Monday, August 27, 2012
Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)
For publication opinions today (5):
In Wells Fargo Bank, N.A., Successor in interest to The Money Store Investment Corp., f/d/b/a First Union Small Business Capital v. Neal A. Summers, et al., a 35-page opinion on a petition for rehearing, Judge Brown writes:
Wells Fargo Bank, N.A. (“Wells Fargo”), successor in interest to The Money Store Investment Corporation, f/d/b/a First Union Small Business Capital, petitions for rehearing following our memorandum decision dismissing its appeal. In that decision, we concluded that the notice of appeal was untimely pursuant to Ind. Trial Rule 53.3 and Ind. Appellate Rule 9. In its petition for rehearing, Wells Fargo acknowledges that this court’s opinion was correct based upon the record it presented but states that the record was not complete. Wells Fargo subsequently filed a Verified Emergency Motion for Leave to Correct Clerk’s Record and Supplement Appendix, which this court granted. An amended notice of completion of the clerk’s record was also filed. Based upon the amended record, we conclude that Wells Fargo’s notice of appeal was timely, vacate our prior decision, and proceed to determine the issues raised by Wells Fargo in its initial brief. Wells Fargo raises five issues which we consolidate and restate as whether the trial court erred in determining the amount of Paula Phillips’s lien. We affirm in part and remand.In Joseph Meizelis v. Dana Durbin and Debra Durbin , a 9-page opinion, Judge Crone writes:
Dana and Debra1 Durbin's dissolution action has been pending since 2006. In 2010, Joseph Meizelis offered to purchase their farm, and he was permitted to intervene in the dissolution action. In an order dated March 23, 2011, the trial court determined that Dana could keep the farm property if he met certain financial obligations within thirty days; otherwise, he was to sell it to Meizelis. Dana filed a motion to correct error, and while the motion was pending, Dana and Debra reached a settlement agreement. Although their agreement was similar in many respects to the March 23, 2011 order, it did relax some of the obligations that Dana was required to meet if he wished to keep the farm property. Dana and Debra submitted an agreed judgment, and Dana dismissed his motion to correct error. Meizelis thereafter filed a lis pendens notice and a motion for relief from the agreed judgment on the grounds that he had not been given notice. The trial court denied Meizelis's motion. We conclude that the trial court properly found that Meizelis lacked a present interest in the real estate and could not prevent a settlement between Dana and Debra. Therefore, we affirm the judgment of the trial court and remand with instructions to strike Meizelis's lis pendens notice.In Mitzi Bosley v. Niktob, LLC, Design Industries, Inc., Peg Rail, Inc., and Originnovations, Inc., a 6-page opinion, Judge May writes:
NIKTOB, LLC, leased a building from Mitzi Bosley. It sued Bosley in Marion Superior Court 7 (the “environmental court”) over environmental issues and for breach of contract. Bosley subsequently brought, in Marion Superior Court 10 (the “ejectment court”), an independent ejectment action. NIKTOB counterclaimed, raising the same environmental and contract issues that were pending in the first lawsuit. Bosley moved in the ejectment court to dismiss the NIKTOB counterclaim. The ejectment court denied her motion to dismiss and granted summary judgment for NIKTOB on the issues it raised in its counterclaim. Bosley appeals those decisions, and we reverse. * * *In Robert Dowell v. State of Indiana , an 8-page opinion, Judge May writes:
NIKTOB’s environmental action and its counterclaim in Bosley’s ejectment action are at least substantially the same. All of the allegations NIKTOB made in the ejectment counterclaim previously had been asserted in the environmental action, and were repeated virtually verbatim in the ejectment counterclaim. In its motion to consolidate in the environmental action, NIKTOB correctly noted the environmental action and the ejectment action “involve common questions of law and fact. Both actions involve the same parties (and their affiliates) and both actions involve claims relating to the parties’ respective property interests in the Bosley property and the rights of the parties under the lease.” * * *
NIKTOB’s counterclaim in the ejectment action should have been dismissed, and summary judgment for NIKTOB on the counterclaim issues was therefore improper. We accordingly reverse.
Robert Dowell appeals his conviction of Class A felony robbery resulting in serious bodily injury. He argues the trial court erred when it gave the jury an additional instruction after deliberations began, but did not call the jury back into the courtroom or re-read the rest of the instructions. We reverse and remand. * * *In Ian McCullough v. State of Indiana , a 48-page, 2-1 opinion, Judge Crone writes:
[O]nce deliberations commence, the trial court should not give additional instructions. Crowdus v. State, 431 N.E.2d 796, 798 (Ind. 1982). This rule prevents the trial court from giving special emphasis, inadvertent or otherwise, to a particular issue in the case, and thus avoids the possibility that the additional instruction might tell the jury what it ought to do concerning that issue. * * *
In the case before us, as in Graves, the jury was apparently not prepared to conclude its deliberations until its question was answered. The court gave it the additional instruction on accomplice liability without re-reading the rest of the instructions, and the jury then returned a guilty verdict. That procedure gave that instruction “the type of improper emphasis that the rule of Crowdus aims to alleviate.” Graves, 714 N.E.2d at 727, because the trial court did not re-read the entire set of final instructions contemporaneously with the giving of the additional instruction. Id. As such an additional instruction tended to “emphasize that issue as being of primary importance and . . . to tell the jury what it ought to do,” Hero, 765 N.E.2d at 603, we must reverse and remand for a new trial.
Ian McCullough was convicted of two counts of class A felony child molesting and one count of class C felony child molesting. His convictions were affirmed on direct appeal, and he then sought post-conviction relief (“PCR”), arguing that he received ineffective assistance of trial counsel. The post-conviction court denied McCullough's PCR petition.NFP civil opinions today (3):
On appeal, McCullough argues that his trial counsel was ineffective (1) in offering and failing to object to evidence of prior uncharged misconduct and failing to object to the prosecutor's references to that misconduct; (2) in failing to adequately cross-examine the State's investigators; (3) in failing to make an offer of proof when the trial court excluded his expert's testimony; (4) in failing to present expert evidence of child memory; (5) in failing to present certain evidence; and (6) in failing to tender or request the jury instruction mandated by the Protected Person Statute. We conclude that McCullough has failed to carry his burden to show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Therefore, we affirm the post-conviction court's judgment. * * *
MAY, J., concurs.
BROWN, J., dissents with separate opinion. [which begins at p. 40 of 48, and concludes] While some of the errors by trial counsel may not individually be sufficient to prove ineffective representation, when viewed cumulatively counsel's overall performance fell below the prevailing professional norms, and in light of the fact that the State's case rested almost entirely on L.D.'s statements, there is a probability sufficient to undermine confidence in the outcome that, but for trial counsel's errors, the result of the proceeding would have been different. Thus, I conclude that McCullough was denied the effective assistance of counsel. See Smith v. State, 511 N.E.2d 1042, 1046 (Ind. 1987) (“In the case before us the accumulation of errors mandates a finding of ineffective assistance.”); Williams v. State, 508 N.E.2d 1264, 1268 (Ind. 1987) (“It is the compilation of errors and omissions by counsel which creates the necessity for reversal in this case.”).
For the foregoing reasons, I respectfully dissent and would reverse the post-conviction court's denial of McCullough's petition for relief.
NFP criminal opinions today (7):
Posted by Marcia Oddi on August 27, 2012 10:45 AM
Posted to Ind. App.Ct. Decisions