Monday, October 31, 2011
Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)
For publication opinions today (4):
In Thomas J. Ostrowski and Phyllis Ostrowski v. Everest Healthcare Indiana, Inc., d/b/a Merrillville Dialysis Center, and Family Mobile Medical Services, Inc., an 11-page opinion, Judge Crone writes:
As a man was reaching to open a door, an EMT exited through the door. The man's hand was injured. The man brought a negligence action against the owner of the building and the EMT's employer. A jury found in favor of the defendants and against the man. The man appeals, presenting three arguments: (1) the trial court erred in giving a final jury instruction on sudden emergency where there was insufficient evidence to support the instruction; (2) the trial court erred in permitting defendants' expert witnesses to testify where defendant failed to timely disclose his expert witnesses; and (3) the trial court erred in permitting a lay witness to testify as an expert witness. Having received very little of the trial transcript, we conclude that on the record before us, we cannot say that the trial court erred in giving the sudden emergency instruction or in permitting defendants' expert witnesses to testify. We further conclude that the lay witness did not improperly testify as an expert witness. Finding no error, we affirm.
In Lorenzo Surrisi, Individually and d/b/a City Tavern and Joette Surrisi, Individually and d/b/a City Tavern v. James D. Bremner, an 8-page opinion, Judge May writes:
Lorenzo and Joette Surrisi, individually and as owners of City Tavern, appeal the trial court's “Order on Effect of Sheriff's Sale,” which stated that the Surrisis' real and personal business property were sold at a sheriff's sale to James Bremner, as co-owner of M & J Lakeshore, LLC. The Surrisis submit various issues for our review, but we find one dispositive issue that the trial court erred when it affirmed the Sheriff's Bill of Sale which included the business personal property when that property was not listed as an item offered for sale in the Notice of Sheriff's Sale. * * *In Joseph Simmons v. State of Indiana , a 13-page opinion, Judge Mathias writes:
The Surrisis knew their personal property could be subject to a sheriff's sale, but the notice of this sale listed only the real property. Nothing in the settlement agreement requires that the real and personal property be sold at the same sale, so a person reading the Notice, even one aware of the Agreed Judgment, would presume that only the real property was to be sold. Accordingly, we reverse and remand for vacation of the portion of the court's order indicating the Sheriff's Sale included the business personal property. On remand, the trial court should determine the amount of compensation due to the Surrisis for the loss of their business personal property. Affirmed in part, reversed in part, and remanded.
[Issue I is] Whether Simmons's conviction for OWI, which was enhanced to a Class C felony because of a prior OWI conviction, constitutes an ex post facto violation because his prior conviction occurred before the enactment of the enhancement statute. * * *In Luigi Amalfitano v. State of Indiana, a 7-page opinion, Judge May writes:
Simmons is not being re-punished for his prior crime, nor has the penalty for his prior crime been enhanced. He is simply being punished as a recidivist based upon his most recent act of OWI. And he is being punished under the version of the statute which was effective at the time he committed his most recent OWI. See Collins v. State, 911 N.E.2d 700, 708 (Ind. Ct. App. 2009) (noting general rule that the law in effect at the time the crime was committed is controlling), trans. denied. * * *
Wallace v. State, 905 N.E.2d 371 (Ind. 2009) is distinguishable from the facts before us. * * *
Simmons's conviction for Class C felony OWI does not constitute an ex post facto violation, the State presented sufficient evidence to support Simmons‟s conviction for Class C felony OWI, and Simmons's eight-year sentence is not inappropriate in light of the nature of the offense and the character of the offender.
Amalfitano argues the trial court abused its discretion by relying on improper aggravating circumstances and his sentence is inappropriate given his character and the nature of his offense. * * *NFP civil opinions today (3):
That he could lock a sixty-five year old woman with dementia in a closet for more than six months, keeping her barely alive, so that he could steal her social security checks and prescription medications, which he used to satisfy his own addiction, does not speak well of his character. Nor does his knowingly permitting his children, one of whom was only twelve-years-old, to physically assault that woman on a daily basis suggest his character is upstanding. In sum, nothing about Amalfitano’s character suggests his forty-six year sentence is inappropriate.
Given Amalfitano’s lengthy criminal history and the egregious nature of his crimes, we cannot say his sentence is inappropriate. Accordingly, we affirm.
NFP criminal opinions today (6):
Posted by Marcia Oddi on October 31, 2011 01:51 PM
Posted to Ind. App.Ct. Decisions