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Tuesday, September 11, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

For publication opinions today (5):

Phillip A. Collins v. HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series Act 2004-HE3, an 11-page opinion, appears to be Judge Pyle's first for-publication opinion since joining the Court of Appeals:

Phillip A. Collins (“Collins”) appeals the trial court’s grant of summary judgment in favor of HSBC Bank USA, N.A., As Trustee for Home Equity Loan Trust Series Act 2004-HE3 (“HSBC”). * * *

Under the circumstances of this case, where Collins does not contest the application of the collateral estoppel doctrine, has not shown an absence of a full and fair opportunity to litigate the issue in the chosen federal court system, and has not shown how the use of estoppel is unfair, we conclude that he is estopped from asserting claims previously lost and litigated. Affirmed.

In Pac-Van, Inc. v. Wekiva Falls Resort, a 5-page opinion, Sr. Judge Shepard writes:
When the losing party pays a judgment in full, does post-judgment interest keep running on the whole amount until the trial court calculates the amount due for the period between the judgment and the payment? The trial court here said yes. The statute and the cases are otherwise. * * *

We reverse the trial court’s award of post-judgment interest and remand with instructions to issue a new order reflecting $1076.09 in interest on the verdict and $919.43 in interest on the fees, for a total of $1995.52.

In Term. of Parent-Child Rel. of: Q.M. and E.M., Minor Children, B.M., Father v. Indiana Dept. of Child Services, an 8-page opinion, Judge Brown concludes:
An involuntary termination petition must allege, and the State must prove by clear and convincing evidence, that the child was either removed from the parent for at least six months under a dispositional decree or removed from the family home at least fifteen of the most recent twenty-two months “at the time the involuntary termination petition was filed.” D.D., 962 N.E.2d at 74; see also Ind. Code § 31-35-2-4(b)(2)(A). Based on the foregoing, it is clear that DCDCS failed to satisfy the mandates of Ind. Code § 31-35-2-4(b)(2)(A). Thus, the trial court committed reversible error in granting DCDCS’s involuntary termination petitions.

As DCDCS alleged, but failed to prove removal of the children according to the dictates of Ind. Code § 31-35-2-4(b)(2)(A), the trial court’s judgment terminating Father’s parental rights to Q.M. and E.M. must be reversed, and this case remanded for further proceedings consistent with this opinion.

In Aaron Young v. State of Indiana, a 7-page opinion, Judge May writes:
Aaron Young appeals his conviction of and sentence for three counts of Class A felony child molestation. He presents two issues for our review:
1. Whether the State presented sufficient evidence to prove he committed Class A felony child molestation; and
2. Whether the trial court erred when it found him to be a credit restricted felon. * * *

Young argues inconsistencies between A.Y.’s testimony at trial and her testimony during a deposition make her testimony incredibly dubious. “The fact that a witness gives trial testimony that contradicts earlier pre-trial statements does not necessarily render the trial testimony incredibly dubious.” Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002). * * * As a conviction of child molesting may rest on the uncorroborated testimony of the victim, Barger v. State, 587 N.E.2d 1304, 1308 (Ind. 1992), reh’g denied, we hold A.Y.’s testimony was not incredibly dubious. * * *

Young argues the trial court erred when it determined he was a credit restricted felon because the acts alleged in Count II did not occur prior to A.Y.’s twelfth birthday. We agree. * * *

We hold A.Y.’s testimony was not incredibly dubious, and the State presented sufficient evidence to prove Young committed two counts of Class A felony child molestation. However, the trial court erred when it declared Young to be a credit restricted felon because the State did not prove he engaged in sexual intercourse with A.Y. when she was less than twelve years old. Accordingly, we reverse the determination that Young is a credit restricted felon, and remand for recalculation of Young’s credit time.

Brittany L. McConniel v. State of Indiana

NFP civil opinions today (5):

Term. of Parent-Child Rel. of: Z.G. (Minor Child), and D.G. (Father), and T.S. (Mother) v. The Indiana Dept. of Child Services (NFP)

William Adams and Patricia Adams v. Chase Home Finance, LLC (NFP)

Lake County Trust Co., as Trustee for Lake County Trust 5434 v. United Consumers Club, Inc. (NFP)

In the Matter of a Minor Child in Need of Services, T.C., Minor Child, M.C., Mother v. Indiana Dept. of Child Services (NFP)

Zimmer, Inc. and Zimmer Dental, Inc. v. Jason Young, Renae Salvitti, and Implant Direct Sybron Manufacturing, LLC d/b/a Implant Direct Sybron Intl. (NFP)

NFP criminal opinions today (6):

J.Z. v. State of Indiana (NFP)

J.G. v. State of Indiana (NFP)

Argelio Gonzales v. State of Indiana (NFP)

Joseph V. Haas v. State of Indiana (NFP)

Dennis Yerk v. State of Indiana (NFP)

Robert A. Lesure v. State of Indiana (NFP)

Posted by Marcia Oddi on September 11, 2012 11:20 AM
Posted to Ind. App.Ct. Decisions