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Monday, August 06, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In PNC Bank, National Association, et al. v. LA Development, Inc., Andrew L. Arbuckle, et al. and INTA, LLC v. PNC Bank, National Association, et al. , a 13-page opinion, Sr. Judge Darden writes:

Issue. Whether the trial court abused its discretion in denying PNC’s motion for the mandatory appointment of a receiver in a mortgage foreclosure action. * * *

Based upon our construction of the loan documents and our interpretation of the extrinsic evidence, we must conclude that the Bank did not relinquish all of its rights and remedies in the Subordination Agreement. Because the Bank has shown that the requisite provisions of Indiana Code section 32-30-5-1 have been satisfied, and the Bank did not relinquish its mandatory right to the appointment of a receiver, we conclude that the trial court’s order is erroneous.

Conclusion. We reverse and remand with instructions that the trial court vacate its order and grant the Bank’s request for the appointment of a receiver.

Donald Gregory Huls v. State of Indiana - the validity of a claim of self defense is central to this 13-page opinion by Sr. Judge Barteau, who writes:
A valid claim of defense of oneself, another person, or one’s property is legal justification for an otherwise criminal act. Pursuant to the governing statute:
A person:

(1) is justified in using reasonable force, including deadly force, against any other person; and
(2) does not have a duty to retreat;

if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle.

Ind. Code § 35-41-3-2(d) (2006). Nevertheless, a defendant is not justified in using force if “the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.” Ind. Code § 35-41-3-2(g)(3). Thus, in order to prevail on a claim of self-defense, the defendant must show that he or she: (1) was in a place where he or she had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm. Wilson, 770 N.E.2d at 800. Furthermore, an initial aggressor must withdraw from the encounter and communicate the intent to do so to the other person before he or she may claim self-defense. Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans. denied.

Here, Huls contends that the evidence establishes that he shot at the teenagers because he believed it necessary to protect himself and his property. We disagree. Two of the teenagers stated that they never entered his property. Furthermore, the police found a hat belonging to one of the teenagers in the wooded area next to Huls’ property rather than on Huls’ property. In any event, Huls opened fire without identifying his target, and after he opened fire he did not attempt to end the encounter and communicate his intent to do so, in violation of the statute. See Ind. Code § 35-41-3-2(g)(3). To the contrary, Huls continued to shoot even after C.M. shouted at Huls to stop firing and stated that he and his companions were leaving. Thus, the evidence demonstrates that Huls instigated and participated in the violence, and the State carried its burden of negating Huls’ claim of self-defense.

ILB: Notably, this is the same provision cited in the Supreme Court's Barnes decision.

NFP civil opinions today (2):

Preload, Inc. v. Hammond Water Works Department and Jeffrey Porter General Contractors, Inc. (NFP)

Paul Edward McMinn v. Lisa Stephanie McMinn (NFP)

NFP criminal opinions today (2):

Janet M. Wright v. State of Indiana (NFP)

Brian L. Millard v. State of Indiana (NFP)

Posted by Marcia Oddi on August 6, 2012 11:43 AM
Posted to Ind. App.Ct. Decisions