The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

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Wednesday, July 22, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

For publication opinions today (3):

In Irmscher Suppliers, Inc., et al v. Scott Schuler and Kelly Schuler , a 19-page opinion, Judge Vaidik writes:

Scott and Kelly Schuler purchased thirty-two windows manufactured by Pella Corporation from Irmscher Suppliers, Inc. After the windows were installed in the home, the Schulers discovered that insects were entering their home through gaps around the screens. The Schulers sued Pella and Irmscher for a breach of the implied warranty of merchantability. After a bench trial, the trial court found that the windows did breach the implied warranty and awarded direct and consequential damages to the Schulers in the total amount of $47,827.85. On appeal, Pella and Irmscher argue that the trial court abused its discretion by admitting two letters from Irmscher to the Schulers reporting a Pella employee's conclusion that the windows were defectively designed, that the trial court erroneously concluded that the windows breached the implied warranty of merchantability, and that the trial court abused its discretion in calculating the damage award. We conclude that the letter was not double hearsay but rather was admissible as an admission by a party-opponent (because the conclusion was made by a Pella employee and reported by Irmscher, Pella's agent or intermediary) and an adoptive admission (because Irmscher manifested a belief in the truth of the Pella employee's statement). We also affirm the trial court's judgment that the windows breached the implied warranty of merchantability. But because we conclude that the trial court abused its discretion in calculating the amount of direct and consequential damages, we remand to the trial court with instructions to enter a new judgment.

In State of Indiana and Indiana Dept. of Correction v. Timothy Moore , a 10-page opinion, Sr. Judge Sharpnack writes:

Appellant/Intervenor Indiana Department of Correction (“DOC”) questions the trial court's jurisdiction over this matter and argues that this case is not the proper venue for review of DOC's Sex Offender Management and Monitory Treatment Plan (“SOMM”). Appellee/Cross-Appellant Timothy Moore (“Moore”) questions the application of the Indiana Trial Rules in this case. The State of Indiana and the Indiana Public Defender Council (collectively, “IPDC”) have provided their “Brief of Amici Curiae” and urge this court to review SOMM. We remand with instructions. * * *

The issue then is whether Moore raised only a challenge to the disciplinary actions resulting from his refusal to be subjected to a polygraph test and/or to admit to a crime he does not believe he committed or whether Moore's challenge is rooted in the Fifth Amendment.

As disclosed in our statement of the facts above, Moore's motion did indeed challenge the deprivation of credits and various privileges. However, his attorney previously challenged the deprivation of Moore's Fifth Amendment right under DOC's SOMM policies. Furthermore, in paragraph 7 of Moore's motion, he challenged the violation of his right against self-incrimination by citation to Gilfillen. Although his prayer addresses the restoration of credit time and privileges that were imposed as part of DOC's discipline, it is apparent from his attorney's letter and paragraph 7 of Moore's that the gravamen of Moore's claim is based on the constitutionality of certain requirements of its SOMM program. DOC cannot violate a prisoner's constitutional right against self-incrimination under the Fifth Amendment, impose sanctions because the prisoner asserts his rights, and then hide behind the shibboleth of “no review of prison disciplinary matters.” We conclude that the trial court had subject matter jurisdiction to review the deprivation of Moore's credit time and privileges after such deprivation occurred pursuant to Moore's claim of his Fifth Amendment right against self-incrimination. * * *

We agree that DOC is correct about the validity of its appeal from the trial court's belated grant of its motion to correct error. However, DOC's motion was entirely premised on the trial court's alleged lack of subject matter jurisdiction. As we determined above, the trial court did have subject matter jurisdiction; therefore, it erroneously granted DOC's motion to correct errors. Accordingly, the trial court's original order granting Moore's motion must stand. * * *

DOC contends that it was denied due process because it received neither notice nor an opportunity to be heard prior to entry of the trial court's order requiring DOC to restore Moore's credit time classification and privileges. Our examination of the record, however, discloses that DOC was granted permission to intervene and to file a motion to correct error. In short, DOC received notice in sufficient time to intervene and be heard. After the grant of permission to intervene and to be heard, DOC chose only to attack the trial court's jurisdiction. It did not ask to reopen the case or address the particular subject matter of the trial court's judgment. DOC was not denied due process.

The IPDC contends that this case presents an appropriate opportunity for this court to rule on the constitutionality of SOMM and to develop a “bright line” rule pertaining to DOC's implementation of SOMM. DOC counters that the record in this case is insufficient to provide this court with the information to allow for meaningful evaluation of SOMM's constitutionality and to allow for an informed development of a rule pertaining thereto. * * *

Because DOC has erroneously placed its entire defense on its subject matter jurisdiction argument, there is a clear nonconstitutional basis for deciding this case.

We remand with directions that the trial court vacate its grant of the motion to correct error and reinstate its original order in favor of Moore.

In Kelly R. Patterson v. State of Indiana - "There is sufficient evidence to support Patterson's theft convictions. Patterson has not established that the trial court abused its discretion in sentencing her or that her sentence is inappropriate. We affirm."

NFP civil opinions today (7):

In Re The Marriage of Dianna Lynn Geyer v. Robert G. Geyer (NFP)

In the Matter of I.C., J.C., et al.: Indiana Dept. of of Child Svcs. v. S.R. and J.C. (NFP)

Stacy L. Coulter v. State of Indiana (NFP)

Brandi Scobee v. Brian Scobee (NFP)

In the Matter of the Term. of the Parent-Child Rel. of D.M. and M.B.; M.M. v. Fayette Co. Dept. of Child Svcs. (NFP)

In Re The Term. of the Parent-Child Rel. of M.C., K.C. v. Indiana Dept. of Child Svcs. (NFP)

Mary C. Lovberg v. County of Hamilton (NFP)

NFP criminal opinions today (7):

William Douglas Bell v. State of Indiana (NFP)

Vendel Vegh v. State of Indiana (NFP)

Matthew Hutchinson v. State of Indiana (NFP)