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Thursday, November 17, 2011

Ind. Decisions - Court of Appeals issues 6 today (and 5 NFP)

For publication opinions today (6):

In Bren Simon, as Personal Rep. of the Estate of Melvin Simon; and Bren Simon, as Trustee of the Melvin Simon Family Enterprises Trust Agreement v. Deborah J. Simon, Simon Property Group, Inc., et al., a 21-page, 2-1 opinion, Judge Najam writes:

Melvin Simon died in 2009, and Bren Simon, his surviving spouse, was named Personal Representative of the Estate of Melvin Simon (“the Estate”) and Trustee of the Melvin Simon Family Enterprises Trust Agreement (“the Trust”). Bren brings this interlocutory appeal as Personal Representative and Trustee from the trial court's order denying her notice of objection in which she requested that the trial judge disqualify himself from a will and trust contest and a declaratory judgment action, both cases pending in the Hamilton Superior Court and which have been consolidated in this interlocutory appeal. The trial court also granted motions by Deborah Simon, Melvin's daughter, to remove Bren as Personal Representative and Trustee. The court then appointed a Successor Personal Representative and Trustee, who is not participating in this appeal. We conclude that when Bren was removed as Personal Representative and Trustee she lost her authority to pursue this appeal in a representative capacity, and Bren was not a party in her individual capacity in the trial court. Accordingly, we hold that Bren lacks standing to maintain this appeal in either a representative capacity or an individual capacity. Thus, we are without jurisdiction to consider this appeal on the merits, and we dismiss. * * *

MAY, J., concurs.
RILEY, J., dissents with separate opinion [that begins at p. 17 and that concludes] At the center of the dispute is the validity of the revised will, which will result in Bren either gaining or losing a considerable portion of her deceased husband's estate. When the presiding Judge in this battle hired the law firm who is also representing one of Bren's opposing parties in the Trust Dispute to defend his interests before the Indiana Judicial Qualifications Commission, it is understandable that Bren questioned the Judge's impartiality, and pursued Judge Hughes' refusal to recuse himself on appeal.

The majority's decision is a disservice to justice. Accepting the majority's premise that Judge Hughes' decision to remove Bren as Trustee and Personal Representative, standing alone, results in Bren losing standing in the current appeal, which was initiated prior to Judge Hughes' removal Order, a trial court could effectively shield itself from judicial scrutiny by removing or dismissing a party seeking the trial court's recusal. In reaching this conclusion, the majority clearly affirmed Appellees' argument which was raised as a red he9rring in their brief in order to obscure the pertinent issue before us. Unfortunately, the majority took the bait.

In Jane Doe v. Roman Catholic Archdiocese of Indianapolis, an 11-page opinion, Judge Baker concludes:
In sum, nothing in the record supports a conclusion that there was a fiduciary relationship between Doe and the Archdiocese. Doe did not place any special confidences in the Archdiocese or otherwise seek out a confidential relationship. In fact, Doe maintained an adversarial relationship and consulted with attorneys to provide her with guidance concerning her dealings with the Archdiocese. Therefore, because no fiduciary relationship existed, there can be no breach of fiduciary duty. As a result, the trial court properly entered summary judgment for the Archdiocese with regard to this claim.
In David Hoffman v. State of Indiana , a 6-page opinion, Judge Baker writes:
Here, we are confronted with whether punishment exacted by a branch of the United States Armed Forces on one of its members for conduct off-installation in Indiana prevents the State from prosecuting the individual for that same conduct. We are asked to conclude that it does without a complete record as to the nature of or grounds for the military punishment. In instances such as this, a complete record is essential not just to determine whether the military punishment was, in fact, for the same offense, but also because it may have been non-judicial in nature. Accordingly, where, as here, the defendant fails to provide a complete record, we decline to conclude that the action taken by the military prevents the State from prosecuting the defendant for the same conduct.

Appellant-defendant David Hoffman appeals the trial court’s denial of his motion to dismiss pursuant to Indiana Code section 35-41-4-5 (double jeopardy statute). More specifically, Hoffman argues that the trial court erred in determining that action taken by the United States Army (Army) did not bar the State’s charge of Operating a Motor Vehicle While Intoxicated,1 a class A misdemeanor. Because the State has already tried and convicted him on the charge, we consider whether Hoffman’s conviction violates the double jeopardy statute. Concluding that Hoffman has failed to show that the Army has already prosecuted him for the same offense, we affirm his conviction.

Lindell Patterson v. State of Indiana - "For all of these reasons, we conclude that the protective pat-down search of Patterson‟s person and the ensuing seizure of the marijuana from Patterson's pocket fell within the bounds of the Fourth Amendment to the United States Constitution. Patterson also asserts that the search and seizure violated his rights under Article 1, Section 11 of the Indiana Constitution, but he presents no authority or independent analysis supporting a separate standard under the Indiana Constitution. He has therefore waived any state constitutional claim."

In Larry Michael Caraway v. State of Indiana , a 15-page, 2-1 opinion, Judge Baker's dissent begins:

I respectfully dissent and part ways with the majority's view that the trial court “abused its discretion when it failed to acknowledge Caraway's guilty plea” as a mitigating factor. Thus, I do not believe that resentencing is required in this instance.
In Shawn Brent v. State of Indiana , a 14-page, 2-1 opinion, Chief Judge Robb concludes:
Insufficient evidence was presented as to Brent's possession of marijuana, and therefore we reverse his conviction of the same. The State concedes it did not present sufficient evidence to sustain his conviction of visiting a common nuisance, and we also reverse that conviction.

NFP civil opinions today (3):

Rissie M. Green v. Review Board of the Indiana Dept. of Workforce Development, and Covenant Care Indiana (NFP)

Leroy G. Meahl v. Donna J. Meahl (NFP)

In Re the Marriage of: Mary K. (Butler) Weir v. Steven J. Butler (NFP)

NFP criminal opinions today (2):

Cordell M. Wells v. State of Indiana (NFP)

Ralph Goodman v. State of Indiana (NFP)

Posted by Marcia Oddi on November 17, 2011 11:01 AM
Posted to Ind. App.Ct. Decisions