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Tuesday, July 31, 2012

Ind. Decisions - Supreme Court issues three (now five) today

In Anthony H. Dye v. State of Indiana, a 16-page, 4-1 opinion, Justice Sullivan writes:

Anthony Dye was convicted of unlawful possession of a firearm by a serious violent fel-on (“SVF”) and found to be a habitual offender. We hold that this constituted an impermissible double enhancement and therefore vacate the habitual-offender enhancement. We affirm his conviction of unlawful possession of a firearm by an SVF and his sentence for that offense. * * *

Dye raised four issues on appeal, all of which were rejected by the Court of Appeals in a 2-1 opinion. Dye v. State, 956 N.E.2d 1165 (Ind. Ct. App. 2011). First, the court held that the double enhancement was permissible. Id. at 1169-70. Second, it rejected Dye’s Batson challenge on grounds that he had not made a prima facie showing of discrimination and, in any event, that the State had offered a sufficient race-neutral reason. Id. at 1170-71. Third, it held that he had waived review of his claim that the trial court erred in denying his motion for a mistrial. Id. at 1171-72. Lastly, the court held that Dye’s 50-year sentence with 15 years suspended was appropriate. Id. at 1172-73. Judge May dissented, agreeing with Dye that he had been subject to an impermissible double enhancement. Id. at 1173-76 (May, J., dissenting). * * *

Dye maintains that tacking the habitual-offender enhancement on to the sentence for unlawful possession of a firearm by an SVF constitutes an impermissible double enhancement. This case is yet another chapter in the ongoing dialogue among this Court, the Court of Appeals, and the Legislature concerning multiple sentencing enhancements for recidivist offenders. A brief review of this dialogue is helpful in resolving Dye’s claim. * * *

We conclude that the trial court erred in denying Dye’s motion to dismiss the habitual-offender allegation. We thus vacate the 30-year enhancement that the trial court imposed under the general habitual offender statute. * * *

We vacate Dye’s habitual-offender enhancement. We also summarily affirm the decision of the Court of Appeals that an executed term of 20 years’ imprisonment is not inappropriate. We remand to the trial court with instructions to enter an order sentencing Dye to an executed term of 20 years.

Rucker and David, JJ., concur.

Dickson, C.J., concurs, noting that, notwithstanding Justice Massa's informative and persuasive dissent, I prefer to adhere to our existing controlling precedent of Mills v. State, 868 N.E.2d 446 (Ind. 2007), to which the Legislature has not responded with any contrary explicit legislative direction.

Massa, J., dissents with separate opinion. [which begins on p. 8 of 16, and concludes] The courts of this state communicated to the General Assembly what was, and was not, permissible with respect to double enhancements. Several times, the General Assembly has responded. I believe their 2001 response amending the habitual offender statute shows first that the SVF statute is not a progressive penalty statute, and second that, even if the SVF statute were still subject to the general rule against double enhancement, there is explicit legislative direction permitting an adjudicated serious violent felon to be subject to additional enhancement under the general habitual offender statute. Accordingly, I dissent.

In Shepherd Properties Co., d/b/a Shepco Commercial Finishes v. International Union of Painters and Allied Trades, District Council 91, an 11-page, worth reading in full, 3-2 opinion, Justice David writes:

In this case, a plaintiff prevailed on its Access to Public Records Act claim against a public agency and an intervening private party. As required by statute, the trial court awarded the plaintiff attorney’s fees.

The fees were awarded against both the public agency and intervening private party, jointly and severally. The private party argued that the Access to Public Records Act does not contemplate the award of attorney’s fees against an intervening private party and that only the public agency should be liable for the fees.

We hold that the Access to Public Records Act, in light of the legislature’s liberal-construction mandate and the statute’s underlying policy, permits the award of attorney’s fees against an intervening private party. We further hold that, in this case, the trial court did not abuse its discretion in its apportionment of liability. * * *

ShepCo appealed. The Court of Appeals held that a private entity like ShepCo is not liable for attorney’s fees under the APRA and that Township, the public agency, was solely liable. Shepherd Props. Co. v. Int’l Union of Painters, 950 N.E.2d 321, 325 (Ind. Ct. App. 2011). On rehearing, the Court of Appeals acknowledged two prior Court of Appeals cases that stated that a private party may be liable for the attorney’s fees of a party prevailing in an action to compel disclosure under the APRA. Shepherd Props. Co. v. Int’l Union of Painters & Allied Trades, Dist. Council 91, 955 N.E.2d 208, 209 (Ind. Ct. App. 2011). But the Court of Appeals noted that the “APRA does not include language providing for payment of attorney’s fees by an intervenor, and will not write into the statute such a provision.” Id. (emphasis omitted). We granted transfer.

We hold that private parties may be held liable for a substantially prevailing plaintiff’s attorney’s fees under the APRA. We also hold that the trial court did not abuse its discretion in awarding the fees against the public agency and intervening private entity, jointly and severally.

We affirm the trial court’s award of attorney’s fees to Union and remand to the trial court to determine what additional attorney’s fees the Union incurred under the APRA as a result of ShepCo’s appeal.

Sullivan and Rucker, JJ., concur.

Dickson, C.J., and Massa, J., dissent without opinion.

ILB: It is disappointing that in this important case construing the public records law, both C.J. Dickson and J. Massa elected to take the rare route of dissenting "without opinion."

In The Presbytery of Ohio Valley, Inc., d/b/a The Presbytery of Ohio Valley, d/b/a Ohio Valley Presbytery, et al. v. OPC, Inc., f/k/a Olivet Presbyterian Church, Inc., et al., an 18-page, 3-2 opinion, Chief Justice Dickson writes:

This case involves a property dispute between an individual church congregation, the Olivet Presbyterian Church ("Olivet"), and the denominational organization with which it was previously affiliated, the Presbyterian Church (U.S.A.) ("PC(USA)"), and the latter's subsidiary organizations, the plaintiffs in this action—the Presbytery of Ohio Valley and the Synod of Lincoln Trails of the Presbyterian Church (U.S.A.), Inc. (collectively, "Presbytery"). The trial court granted summary judgment rejecting the Presbytery's claims of express and implied trust and holding that the disputed property is solely owned by Olivet. The Presbytery appealed both the denial of its motion for summary judgment and the granting of Olivet's motion. The Court of Appeals reversed the trial court and granted summary judgment in favor of the Presbytery. Presbytery of Ohio Valley, Inc. v. OPC, Inc., 940 N.E.2d 1188, 1197 (Ind. Ct. App. 2010). We granted transfer, thereby vacating the opinion of the Court of Appeals. Ind. App. R. 58(A)(2). We hold that genuine issues of material fact arise from the inferences flowing from the stipulated designated evidence and that neither Olivet nor the Presbytery is entitled to the full relief sought in their respective motions for summary judgment. * * *

Conclusion. We hold that neither the Presbytery nor Olivet are entitled to summary judgment com-pletely resolving this case in their favor. Genuine issues of disputed fact, resulting from varying inferences possible from the designated evidence, must be resolved at trial rather than on sum-mary judgment. With respect to the Presbytery's claim of express trust, the designated evidence and its reasonable inferences show that there is no genuine issue of fact and that, as a matter of law, Olivet did not create an express trust upon its property in favor of the Presbytery or the PC(USA). As to the Presbytery's claim of implied resulting trust, reasonable inferences are pos-sible and thus produce a genuine issue of material fact regarding the requisite unequivocal intent of Olivet to create a trust. This cause is remanded to the trial court for further proceedings con-sistent with this opinion.

Rucker and David, JJ., concur.

Sullivan and Massa, JJ., dissent, believing the decision and analysis of the Court of Appeals in this case, 940 N.E.2d 1188 (Ind. Ct. App. 2010), to be correct.

In Sean Thomas Ryan v. Dee Anna Ryan, a 17-page, 5-0 opinion, Justice Sullivan writes:
When Sean and Dee Anna Ryan divorced, they agreed to sell two properties they owned and divide the proceeds, subject to a proviso that neither party was required to accept a sale yielding net proceeds below specified minimums. When the properties could not be sold at or above the specified minimums, Dee Anna refused to waive the proviso. She was entitled by law to do so. * * *

As of May 14, 2010, neither of the properties had sold so Sean filed a Motion for Relief from Judgment pursuant to Indiana Trial Rule 60(B)(8), seek-ing a court order that the properties be sold at “prevailing fair market value and the Private Agreement be declared of no further force and effect.”

The trial court denied Sean’s request, but the Court of Appeals reversed and remanded for the trial court to hold an evidentiary hearing on Sean’s motion, Ryan v. Ryan, 946 N.E.2d 1191 (Ind. Ct. App. 2011), reh’g denied. We granted transfer, Ryan v. Ryan, 962 N.E.2d 651 (Ind. 2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A). * * *

We think the legal culture in Indiana is past the point where we could realistically say that Trial Rule 60(B) is not available when a dispute arises over a settlement agreement or property-division order. But we do offer several concluding observations in this regard.

Like all of our Trial Rules, Trial Rule 60(B) is a rule of procedure; it does not confer any substantive right on a party that invokes it. While courts sometimes say that Trial Rule 60(B) “gives courts equitable power,” that is not strictly true. Rather, Trial Rule 60(B) gives the court a procedural mechanism to exercise power that it derives from substantive law: from equity, or from common law, or from a statute, or from a constitution. This is important because it means that a court’s exercise of power under Trial Rule 60(B) is subject to the limitations of the substantive law itself.

We think it unlikely that a court can invoke equity to overcome the mandate of a statute including, in particular, the statutory prohibitions on courts modifying settlement agreements and property-division orders that we have been discussing in this opinion. But this does not always oust the court from modifying a settlement agreement or property-division order; it only prevents the court from doing so in the exercise of equity. We think that the purpose of the statutory prohibitions on modification – and we think the case law strongly reinforces this – requires a court to approach any dispute over a settlement agreement or property-division order as a contract dispute, subject to the rules of contract law. * * *

We conclude by saying that, in writing this opinion, we have been struck by the recurrence of several fact patterns that have been avoidably problematic – the use of specific dollar amounts rather than percentages, the failure of a QDRO’s terms to conform to ERISA requirements, the failure to provide a contingency if the marital residence cannot be sold – and trust that practitioners and judges alike will contemplate them in their work as well.

Conclusion. We affirm the judgment of the trial court.

In James C. Purcell v. Old National Bank, a 13-page, 3-2 opinion, Justice David writes:
This case involves a trial court’s issuance of a directed verdict under Trial Rule 50(A). The issue presented in this case is whether the trial court abused its discretion under Rule 50(A) in its determination that the evidence presented by Purcell was insufficient to merit presentation of the evidence to the jury. We hold that the trial court properly exercised its discretion and affirm the ruling of the trial court in all respects. * * *

The trial court granted Old National’s motion for judgment on the evidence pursuant to Indiana Trial Rule 50(A). The Court of Appeals reversed, finding that Stein’s interrogatory answer constituted sufficient evidence to preclude an entry of judgment on the evidence, despite evidence to the contrary at trial, including an adamant denial from Stein that the interrogatory was incorrect. Purcell v. Old Nat. Bank, 953 N.E.2d 527, 532 (Ind. Ct. App. 2011). * * *

The Court finds that there was not sufficient evidence presented in this case to withstand a motion for judgment on the evidence on Purcell’s claims of fraud, deception, and tortious interference with contract. Accordingly, the trial court’s grant of Old National’s motion under Rule 50(A) is affirmed. Furthermore, Purcell’s relationship with Old National as a subordinate creditor did not give rise to a duty of care required to prove Purcell’s claims of negligence and constructive fraud, and the trial court did not abuse its discretion by denying Old National’s request for costs and attorney’s fees.

Sullivan, and Massa, JJ., concur.

Rucker, J., dissents in part and concurs in result in part with separate opinion in which Dickson, C.J., concurs. [J. Rucker's opinion begins on p. 11 of 13] I respectfully dissent to Section I of the majority opinion. The majority affirms the trial court’s grant of Old National’s motion for judgment on the evidence. But with respect to actual fraud and tortious interference with contract it does so on grounds the trial court did not reach, and more importantly conflicting inferences from the evidence before the jury precludes judgment on the evidence for these two claims.

Posted by Marcia Oddi on July 31, 2012 11:37 AM
Posted to Ind. Sup.Ct. Decisions