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Thursday, June 02, 2011

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Shepherd Properties Co., d/b/a Shepco Commercial Finishes v. International Union of Painters and Allied Trades, District Council 91, a 7-page opinion, Judge Bailey writes:

[Issue] [W]hether the trial court erroneously applied APRA in imposing joint and several liability for attorney’s fees upon ShepCo as well as a public agency.

ShepCo was a subcontractor for a public works project, construction at Stonybrook Middle School, in the Metropolitan School District of Warren Township in Marion County. * * *

Although we must liberally construe APRA to implement its policy of public access, we cannot contravene or expand the statutory scheme enacted by the legislature. Heltzel v. Thomas, 516 N.E.2d 103, 106 (Ind. Ct. App. 1987), trans. denied. The attorney’s fees
provisions of APRA are directed toward public agencies. There is no corollary provision for assessment of attorney’s fees against a private party in the event of improper nondisclosure.

Accordingly, the trial court erroneously imposed upon ShepCo joint and several liability for statutory attorney’s fees under APRA. Absent a fee shifting statute or contractual provision for the payment of attorney’s fees, the American Rule – that each party ordinarily must pay his or her own attorney’s fees – is applicable. See H & G Ortho, Inc. v. Neodontics Intern., Inc., 823 N.E.2d 734, 737 (Ind. Ct. App. 2005). As such, ShepCo is not liable for the Union’s attorney’s fees and the denial of the motion to correct error was an abuse of discretion.

Conclusion. APRA encompasses public agencies to which specific requests for governmental affairs information are directed. As such, a private entity such as ShepCo is not liable for attorney’s fees under APRA for nondisclosure of public records. Warren Township, the public agency having denied access, is liable.[6] * * *
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[6] But see Indianapolis Newspapers, 739 N.E.2d at 152 (finding that the Lottery, holding information to which one party claimed a statutory entitlement and another party claimed a proprietary interest, was not precluded from seeking Indiana Trial Rule 22(D) interpleader in an APRA action).

In Larry Ault v. State of Indiana, a 10-page opinion, Judge Bradford writes:
Following a jury trial, Appellant-Defendant Larry Ault was convicted of Murder, a felony, and sentenced to fifty-five years in the Department of Correction. Upon appeal, Ault claims that the trial court abused its discretion in denying him a jury instruction on self-defense, forcing him to testify in violation of his Fifth Amendment rights. Concluding that there was sufficient evidence, without Ault's testimony, to support a jury instruction on self-defense, we reverse and remand for a new trial.* * *

[ILB: At issue here is the "no retreat" self-defense statute, IC 35-41-3-2, which has been discussed recently in light of the Supreme Court's decision in Barnes. Here the trial court refused to give the self defense instruction. In Barnes, apparently the issue was not raised.]

Here, the facts at trial established that Parrish had driven to Ault's house and was standing on his property; that Parrish was shouting, threatening Ault face-to-face with bodily injury; that Parrish had taken the additional action of removing his coat and throwing it inside his vehicle; and that upon removing his coat, Parrish had indicated that his attack on Ault would be “now.” The trial court specifically found that these facts were adequate to establish the objective component of self-defense. Given the broad use in Indiana of circumstantial evidence to show an individual's state of mind, and in light of Hilbert and Hoskins, we must conclude that these facts were similarly adequate to support a reasonable inference regarding the subjective component of self-defense, namely that Ault believed deadly force was necessary to protect himself. We therefore conclude that the trial court abused its discretion in refusing to instruct the jury on self-defense without Ault's testimony.

Having found error in the trial court's refusal to instruct on self-defense without Ault's testimony, we need not address whether the trial court's requiring Ault to testify constitutes a Fifth Amendment violation. The State does not argue that there was harmless error in this case, and we cannot conclude that the denial of Ault's self-defense instruction on these facts was harmless.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.

NFP civil opinions today (2):

David W. Johnson and Priscilla Johnson v. Madison Regatta, Inc., and American Boat Racing Association (NFP) - Brief 6News story here.

Estate of Maurice Kendrick, Sr., Susan K. Kussart, as Guardian of B.K. v. Estate of Maurice Kendrick, Sr., Crystal Burke-Potts, et al. (NFP)

NFP criminal opinions today (4):

Stephen Ray Jones, Jr. v. State of Indiana (NFP)

Kem Linn v. State of Indiana (NFP)

Herman Cecil Mallory v. State of Indiana (NFP)

Jason L. Prater v. State of Indiana (NFP)

Posted by Marcia Oddi on June 2, 2011 11:16 AM
Posted to Ind. App.Ct. Decisions