« Ind. Decisions - More on 7th Circuit decision last week on Indiana sex offender registry | Main | Ind. Decisions - 7th Circuit decides one Indiana case today, vacating and remanding »

Tuesday, September 04, 2012

Ind. Decisions - Court of Appeals issues 3 (now 4) today (and 8 NFP)

For publication opinions today (4):

Hood's Gardens, Inc. v. Jason Young, Craig Meade d/b/a Discount Tree Excavation a/k/a D & E Tree Extraction

In Tommi Emerson Winn v. State of Indiana , a 9-page opinion, Sr. Judge Darden writes:

Tommi Emerson Winn appeals the trial court’s denial of his motion for bail bond reduction. We reverse and remand. * * *

In effect, by denying Winn the option of depositing cash or securities in an amount not less than ten percent of the bail, “the trial court condemned [him] to jail pending trial without explicitly ordering [him] to be held or articulating any reason for doing so.” While the severity of the thirteen charges arguably supports the setting of bail in the amount of $25,000, “the absence of any other factors suggesting [Winn] was a flight risk leads us to conclude the trial court should have granted” Winn’s request to deposit an amount not less than 10 percent of bail under Indiana Code section 35-33-8-3.2(a).

We reverse and remand with instructions that the trial court grant Winn’s motion.

FRIEDLADNER, J., concurs.
BROWN, J., concurs in part with separate opinion. [which reads] I concur in part with the majority and write separately to state that IC 35-33-8-3.2 cited in the opinion allows the trial court options in addition to granting Winn’s request to deposit an amount with the clerk of not less than 10 percent of the amount of bail. Specifically, IC 35-33-8-3.2(a)(1)(A) provides for execution of a bail bond with sufficient solvent sureties. Other parts of subsection (a)(1) allow for execution of a bond secured by real estate in the county, posting a real estate bond, or performing any combination of the four requirements described in that subsection. On remand I would not require that the trial court grant Winn’s motion but would allow the court the discretion afforded by IC 35-33-8-3.2.

In Heather N. Kesling v. Hubler Nissan, Inc. , a 17-page, 2-1 opinion, Sr. Judge Sharpnack writes:
Heather Kesling appeals the trial court’s order granting summary judgment to Hubler Nissan, Inc., on her Indiana Deceptive Consumer Sales Act, Indiana Crime Victims Relief Act, and fraud claims. We reverse and remand. * * *

Kesling now argues that the trial court erred because there are genuine issues of material fact as to whether: (1) Hubler made a representation that the Eclipse had the performance, characteristics, uses, or benefits (2) it did not have, (3) which Hubler knew or should reasonably have known it did not have.

As to the representation, the designated evidence shows that Hubler advertised the Eclipse for $2981 and described it as a “Sporty Car at a Great Value Price.” Kesling claims that a trier of fact could reasonably infer from this evidence that Hubler was representing that the vehicle was safe to operate.

Hubler responds that the advertisement is not actionable under the Act because it never stated that the vehicle was safe to operate. * * *

This evidence establishes a genuine issue of material fact as to whether Hubler knew or should reasonably have known that the Eclipse was unsafe to drive at the time Kesling purchased it.

We thus conclude that there are genuine issues of material fact as to whether Hubler made a representation that the Eclipse had the performance, characteristics, uses, or benefits it did not have, which Hubler knew or should reasonably have known that it did not have. The trial court therefore erred by granting summary judgment to Hubler on this claim. * * *

For the reasons stated, we reverse the trial court’s grant of summary judgment to Hubler on these claims and remand for further proceedings. Reversed and remanded.

DARDEN, Sr.J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [which begins, at p. 16] I believe the advertisement in question does not run afoul of the Indiana Deceptive Consumer Sales Act and therefore respectfully disagree that a question of fact remains that renders Kesling’s cause of action on that basis viable. * * *

Unlike the Majority, I cannot agree that “Sporty Car at a Great Value Price” says anything at all about the car’s drivability – much less that it warrants that the vehicle is in a condition such that it may be safely operated.

In Nathan S. Berkman v. State of Indiana, a 20-page opinion, Judge Bradford writes:
Appellant-Defendant Nathan Berkman appeals from his conviction of and sentence for Felony Murder. Berkman raises five issues, which we restate as follows:
I. Whether the trial court abused its discretion in denying Berkman’s motion to dismiss, which was made on the basis that the instant charge was barred by prohibitions against double jeopardy;
II. Whether the trial court abused its discretion in denying Berkman’s mistrial motion, which was made on the basis that the trial court abused its discretion in admitting certain testimony from a previous trial;
III. Whether the trial court abused its discretion in admitting certain deposition testimony; and
IV. Whether Berkman’s sixty-year executed sentence is inappropriately harsh.
We affirm.
NFP civil opinions today (0):

NFP criminal opinions today (8):

Dennis J. Rodenberg v. State of Indiana (NFP)

Damon T. Payne, Sr. v. State of Indiana (NFP)

Charles B. Dietzen v. State of Indiana (NFP)

Victoria Yates v. State of Indiana (NFP)

Olympia Shellman v. State of Indiana (NFP)

James W. Manhart v. State of Indiana (NFP)

Artrece D. Patterson v. State of Indiana (NFP)

Noble Potter v. State of Indiana (NFP)

Posted by Marcia Oddi on September 4, 2012 12:06 PM
Posted to Ind. App.Ct. Decisions