The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 6 today (and 13 NFP)

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Thursday, May 21, 2009

Ind. Decisions - Court of Appeals issues 6 today (and 13 NFP)

For publication opinions today (6):

In Painters District Council 91 v. Calvert Enterprises Electronics Svcs., Inc. , an 8-page opinion, the issue is "Whether the trial court erred in granting Calvert‟s motion to transfer venue." Judge Darden concludes:

The parties presented conflicting evidence regarding whether Painters' claim related to or arose out of its Marion County office. For example, Calvert and Painters, by Shofstall, executed the Agreement in Vanderburgh County. Painters, however, presented evidence that the decision to file its complaint for declaratory judgment was made in its Marion County office. Furthermore, Calvert asserted that it performed the majority of its IT services in Painters' Vanderburgh County office while Painters asserted that Calvert “performed work at multiple [Painters] offices under” under the Agreement, including the Marion County office. (App. 45). Given this conflicting evidence as well as the lack of evidence regarding the location of Painters' principal office, if any, we hereby reverse and remand to the trial court for a hearing on the evidence.

In Adrienne Weathersby v. JPMorgan Chase Bank, a 13-page opinion, Judge Brown writes:

Weathersby and MERS raise five issues, which we consolidate and restate as whether the trial court erred by finding that Chase’s mortgage was valid and that Weathersby’s deed and MERS’s mortgage were invalid. We reverse and remand.

This complex real estate dispute concerns a determination of ownership to a piece of property in Lake County for which multiple chains of title exist. Chase claims that Bessie Lewis is the valid owner of the property and that it holds a valid mortgage, while Weathersby claims that she is the valid owner of the property and MERS holds a valid mortgage. * * *

As a result, we conclude that genuine issues of material fact exist regarding whether the 5285 Adams Trust had actual knowledge in October 1998 of the prior transfer from the Blair Family Trust to FHCS and, thus, whether the 5285 Adams Trust was a bona fide purchaser of the Property. If the 5285 Adams Trust was not a bona fide purchaser of the Property, the chain of title leading to Lewis and Chase fails. We conclude that the trial court erred by granting summary judgment to Chase, and we remand for proceedings consistent with this opinion.

In Travelers Indemnity Co. of America v. Jerry Jarrells , a 22-page, 2-1 decision with three opinions, Judge Darden writes:

Travelers argues that the trial court erred in denying its motion for summary judgment because the statutory lien entitled it to reimbursement of worker's compensation payments made on behalf of Jarrells. We agree. * * *

[W]e conclude that Travelers is entitled to a statutory lien and/or reimbursement from the judgment for the worker‟s compensation it paid on Jarrells' behalf, “subject to [ ] paying its pro-rata share of the expenses of the reasonable and necessary costs and expenses of asserting the third party claim.” I.C. § 22-3-2-12. Accordingly, we reverse the trial court's grant of summary judgment in favor of Jarrells and remand with instructions to enter judgment for Travelers and to determine the value of Travelers' lien and its pro rata share for purposes of reimbursement.

VAIDIK, J., concurs in result with separate opinion: I agree with the result of the majority opinion, but I respectfully disagree in part with the path taken to get there. * * *

RILEY, J., dissents with separate opinion. [that concludes] By enforcing the lien, the majority is in effect imposing a double set-off on Jarrells. First, the jury by following the jury instruction, already properly considered the worker‟s compensation benefits in its jury verdict and reduced its award accordingly. Thus, by again reducing the jury award with the worker‟s compensation benefits by enforcing the lien, Jarrells is subject to a double set-off, prohibited under Indiana‟s collateral source statute and Pendleton
.
Furthermore, this dissent is in line with the purpose of both the worker‟s compensation statute and the collateral source statute. Both statutes focus on preventing a victim from recovering twice for his injuries. See I.C. § 34-44-1-1(2); Walkup, 702 N.E.2d at 713. They are intended to make the injured party whole while placing the cost on the wrongdoer. Here, the majority fails to make Jarrells whole.

I would affirm the trial court.

In Clint R. Beldon v. State of Indiana , a 14-page opinion, Judge Riley concludes:

Based on the foregoing, we conclude that although the trial court erred by admitting the videotaped deposition of Dr. Bache, the deposition testimony was merely cumulative of other properly admitted evidence, and the error was harmless beyond a reasonable doubt. We also conclude that Beldon’s failure to raise any argument at trial concerning the State’s failure to provide evidence of requests for blood and urine tests constituted waiver of that issue for purposes of his appeal. Finally, we conclude that the trial court erred by elevating his charge for operating a vehicle while intoxicated to a Class D felony based upon a prior conviction and enhancing his sentence based, in part, upon a habitual substance offender finding relying upon the same prior conviction. Therefore, we remand so that the trial court may remedy the sentencing defect in accordance with this opinion.

In Walker Whatley v. State of Indiana , a 9-page opinion, Sr. Judge Sullivan writes:

A jury convicted Walter Whatley (“Whatley”) of Possession of Cocaine as a Class A felony under Ind. Code 35-48-4-6(b)(3)(B)(iv). More precisely, Whatley was convicted of possession of cocaine in a quantity in excess of three grams within one- thousand feet of a “youth program center.”

Whatley does not contest the fact that he was in possession of cocaine in excess of three grams. He also does not contest that he possessed the cocaine within one thousand feet of the Robinson Community Church as charged. Rather, he asserts that the criminal statute and the statute defining a “youth program center” are unconstitutionally vague as applied to him. Insofar as here applied, I.C. 35-41-1-29 defines a youth program center as “a building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs or services for persons less than eighteen (18) years of age.” * * *

The thrust of Whatley's position was stated by counsel in closing argument as follows:
Did he [possess cocaine] within a thousand feet of a youth program center? No. He did so within a thousand feet of a church. Churches aren't even covered in the statute. They didn't charge a church. They charged a youth program center. . . . There isn't a youth program center. It's a church”
(Tr. at 166). Conversely, the State argued, “It's not the building, it's not the primary purpose that determines whether it's a youth program center, it's the activities that go on there. (Tr. at 179). ” * * *

The cases collected are not uniform, from jurisdiction to jurisdiction, in their analysis or in their results. Nevertheless, we find persuasive guidance from several representative cases which hold that the principal character and use of a structure is not changed by some ancillary or accessory use. * * *

In light of the precedent herein set forth and after careful consideration and deliberation, we hold that the Robinson Community Church was and remains a church and is not converted into a youth program center by reason of its faith-based activities for young people. Bi-weekly Girl Scout troop meetings and mentoring of children by adult members of the congregation were accessory or incidental to the existence and identity as a church. The church was not a youth program center. It remained a church notwithstanding the incidental activities not solely religious in nature.

The judgment is reversed and the cause is remanded to the trial court for entry of a conviction as a Class C felony and to sentence the defendant accordingly.

In Richard D. Hacker v. State of Indiana , a 7-page opinion where "The sole issue is whether the post-conviction court properly concluded that Hacker received effective assistance of counsel before pleading guilty to Class A felony child molesting" Judge Barnes concludes:

In sum, given the testimony of trial counsel regarding Hacker's eagerness to plead guilty, his own statements to that effect at the sentencing hearing, the strength of the State's case against him, and the substantial benefit he received from the plea agreement, Hacker has failed to meet his burden that trial counsel's misadvice “materially affected” his decision to plead guilty, as Segura defined that phrase.

Conclusion The post-conviction court correctly concluded that Hacker did not receive ineffective assistance of trial counsel. We affirm the denial of Hacker's PCR petition.

NFP civil opinions today (2):

Scott S. Pitcher and Fortune Management, Inc., et al v. Royal Flush, Inc. (NFP)

FLW, LLC, Fulkerson Enterprises, et al v. John F. Wolpert (NFP)

NFP criminal opinions today (11):

Raphael Martin v. State of Indiana (NFP)

Corwin Stoehr v. State of Indiana (NFP)

Danny L. Hartley v. State of Indiana (NFP)

Daniel Groves v. State of Indiana (NFP)

Jerome A. Osborn v. State of Indiana (NFP)

Jonathan Towell v. State of Indiana (NFP)

Shaketa Jackson v. State of Indiana (NFP)

Mickel Jose McNeil v. State of Indiana (NFP)