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Tuesday, January 15, 2013

Ind. Decisions - Court of Appeals issues 6 today (and 7 NFP)

For publication opinions today (6):

In George Dean King v. Kay S. King, et al., a 21-page opinion, Judge Rley concludes:

Based on the foregoing, we conclude that (1) the trial court did not abuse its discretion when it approved the elimination of certain inter-company accounts receivable belonging to Crown prior to conveying Crown to George; (2) the trial court properly decided that the Receiver was not required to reimburse World for tax payments relating to inter-company accounts prior to conveying World to George; (3) the trial court did not abuse its discretion by allocating the Receiver’s legal costs to George after George’s unsuccessful prior appeal; and (4) the trial court properly released the Receiver from liability for all his actions during the pendency of the receivership.
In Amir H. Sanjari v. State of Indiana, an 11-page opinion, Judge Bradford writes:
Amir Sanjari had two children with Alison Gratzol and, when the couple divorced, Sanjari was ordered to pay child support. Sanjari failed to do this on a regular basis, and his arrearage eventually came to be almost $57,000. Sanjari was tried and convicted of two counts of Class C felony nonsupport and sentenced to two consecutive five-year sentences. On appeal, the Indiana Supreme Court reduced one of Sanjari’s convictions to a Class D felony and remanded for resentencing. The trial court sentenced Sanjari to eight years of incarceration for the Class C felony and two for the Class D felony, to be served consecutively. Sanjari again appeals.

Sanjari contends that his sentence violates prohibitions against double jeopardy, violates prohibitions against vindictive sentencing, and is inappropriately harsh. We conclude that Sanjari’s new sentence does not constitute double punishment. We also conclude that Sanjari has failed to show actual vindictiveness by the trial court and that his aggregate sentence does not entitle him a presumption of vindictiveness because it is no longer than the aggregate sentence originally imposed. Finally, in light of the severity of Sanjari’s offenses and his appalling character, we conclude that his ten-year executed sentence in not inappropriate. We affirm.

In Steven Engelking v. Amy Engelking, a 7-page opinion by Judge Pyle, the issue is:
Whether the trial court erred in determining that Father should pay child support as the parent of two children conceived through artificial insemination during his marriage to Mother. * * * Affirmed.
In Secrena D. Erwin, individually and as Mother of Sheyenne R. Jenkins, deceased v. HSBC Mortgage Services, Inc., Ian's Pointe Homeowners Association, Inc., and R&G Management Co., Inc., et al., a 14-page opinion, Judge Friedlander writes:
In the instant case, Mother has failed to designate evidence that CASI took affirmative steps to remedy the condition of the pool. She simply directs us to an ambiguous statement by CASI that the issue regarding the pool would be “taken care of”. Even if we were to take the leap with Mother and infer that this was an assurance that CASI would go onto the property and secure the pool, the fact is that CASI did not act upon this promise in any way. Thus, contrary to Mother’s assertions on appeal, her allegations amount to a claim of nonfeasance by CASI, requiring a showing of detrimental reliance or increased risk of harm. Mother makes no claim that CASI increased the risk of harm, and she directs us to no evidence that Mother, Sheyenne, or the Jenkinses detrimentally relied on CASI’s promise to another neighbor. In fact, there is no indication in the record that they were even aware of the conversation prior to the drowning. The trial court correctly determined as a matter of law that this is not a case of gratuitous assumption of duty.

The trial court properly granted summary judgment in favor of Defendants based upon lack of duty. Because we have affirmed the grant of summary judgment on this ground, we need not reach the attractive nuisance issue addressed by the parties. Judgment affirmed.

In J.R. v. State of Indiana , a 6-page opinion, Judge Kirsch writes:
J.R. appeals from his adjudication as a delinquent child for burglary, which would be a Class B felony if committed by an adult, theft, which would be a Class D felony if committed by an adult, auto theft, which would be a Class D felony if committed by an adult, and resisting law enforcement, which would be a Class A misdemeanor if committed by an adult. He raises the following restated issue: whether his adjudications for both theft and auto theft are barred due to the single larceny rule.
We affirm. * * *

The enactment of this separate statute indicated the General Assembly’s intention that auto theft be considered a completely separate offense from theft and that violations of the two statutes be considered distinct.

In John Pichon, Jr. v. American Heritage Banco, Inc., et al., a 21-page opinion, Judge Najam concludes:
While Pichon failed to raise the affirmative defense of payment in his answer, AHB included in its statement of issues for trial in the PTO the issue of “[w]hether there is an unpaid balance owing to AH[B] on the 650K Note and, if so, the amount thereof.” Appellant’s App. at 44. Accordingly, Exhibit A, which is an original of the $650K note stamped “paid,” is relevant to the issue of whether there is an unpaid balance on that note, and the trial court should have admitted it into evidence. The trial court’s exclusion of Exhibit A prejudiced Pichon to such an extent that we hold it was reversible error. We reverse the trial court’s judgment with respect to the $650K note, only, and remand for a new trial on that issue. To the extent that the remaining issues will recur on remand, we hold that: AHB has standing to sue Pichon on the $650K note; Pichon has waived the issues of illegality, accord and satisfaction, and consideration; the trial court did not err when it denied Pichon an award on his counterclaims for failure to show pecuniary loss; prejudgment interest is appropriate in this case should AHB prevail on retrial; and Pichon is entitled to a set-off in the amount of $162,000 if he is found to be liable on the $650K note on retrial. Finally, we reverse the trial court’s attorney’s fee award.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

NFP civil opinions today (5):

Designplan, Inc. and Jill D. Willey v. John R. Price and The National Bank of Indianapolis Corporation (NFP)

Norma E. Singo, et al. v. Deutsche Bank National Trust Company Americas, and Fred Shimfessel, Richard Cart, d/b/a Cart's Creative Designs and Encore Credit Corp. (NFP)

Kelly Lee Muncy, Kendra Marie Vondersaar, Karen Kay Muncy and Kim Sue Muncy v. Town of Avon, Indiana (NFP)

Pamela J. Podemski v. U.S. Bank National Association as Trustee (NFP)

Term. of the Parent-Child Rel. of Tr.C., Te.C., and K.C. (Minor Children); N.C. aka N.J. (Father) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (2):

Bin Mu v. State of Indiana (NFP)

State of Indiana v. Jason Burkett (NFP)

Posted by Marcia Oddi on January 15, 2013 11:51 AM
Posted to Ind. App.Ct. Decisions