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Tuesday, October 13, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

In Ronald Hillebrand v. The Supervised Estate of Charlotte Fern Large, a 9-page opinion, Judge Riley writes:

Hillebrand raises one issue on appeal, which we restate as: Whether the trial court erred in ordering attorney fees to be awarded from the proceeds of a wrongful death action. * * *

Based on the foregoing, we find that attorney fees in a wrongful death action pursuant to I.C. § 34-23-1 are included in the reasonable damages that can be recovered in the action and inure to the exclusive benefit of the estate for the payment of these expenses. Affirmed.

In Ag One Co-Op, et al v. James Andrew Scott , a 10-page opinion, Judge Mathias writes:
Ag-One Coop (“Ag-One”) appeals from the order of the Indiana Worker’s Compensation Board (“the Board”) affirming the order of the Single Hearing Member that determined that Ag-One had acted in bad faith in denying worker’s compensation benefits to James Andrew Scott (“Scott”). Ag-One presents several issues for our review, which we restate as whether the Board properly concluded that Ag-One acted in bad faith in denying Scott benefits when the Board also concluded that Scott’s former employer, Trane Co. (“Trane”), not Ag-One, was liable for Scott’s worker’s compensation claims. We reverse and remand. * * *

If a claim of bad faith does not arise simply because an insurance claim is erroneously denied, we are unable to agree with the Board that Ag-One somehow acted in bad faith in properly denying Scott’s claims for benefits. Indeed, the Board itself affirmed the decision of the Single Hearing Member who concluded that Ag-One was not liable for Scott’s worker’s compensation benefits. We therefore reverse the Board’s decision affirming the Single Hearing Member’s conclusion that Ag-One acted in bad faith and remand with instructions to vacate the order requiring Ag-One to pay damages to Scott.

Brian E. Mast v. State of Indiana is a 2-1, 3-opinion decision. Judge Rley concludes:
Based on the foregoing, we conclude that Mast‘s counsel rendered ineffective assistance by allowing his client to enter into a guilty plea without awaiting the results of his mental evaluation. Reversed and remanded.

Baker, Chief Judge, concurring. [begins, at p. 12] I fully concur with the majority opinion. I write separately to express my surprise that the State did not raise the affirmative defense of laches below and, of course, also fails to raise it on appeal. The equitable doctrine of laches operates to bar consideration of the merits of a claim or right of a person who has neglected for an unreasonable time, under circumstances permitting due diligence, to do what in law should have been done. * * *

Here, the underlying crime occurred and Mast pleaded guilty in 1989. Mast filed a pro se petition for post-conviction relief in 1990 and withdrew it in 1994. He filed a second pro se petition for post-conviction relief in 2001. This petition was later amended by counsel in 2006. In 2008—nearly twenty years after the crime occurred—a hearing was held on Mast‘s petition. I believe that if the State had raised this argument, it would have prevailed. Inasmuch as it declined to do so, however, I fully concur with the majority.

Judge Friedlander, dissenting. [concludes] Based upon the foregoing, I cannot agree that, had they waited for the experts‘ reports before proceeding with the guilty plea, the probability that Mast would have been adjudged incompetent to stand trial was high enough to meet the standard for establishing a claim ineffective assistance of counsel. That being the case, Mast would have been in precisely the same situation that led him to accept the plea deal offered by the State. In other words, in my opinion, Mast has failed to make the requisite showing of prejudice. I would affirm the denial of Mast‘s petition for post-conviction relief.

NFP civil opinions today (3):

Ron Poe v. Lasalle Bank National Association (NFP) - Poe was representing himself in a foreclosure action. The 5-page opinion concludes: "Here, the designated evidence reveals that Poe entered into a land sales contract and defaulted on it. Poe does not dispute that he failed to make the required payments and defaulted on the contract, and he has designated no evidence to create a genuine issue of material fact. Accordingly, LaSalle is entitled to judgment as a matter of law, and the trial court correctly entered summary judgment in its favor."

Earl Budd v. Bruce Lemmon and Alan Finnan (NFP) - "Budd’s petition for a writ of habeas corpus is clearly a request to review the disciplinary procedures of the DOC as they relate to the deprivation and/or restoration of his credit time, and we do not review prison disciplinary decisions. Affirmed."

Adrian Thomas v. Consolidated Property Management (NFP) - Another pro se case: "Thomas has failed to provide us with a cognizable argument as to any issue on appeal. The failure to make a cogent argument results in waiver, and as such, Thomas has waived each of the issues that she purports to raise on appeal."

NFP criminal opinions today (8):

Joseph B. Williams v. State of Indiana (NFP)

Stephen G. Bentle v. State of Indiana (NFP)

Travis Beals v. State of Indiana (NFP)

Troy Martin v. State of Indiana (NFP)

Thomas D. Turner v. State of Indiana (NFP)

Ronald Watkins v. State of Indiana (NFP)

James Albert Lowe v. State of Indiana (NFP)

Armand Robinson v. State of Indiana (NFP)

Posted by Marcia Oddi on October 13, 2009 11:04 AM
Posted to Ind. App.Ct. Decisions