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Tuesday, August 14, 2012

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In In Re: Rueth Development Company, An Indiana Limited Partnership , a 35-page opinion, Judge Riley writes:

Appellants raise eight issues in this consolidated appeal, three of which we find dispositive and restate as the following:
(1) Whether the trial court abused its discretion by granting Appellees’ T.R. 60(B) motion to vacate the trial court’s dismissal of RDC’s dissolution proceedings;
(2) Whether the trial court abused its discretion in allowing Appellees to pursue their claims against Appellants as a derivative action under Ind. Code § 23-16-11-1; and
(3) Whether the trial court abused its discretion by granting a preliminary injunction enjoining RDC’s capital distributions and restricting its payment of attorney fees. * * *

Based upon the foregoing, we conclude that (1) the trial court did not abuse its discretion by granting Appellees relief under T.R. 60(B); (2) the trial court abused its discretion in allowing Appellees to pursue their claims as a derivative action; and (3) the trial court did not abuse its discretion by granting a preliminary injunction on capital distributions and payment of attorney fees. Affirmed in part, reversed in part, and remanded with instructions to the trial court to continue dissolution proceedings.

In Harold O. Fulp, Jr. v. Nancy A. Gilliland, Individually and as Successor Trustee of the Ruth E. Fulp Revocable Trust Dated June 29, 2005, a 17-page opinion, Judge Riley writes:
Appellant-Plaintiff, Harold O. Fulp, Jr. (Harold), appeals the trial court’s denial of his request for specific performance of a purchase agreement which he entered into with Ruth E. Fulp (Ruth) and which was rescinded by Appellee-Defendant, Nancy A. Gilliland (Gilliland), Individually and as Successor Trustee of the Ruth E. Fulp Revocable Trust. We affirm in part and reverse in part.

Harold raises five issues on appeal, which we consolidate and restate as the following two issues:
(1) Whether Ruth, as the settlor, trustee, and sole lifetime beneficiary of the Ruth E. Fulp Revocable Trust, could properly execute a purchase agreement for the sale of the Trust property, thereby divesting the Trust; and
(2) Whether the trial court erred by determining that Gilliland did not tortiously interfere with the purchase agreement when she rescinded the agreement upon becoming successor trustee. * * *

Based on the foregoing, we conclude that Ruth, as the settlor, of the Trust could properly execute a purchase agreement for the sale of the Trust property and Gilliland did not tortiously interfere with the purchase agreement when she rescinded the purchase agreement upon becoming successor trustee.

In Andrew Stetler v. State of Indiana, a 10-page opinion, Chief Judge Robb writes:
Following a jury trial, Andrew Stetler was found guilty of two counts of child molesting, both Class A felonies, and admitted to being an habitual offender. He was sentenced to a total of ninety years. Stetler raises two issues for our review: whether the evidence presented was sufficient to sustain one of Stetler’s convictions for child molesting, and whether Stetler’s ninety-year aggregate sentence is inappropriate in light of the nature of the offenses and Stetler’s character. Concluding that sufficient evidence was presented and the sentence is not inappropriate, we affirm.
In Carlin Iltzsch v. State of Indiana , a 13-page, 2-1 opinion, Judge Mathias writes:
Carlin Iltzsch (“Iltzsch”) appeals following his conviction for Class B felony burglary. On appeal, Iltzsch argues that the trial court abused its discretion in ordering him to pay restitution in the amount of $711.95. We reverse and remand with instructions. * * *

The State had a full and fair opportunity to obtain and present evidence concerning Whittemore’s actual loss at Iltzsch’s sentencing hearing, but failed to do so. We believe that allowing the State to conduct a new restitution hearing and to present additional evidence concerning the loss would allow the State an inappropriate second bite at the apple. We therefore conclude that the State is not entitled to hold a new restitution hearing, and remand with instructions for the trial court to vacate its restitution order. We acknowledge that Whittemore must now resort to civil process if he wishes to seek redress for his losses. However, this remedy will require nothing more than what the law requires: sufficient, admissible evidence to support his claims. Reversed and remanded with instructions.

ROBB, C.J., concurs.
BAILEY, J., dissents with opinion. [a quote] While I agree with the majority that there is insufficient evidence to support the amount awarded in restitution, I do not agree with its conclusion that the State is not entitled to conduct a new restitution hearing. I therefore respectfully dissent.

NFP civil opinions today (2):

In the Matter of the Paternity of I.B., R.P. v. M.B., As Next of Friend of I.B. (NFP)

C. Dennis Wegner & C. Dennis Wegner & Associates, Professional Corporation v. Michael S. Miller, D.O., and Cohen Garelick & Glazier (NFP)

NFP criminal opinions today (6):

Richard D. Boring v. State of Indiana (NFP)

Brandon Rhonte McDonald v. State of Indiana (NFP)

Stacey Johnson v. State of Indiana (NFP)

Sadeeq Danbala v. State of Indiana (NFP)

Billy D. Taylor v. State of Indiana (NFP)

Stephen R. Harvey, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on August 14, 2012 10:54 AM
Posted to Ind. App.Ct. Decisions