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Thursday, December 13, 2012

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Byram E. Dickes, Ruth E. Logar, Christopher S. Spiritoso, Gregory Spiritoso, Lindsey E. Dickes, Dickes Development Co., LLC, et al. v. Ronald D. Felger, and Shambaugh, Kast, Beck & Williams, LLP, an 8-page opinion, Judge Barnes writes:

Byram Dickes, Ruth Logar, Christopher Spiritoso, Gregory Spiritoso, Lindsey Dickes, Dickes Development Co., LLC, and Dickes Real Estate, LLC, (collectively, “Plaintiffs”) appeal the trial court’s grant of summary judgment to Ronald Felger and Shambuaugh, Kast, Beck & Williams, LLP (collectively, “Attorneys”). We affirm.

Plaintiffs raise three issues, which we consolidate and restate as whether the trial court properly determined that their attorney malpractice claim was barred by the statute of limitations. * * *

We agree that Plaintiffs here were aware of or could have discovered Attorneys’ alleged malpractice by the summer of 2006. Plaintiffs were aware that, despite the 1995 negotiations with the railroad and the deed, they in fact did not own the abandoned railroad right-of-way. Further, they were clearly aware that they had been damaged, as the right-of-way was interfering with their proposed development of the property. Although Plaintiffs were not able to definitively point to the wrong legal description on the deed as Attorneys’ exact error until the summer of 2007, they were aware of the issues with Attorneys’ work long before that time.

Plaintiffs also argue that the statute of limitations does not bar their claim because of Attorneys’ fraudulent concealment. * * * Even if Attorneys’ fraudulently concealed their error, Plaintiffs were still aware of the issues by the summer of 2006, and their March 2009 complaint was untimely. Consequently, we conclude that Plaintiffs’ claim was barred by the statute of limitations.

The trial court properly granted summary judgment to Attorneys because Plaintiffs’ attorney malpractice claim was barred by the statute of limitations. We affirm.

NFP civil opinions today (3):

Kerry Wagoner and Wagoner Trucking, Inc. v. Rugged Enterprises, LLC (NFP)

Roseanne Kwak v. Kimberly Overmyer and Marshall-Starke Development Center, Inc., West Bend Mutual Ins. Company (NFP)

Melissa L. Freyberger v. Duane L. Freyberger (NFP)

NFP criminal opinions today (7):

Scott J. Lunsford v. State of Indiana (NFP)

Uriah S. Swelfer v. State of Indiana (NFP)

Decarlos Connell v. State of Indiana (NFP)

Joseph Majors v. State of Indiana (NFP)

Daniel A. Sage v. State of Indiana (NFP)

Tyler P. Hogue v. State of Indiana (NFP)

Jaconiah Fields v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today

In Estate of Escobedo v. Officer Martin (ND Ind., Springmann), a 45-page opinion, Circuit Judge Manion writes:

In the early morning hours of July 19, 2005, Rudy Escobedo became suicidal and ingested cocaine. He dialed 911 and told the operator he had taken cocaine, had a gun to his head, and wanted to kill himself. An emergency response team was dispatched to negotiate with Escobedo and to try to get him to put down his weapon and leave his apartment volunopted to deploy a tactical response to remove Escobedo from his apartment, as they thought he presented a danger to the community around him. After deploying two volleys of tear gas into Escobedo’s seventh-floor apartment, a team of six officers wearing gas masks and other protective equipment broke into the apartment. The officers found him holed up in his closet with a gun to his head. The officers ordered him to put down the weapon, but Escobedo did not comply and was shot by two of the police officers. Escobedo’s Estate brought a § 1983 excessive force claim against the police and the City of Fort Wayne. After a variety of motions were filed and a partial summary judgment was granted and appealed, the case went to trial and the jury found in favor of the defendants. The district court also granted judgment as a matter of law in favor of the defendants after the jury entered its verdict. The Estate now appeals, and we affirm. * * *

For the foregoing reasons, we AFFIRM the jury verdict in favor the defendants, we AFFIRM both the district court’s grant of judgment as a matter of law on qualified immunity grounds to Officers Straub, Martin, and Brown, as well as the post-verdict grant to Deputy Chief Bender, Deputy Chief Lucker, Sgt. Hunter, and Lt. Zelt, and we AFFIRM the district court’s grant of summary judgment in favor of Officers Martin and Brown on the Estate’s excessive force claim.

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Responses to: A New Unwritten Policy on Late Brief Filings at the Indiana Court of Appeals?

The ILB has received several responses to Prof. Schumm's post from earlier today.

A Marion County judge writes:

Re: late filing on briefs:

There are many cites in our Indiana case histories that demonstrate our state prefers to address matters on the merits rather than on technicalities. Nearly all of our trial rules have annotations wherein our courts have said, essentially, merit matters over minutes. I concur in that. The only trial rule where that is not the case is T.R. 56 which sets a hard and firm deadline on the filing of a response to a motion for summary judgment. That hard rule, and the accompanying caselaw, in my opinion, can, and has, lead to unjust results. The trial rules, deadlines, etc are there for the purpose of “just, speedy, and inexpensive determination of every action”.

Moreover, they are “intended to discourage battles over the form of pleadings, …and prevent parties from losing a claim or defense because of a technical defect … A court is not bound to blindly follow these rules.” - Civil Trial Rule Handbook, 2010 Edition, Rule 1.

I think that unwritten allowance you cite follows the Indiana tradition of judging each case on its own facts and the merits. Everyone always wants everyone to play by the rules, but no one is perfect and mistakes do happen. The merits and justice of a litigant’s case, however, should not be ignored due only to a blown deadline. The lawyer who consistently flirts with this allowance; however, does so at his own peril. And the Courts are empowered and entrusted to draw that line on a case by case basis with the opportunity for review if necessary. The rule serves a purpose, but justice probably deserves a little more leeway.

Westfield Attorney Jill Acklin writes:
I had a case (01 A 02 - 1106 - CR – 00554) where the Supreme Court accepted the Appellee's "Petition to Transfer" that was filed one day late. The reason given for the late filing was that the Appellee overlooked the "leap day" this year and filed the Petition on March 1, not February 29. There was a Motion made by the Appellee to ask the Indiana Supreme Court to accept the late Petition which was granted over objection by me. So, it seems that in some situations, the Supreme Court will allow extensions as well, despite Appellate Rule 57's instruction that there are no extensions.
Karen Neiswinger, an Indianapolis attorney, writes:
Even for those situations in which no extension of time may be granted per the Trial or Appellate Rules, the proper relief is to file a motion for leave to file a belated brief. This motion sounds in equity, and therefore, the usual grounds for equitable relief must be shown. This is very appropriate for the reasons stated by the Marion County Judge whose remarks you published. Also, there is no deadline for the Court of Appeals or Supreme Court to issue an opinion, so a few additional days makes no difference, other than to the party who loses because of a miscalculation of a due date, computer or copier malfunction, or just because the lawyer got so far behind that the deadline couldn't be met. Cases should be decided on their merits, and the law should be flexible, not rigid, if substantial justice is the goal.
The ILB may append additional responses to Prof. Schumm's observations.

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Indiana Courts

Ind. Decisions - "A Kosciusko County boy was deprived of due process rights when a judge rushed through a hearing that sent the 12-year-old to adult court on a murder charge"

The Dec. 11th Court of Appeals opinion in Paul Henry Gingerich v. State of Indiana (ILB summary here) is the subject of an editorial today titled "Justice - delayed" in the Fort Wayne Journal Gazette:

The Indiana Court of Appeals judges have determined something advocates for justice already knew: A Kosciusko County boy was deprived of due process rights when a judge rushed through a hearing that sent the 12-year-old to adult court on a murder charge.

Even worse, the court found, the key witness in the hearing was simply wrong in his testimony about crucial facts. Robert Babcock, Kosciusko County’s chief probation officer, testified that if Paul Gingerich remained in the juvenile system, he would be released at age 18, if not sooner, without parole. In fact, Gingerich could have been held until age 21 then released on parole.

Babcock testified there were no residential treatment facilities in Indiana appropriate for a juvenile who committed a homicide. In fact, Gingerich’s attorneys later found 17 private facilities that would accept a 12-year-old convicted of murder in addition to a state-run juvenile prison.

Judge Duane Huffer of Kosciusko Superior Court apparently ignored Indiana law that requires an accused underage killer be waived to adult court only after a “full investigation and hearing.” Huffer gave Gingerich’s original lawyer just four days to prepare for a waiver hearing, not enough time for a psychological evaluation, discovery of the prosecution’s evidence or research to prepare to question witnesses.

Further, Huffer suggested that the state’s juvenile system cannot properly handle a young juvenile charged with murder.

The appeals court wrote: “We note that such a view is contrary to the language of (the law) … which allows for the juvenile justice system to rehabilitate juveniles accused of committing an act of murder if the juvenile defendant demonstrates that ‘it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.’ ”

Gingerich – an 80-pound sixth-grader when he was accused of helping a friend kill the friend’s stepfather – pleaded guilty to conspiracy to commit murder and was sentenced to 25 years in prison. The appeals court rightly sent the case back to juvenile court for another waiver hearing.

Typically, Indiana’s attorney general would appeal this week’s ruling to the state Supreme Court, particularly if a precedent were at stake. But case law is already clear, and Attorney General Greg Zoeller’s office said his office will study whether to appeal.

“Among the most disheartening cases seen in the criminal justice system are those involving young people charged with extremely violent crimes,” Zoeller said. “For prosecutors and judges, these are among the most difficult cases as well in terms of balancing the rights of the juvenile with the safety of the community. We will carefully review our options after consulting with the county prosecutor and conducting further research.”

Zoeller might appeal, but he could conclude that the ruling is so obviously the right one that justice would be best served by sending Gingerich back to juvenile court for a proper hearing.

Make no mistake, deciding how to treat a 12-year-old who helped kill someone is no easy matter. And regardless of age, the boy helped kill Philip Danner. But Indiana’s constitution emphasizes that the criminal justice system is based on reformation, not vindictive punishment, and that is especially true for a child. Kosciusko officials were wrong to simply send Gingerich to adult court without a true and thorough investigation into the boy’s competency and options for incarceration.

Now, he will finally receive the evaluation justice demands.

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Melvin Simon heirs settle estate feud"

Updating a long list of earlier ILB entries on the Melvin Simon estate dispute, Jeff Swiatek of the Indianapolis Star reports today in a long story that begins:

More than three years after Melvin Simon’s death, his nearly $2 billion estate finally will be divvied up.

How the assets will be split, however, could remain secret.

A Hamilton County judge Wednesday approved a sealed settlement in the nearly 3-year-old dispute over the division of the Simon estate, whose main holdings were shares in shopping mall giant Simon Property Group.

The settlement ends a bitter family fight over the estate of Simon, who died in 2009 at age 82.

The settling parties were Simon’s daughter Deborah Simon, who challenged his will, the court-appointed trustee of the estate and Simon’s widow, Bren Simon.

“Just and reasonable” was the way Superior Court Judge William J. Hughes characterized the settlement in a court order that came well before the scheduled summer trial date.

Caught up in the dispute were numerous Central Indiana charities, which now can expect to collect the gifts earmarked for them in the will.

Melvin Simon, who cofounded Indianapolis shopping mall developer Simon Property Group, made significant charitable pledges during his life to Indiana University, St. Vincent Hospital, Riley Children’s Foundation and Indianapolis Museum of Art, among other recipients.

The sometimes heated dispute over the will ended with a surprising absence of controversy. The judge said not a single person who had an interest in the settlement filed an objection to it.

The dispute reached the courts when Deborah Simon asked that her father’s will be invalidated, alleging that her stepmother, Bren Simon, coerced her ill husband to revise it some seven months before he died. The revised will boosted Bren Simon’s share of the inheritance and significantly reduced the portion going to her three stepchildren.

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - A New Unwritten Policy on Late Brief Filings at the Indiana Court of Appeals?

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

I attended a legal writing conference in Texas last week. Some professors at a law school there told me assignments that are more than two hours late earn a zero. I assume the tough policy helps law students become prepared for eventual practice. After all Texas is where, a few years ago “Michael Wayne Richard was executed at approximately 8:20 p.m., a little over three hours after a court official, at [Judge Sharon] Keller's direction, told his counsel that the clerk's office would not stay open approximately 20 minutes after its usual closing time to accept a late filing in his case ....” As the saying goes, don’t mess with Texas.

What about deadlines in Indiana? As hopefully every lawyer knows, the timely filing of a notice of appeal is a jurisdictional requirement. Blowing that deadline in a civil case generally means a lawyer better call his or her malpractice carrier; the appeal is forfeited. In criminal cases, Post-Conviction Relief Rule 2 allows belated appeals under certain circumstances.

There are numerous other deadlines throughout an appeal. If the clerk doesn’t file a notice of completion of the transcript within 90 days of filing a notice of appeal, failure by counsel to seek an order compelling completion within fifteen days “shall subject the appeal to dismissal.” The Appellant’s Brief must be filed within 30 days of completion of the transcript. A petition for transfer is due within 30 days of the Court of Appeals’ opinion. Responses to motions must be filed within 15 days of service of the motion. And so on.

One would assume all these deadlines are firm, and blowing a deadline is a bad thing with possible consequences. The Clerk’s office has long marked late filings “received” instead of filed, and counsel was then required to file a separate motion requesting the Court accept the late filing. The vast majority of these were likely accepted, as long as a good reason was provided.

I was recently told of an apparently new, unwritten policy allowing the late filing of briefs within five days of their actual due date. Some docket entries offer support, as the following three docket numbers all show (1) a late brief marked “received” by the clerk followed within a couple of days by (2) a sua sponte order from the Court of Appeals directing the clerk to file the brief as of the date of the order:

49A02-1108-CR-00721 (Appellee’s Brief filed one day late)

49A02-1207-CR-000528 (Appellant’s Brief and Appendix filed one business day late)

49A04-1207-CR-00372 (Appellant’s Brief and Appendix filed four days late)

Call me a curmudgeon, but I actually like deadlines. Deadlines bring useful predictability to any process. My first-year legal writing students know that a paper that is a minute late will earn a 10% penalty. This avoids the discussion of “it was only [fill in the blank, two, five, etc.] minutes late.” Late is late. There are no exceptions barring an emergency.

If the Court of Appeals truly does have an unwritten policy allowing briefs filed one to five days late, it seems likely a day or few late may become the new norm for filing. When trying to wrap up an appellate brief at 3:00 or 4:00 p.m. on the due date, there's no reason to work late and Rotunda-file a brief; just finish it up in the next day or two.

But questions persist about the reach of the purported policy. If counsel is given a “final” extension on a brief, does counsel actually have five days beyond that deadline? Will late filings be accepted just for briefs or for other types of filings, such as motions? What about Rule 35(C), which prohibits extensions of time on petitions for rehearing, petitions for transfer, and appeals involving termination of parental rights? Can those filings also be tendered a few days late? (And is the Indiana Supreme Court onboard with the same policy?)

Consistently enforcing all deadlines would obviate those questions. I’m not suggesting that an appeal should be dismissed when a lawyer makes a calendaring error and files something a day late. (Thirty-eight days, however, has been held to be too late.) But it’s not unreasonable for a late-filing lawyer to experience a healthy “oh, $%#&!” moment when a deadline is blown, followed by a motion that explains the error that will hopefully never be repeated.

If blown deadlines are instead greeted as a matter of routine with polite orders accepting the late filing, one might expect many more late filings--and some lawyers confused and upset if a late filing is at some point not accepted or the unwritten policy changes.

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Indiana Courts