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Monday, August 22, 2011

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

For publication opinions today (3):

In Smith Barney, et al. v. Stonemor Operating LLC, et al. , a 10-page opinion, Judge Crone writes:

The trial court placed a mortuary business in receivership after its former owners alleged that the current owner had stolen millions of dollars from cemetery trusts that had been established pursuant to Indiana law to ensure the perpetual upkeep of prepaid burial plots and the delivery of prepaid funeral merchandise and services. The trial court ordered the receiver to take control of the business's operations and to marshal and account for the trust fund assets. The receiver filed suit against appellant Smith Barney, which held some of the cemetery trust accounts, alleging that it had participated in the plundering of the trust funds. * * *

The trial court denied Smith Barney's motion to compel arbitration, finding that Smith Barney had impliedly waived any right it might have had to compel arbitration of Appellees' claims. Smith Barney now appeals, claiming that the trial court erred in so finding. We conclude as a matter of law that Independence Trust was not a “successor in interest” to either of the prior trustees and therefore is not bound by the arbitration clause in the account agreements. Consequently, there is no basis for compelling StoneMor to arbitrate its claims. That being the case, we affirm the trial court's judgment.

In Dennis Perry v. State of Indiana , a 34-page opinion, Judge Vaidik writes:
Dennis Perry appeals his convictions for strangulation, criminal mischief, and possession of cocaine. Perry was accused of assaulting his ex-girlfriend, N.D. After the alleged assault, N.D. sought assistance from police and was brought to the hospital for examination. She told her examining nurse that she had been sexually assaulted and strangled. She further identified Perry as the assailant. N.D.'s statements were admitted at trial via a medical record prepared by the examining nurse. N.D. did not testify. Perry argues that N.D.'s statements constituted inadmissible hearsay and that their admission violated his Sixth Amendment right to confrontation. We conclude that N.D.'s material statements—those detailing her physical attack and identifying her attacker—were admissible pursuant to the medical diagnosis exception to the hearsay rule. We further conclude that N.D.'s statements were nontestimonial under Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), and thus did not implicate Perry's confrontation rights. However, at trial, the State also elicited that Perry had been arrested and charged in connection with five prior domestic disturbances involving N.D. We conclude that the trial court erred by admitting this prior misconduct evidence, as it consisted only of arrests and charges. We further conclude that the error was not harmless and warrants reversal, though we find sufficient evidence to sustain Perry's convictions such that retrial would not violate double jeopardy. Accordingly, we reverse and remand.
In Robbie J. Bex v. State of Indiana , a 22-page, 2-1 opinion, Judge Kirsch writes:
Robbie J. Bex (“Bex”) appeals from her conviction and sentence for operating while intoxicated endangering a person, as a Class A misdemeanor. Bex presents three issues for our review, which we restate as:

I. Whether Bex was denied her constitutional right to a trial by jury when five jurors decided her case;
II. Whether the trial court abused its discretion when it imposed a public defender user fee as a condition of her probation without making a determination of her ability to pay; and
III. Whether the public restitution work component of Bex's sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm. * * *

MATHIAS, J., concurs,
SULLIVAN, Sr.J., concurs in part and dissents in part with separate opinion. [that begins, at p. 18 of 22] I concur in the first portion of the majority's opinion as to Part I, Right to Jury Trial. I respectfully dissent, however, with regard to the majority's holding that the waiver by counsel, rather than by the defendant herself, was effective and binding upon the defendant.

Further, I respectfully disagree with the decision reached by a panel of this Court in Judy v. State, 470 N.E.2d 380 (Ind. Ct. App. 1984). More particularly, I am unable to agree with the implication of that opinion, as adopted by the majority in the case before us, to the effect that consent not by the defendant but rather by counsel to a trial by a jury of fewer than six persons does “not involve a fundamental right [of the defendant]” and that it is “merely a matter of trial procedure.”

NFP civil opinions today (1):

Garry Coleman v. Department of Local Government Finance (NFP)

NFP criminal opinions today (2):

A.B. v. State of Indiana (NFP)

Marc Van Rowland v. State of Indiana (NFP)

Posted by Marcia Oddi on August 22, 2011 12:41 PM
Posted to Ind. App.Ct. Decisions