IURC did not abuse its discretion when it required Appellants to modify their Qualification Test by excluding the impact of rate reductions that occurred in 2006. Affirmed.

In Diane Meyer v. National City Bank , a 6-page appeal pro se, Senior Judge Hoffman writes:

Defendant-Appellant Diana Meyer appeals the trial court’s grant of summary judgment in favor of Plaintiff-Appellee National City Bank. We affirm.

Meyer presents three issues for our review, which we consolidate and restate as two: I. Whether the trial court erred in granting summary judgment for National City Bank. II. Whether Weltman Weinberg & Reis Co, L.P.A. properly represents National City Bank in this action.

In Heartland Resources Inc., Heartland-Red River Prospect, L.P., et al v. Ambrose and Catherine Bedel, a 7-page opinion, Judge Najam writes:

Heartland Resources, Inc.; Heartland-Red River Prospect, L.P.; David A. Stewart; Richard Stewart; and Mark Haynes (collectively “Heartland”) appeal from the trial court’s entry of default judgment against Heartland and award of damages to Ambrose Bedel and Catherine Bedel (collectively “the Bedels”). Heartland presents the following restated issues for our review: 1. Whether the trial court had personal jurisdiction over Heartland. 2. Whether the trial court erred when it awarded the Bedels treble damages. The Bedels cross-appeal and contend that the trial court erred when it did not award them attorney’s fees. We affirm and remand with instructions. * * *

Heartland contends that the trial court abused its discretion when it did not dismiss the Bedels’ complaint based upon the forum-selection clause in the contract. Indeed, the majority of Heartland’s brief on appeal is devoted to arguments that the forum-selection clause was freely negotiated and just and reasonable. However, those issues are not properly before this court on appeal, and we do not address the validity of the forum- selection clause.

[1] Once default judgment is entered against a party, the only means of challenging that judgment is by a motion to set aside the default judgment “in accordance with the provisions of Rule 60(B).” * * *

Heartland also has not shown that the trial court abused its discretion when it denied its motion to set aside default judgment. In addition to showing excusable neglect, a movant for relief from judgment under Trial Rule 60(B)(1) must show a meritorious defense. * * *

Here, Heartland did not plead the forum-selection clause or any meritorious defense, but merely alleged that the Bedels’ allegations were “not . . . based in fact.” Heartland did not present any evidence in support of that bare assertion. Indeed, Heartland was not even present at the hearing on its motion to set aside default judgment. Heartland has not demonstrated that the trial court abused its discretion when it denied its motion to set aside default judgment.

[2] Heartland next contends that the trial court erred when it awarded treble damages to the Bedels. Heartland maintains that the Bedels’ claims “fall squarely under” the Indiana Uniform Securities Act (“the Act”), which does not provide for treble damages. In essence, Heartland contends that because the award is based on damages arising from the Bedels’ investment in securities, the Act is the exclusive remedy. But there is nothing in the Act making it the exclusive remedy for the Bedels. * * *

[R]ather than awarding the Bedels damages under the Act, which does not provide for treble damages, the trial court expressly based the award on Heartland’s “fraud and deception as detailed in the complaint.” Id. The trial court did not err when it awarded the Bedels treble damages.

Cross-Appeal. The Bedels contend that the trial court erred when it did not award them attorney’s fees. This Court has held that a plaintiff is entitled to attorney’s fees, including appellate attorney’s fees, when she prevails under the Crime Victim’s Relief Act. See Benge v. Miller, 855 N.E.2d 716, 722 (Ind. Ct. App. 2006). We remand to the trial court with instructions to determine a “reasonable attorney’s fee,” including appellate attorney’s fees, and to include those amounts in the Bedels’ award. See I.C. § 34-24-3-1.

In Julie A. Gardiner v. State of Indiana, an 11-page, 2-1 opinion, Judge Robb writes:

Julie Gardiner appeals the trial court’s modification of her sentence for dealing in methamphetamine within 1000 feet of a public park, a Class A felony, to twenty years all to be executed at the Department of Correction. For our review, Gardiner raises a single issue: whether the trial court erred when it determined that Indiana Code section 35-50-2-2(b)(1) (the “non-suspension rule”) prohibited it from suspending any portion of Gardiner’s twenty- year sentence where Gardiner had a prior Class D felony conviction that was subsequently reduced to a Class A misdemeanor conviction. Concluding that Gardiner’s prior conviction triggers the non-suspension rule, we affirm. * * *

Gardiner asks us to determine, as a matter of first impression, whether Indiana Code section 35-50-2-2(b)(1) prohibits a trial court from imposing an executed sentence below the statutory minimum when the defendant has a prior conviction for a Class D felony which has been subsequently reduced to a Class A misdemeanor. * * *

No Indiana court has addressed the issue of whether a reduction of a prior conviction from a felony to a misdemeanor pursuant to the terms of a plea agreement affects the application of the non-suspension rule in Indiana Code section 35-50-2-2(b)(1). * * *

We are sympathetic to the argument that application of the non-suspension rule under these circumstances fails to account for Gardiner’s good behavior. * * * We are frustrated by a sentencing scheme that so illogically limits the sentencing judge’s discretion. Rather, we believe that Indiana’s sentencing scheme should encourage judges to sentence defendants based on their demonstrated behavior rather than on speculation about future behavior, and we invite the legislature to consider amending the statutes to provide such discretion.

Despite our frustration, the current relevant statutes do not grant such discretion. * * *

Therefore, we hold that the non-suspension rule in Indiana Code section 35-50-2- 2(b)(1) remains in effect after a prior unrelated Class D felony conviction is subsequently reduced to a Class A misdemeanor. Rather, the application of the non-suspension rule depends upon the status of the prior criminal conviction at the time of sentencing for the subsequent criminal conviction. * * *

At the time of her conviction and sentence for the Class A felony, Gardiner had a prior unrelated Class D felony conviction. Therefore, the trial court is prohibited from suspending her sentence below the statutory minimum of twenty years. Even though her Class D felony conviction was later modified to a Class A misdemeanor, the non-suspension rule continues to apply. As a result, the trial court did not err when it refused to modify Gardiner’s executed sentence below twenty years. Affirmed.

CRONE, J., concurs.
BROWN, J., dissents with separate opinion. [which begins, on p. 10 of 11] I respectfully dissent from the majority’s conclusion that the trial court lacked the ability to suspend Gardiner’s sentence below the minimum sentence.

William P. Graham, Sr. v. State of Indiana - "Based on the foregoing, we conclude that Graham has not waived his claim by pleading guilty without bargained for benefit, and the trial court erred by using the same underlying felony to support the conviction of Graham for unlawful possession of a firearm by a serious violent felon and to support an habitual offender finding used to enhance the sentence for that count. We remand for the trial court to remedy this sentencing defect."

Gary Dennis Jackson v. State of Indiana is a 19-page, 2-1 opinion, where Judge Riley concludes:

Based on the foregoing, we conclude there was no evidence that the jury was influenced by the newspaper article, and, therefore, there was no manifest necessity to grant such a mistrial. Consequently, the dismissal of the jury at Jackson's second trial operated as an acquittal, and the subsequent trial on those same charges violated his right to be free from double jeopardy. Reversed.

[Judge Bradford's 8-page dissent begins:] In my view, the trial court was within its considerable discretion to conclude that a manifest necessity existed to justify a mistrial and permit retrial in the instant case without violating Jackson's double jeopardy protections. For this reason, I respectfully dissent.

In Darby L. Hape v. State of Indiana , a 40-page opinion, Judge Vaidik writes:

Darby L. Hape was convicted by a jury of Class A felony possession of methamphetamine with the intent to deliver and Class D felony resisting law enforcement and was found to be a habitual offender. The trial court sentenced Hape to an aggregate eighty-year term in the Department of Correction. After trial, the parties learned that the jury, during deliberations, read text messages saved in Hape's cellular telephone that were previously undiscovered by the State and the defense. The cellular telephone was admitted into evidence during trial as part of an exhibit showing the items confiscated from Hape at the time of his arrest. On appeal, Hape raises multiple issues, a number of which pertain to the accidental exposure of the text messages to the jury.

Among other things, we conclude that text messages are intrinsic to the cellular telephones in which they are stored. Therefore, pursuant to Indiana Evidence Rule 606(b), Hape could not impeach the jury's verdict with them. We also conclude, as a matter of first impression in Indiana, that text messages are subject to separate authentication before being admitted into evidence. Here, the lack of proper authentication was not fundamental error because the text messages were harmless. We affirm Hape's convictions for possessing methamphetamine and resisting law enforcement. However, the State concedes that the evidence is insufficient to support his habitual offender adjudication, and we reverse the trial court's finding in this regard and remand for the trial court to vacate Hape's thirty-year habitual offender sentencing enhancement. Affirmed in part and reversed in part.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of A.S. and B.S. v. Scott Co. Dept. of Child Services (NFP)

Z.K. Diggs, Inc., C.B. Hill, Inc., and C. Field, Inc. v. Treasurer of Vanderburgh Co., et al. (NFP)

NFP criminal opinions today (11):

Jonathan Hankins v. State of Indiana (NFP)

Edward Chandler v. State of Indiana (NFP)

Carlos Portillo v. State of Indiana (NFP)

Scot Dean Silvers v. State of Indiana (NFP)

Robert A. Romero v. State of Indiana (NFP)

Paul Rykard Jr. v. State of Indiana (NFP)

Gary M. Hevner v. State of Indiana (NFP)

Joseph Shafer v. State of Indiana (NFP)