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Thursday, December 19, 2013

Ind. Decisions - Court of Appeals issues 5 today (and 7 NFP)

For publication opinions today (5):

In In the Matter of the Estate of Stephen T. Hannebaum, Deceased, Renada Fay Hannebaum v. Mary Rebecca Hannebaum and Stephen T. Hannebaum, II, as Personal Representatives of Stephen T. Hannebaum, a 6-page opinion, Sr. Judge Shepard writes:

Under Indiana’s probate law, a spouse who has voluntarily left the marital residence and engaged in an adulterous relationship is barred from inheritance by intestacy. In this case, the issue is what evidence suffices to invoke this disqualification. * * *

The court held a hearing to determine heirship and in due course it issued an order finding that Renada had forfeited her right to inherit from Stephen’s estate.

Renada claims on appeal that the evidence did not establish either of the conditions necessary to exclude her as an heir to Stephen’s estate. * * *

The short of the matter for present purposes is that to deny a surviving spouse an inheritance, the estate must establish that the surviving spouse (1) was living in adultery at the time of the deceased’s death and (2) voluntarily abandoned the deceased spouse. * * *

Although the parties do contest the finding on adultery, their arguments focus primarily on abandonment. “Voluntary abandonment” in the context of Indiana Code section 29-1-2-14 means that the departing spouse intended a permanent separation rather than a temporary one, and that the deceased spouse neither agreed to the separation nor caused it. Although the parties do contest the finding on adultery, their arguments focus primarily on abandonment. “Voluntary abandonment” in the context of Indiana Code section 29-1-2-14 means that the departing spouse intended a permanent separation rather than a temporary one, and that the deceased spouse neither agreed to the separation nor caused it. See In re Estate of Patrick, 958 N.E.2d at 1160.

Renada asserts that she did not voluntarily abandon Stephen; rather, she maintains that she fled the marital home to escape domestic abuse. The trial court’s judgment, however, rests in substantial part on finding that the only identified instance of abuse occurred after Renada had already moved out of the marital residence. * * *

Based upon this evidence, the trial court properly found that Renada voluntarily abandoned Stephen. As for whether Renada left Stephen permanently rather than temporarily, we think that a court can find permanent departure where, as here, a spouse leaves the marital residence, files for dissolution, and remains away for roughly four years, notwithstanding the fact that a final decree of dissolution had not been issued.

We therefore affirm the trial court’s judgment.

MATHIAS, J., concurs.
ROBB, C.J., concurs in result.

In Dana Companies, LLC v. Chaffee Rentals, a/k/a, Chaffee Rentals and Storage, BRC Rubber Group, Inc., Charles V. Chaffee, Karen J. Chaffee and Clifford Chaffee, a 20-page opinion, Judge Pyle writes:
Dana Companies, LLC, (“Dana”) appeals their damages awarded in their lawsuit against Chaffee Rentals, Charles V. Chaffee, Karen J. Chaffee, Clifford Chaffee, and BRC Rubber Group, Inc., (collectively, “BRC”). On cross-appeal, BRC claims that the trial court’s findings do not support its judgment and that Dana should not recover any damages. We affirm in part, reverse in part, and remand.

1. Whether the trial court properly determined that the fortuity principle did not apply to Dana’s claim.
2. Whether Dana is entitled to recover any damages from BRC in light of their negotiated settlement agreement.
3. Whether Dana is entitled to prejudgment interest. * * *

Dana spent a total of $640,579.30 in performing the required work. * * *

[Trial court]
7. Based upon these allocations, Dana is entitled to recover from BRC
$73,294.69 for investigation and remediation work performed at the
8. * * * Therefore, Dana is entitled to recover 17.73% of the administrative cost from BRC or $40,291.78. * * *

We find that the trial court erred by not confining its allocation of costs to the four corners of the settlement agreement. Accordingly, we affirm the trial court’s award of damages to Dana, but reverse the amount awarded. Dana is entitled to damages of $3,608.87 in investigative costs and administrative costs of $1,818.01, for a total damage award of $5,426.88. * * *

Accordingly, we affirm the trial court’s judgment in favor of Dana, but reverse and remand with instructions to award damages and prejudgment interest consistent with this opinion.

In Meridian Mutual Insurance Company, n/k/a State Automobile Mutual Insurance Company v. Majestic Block & Supply, Inc., n/k/a Tutewiler Corporation, a 17-page opinion, Judge May writes:
State Auto presents the following issues for our review:
1. Whether the “known loss” clause of the insurance contract bars Majestic’s recovery;
2. Whether Majestic’s recovery was barred by late notice to State Auto of Majestic’s environmental claim;
3. Whether Majestic received double recovery of its post-notice costs; and
4. Whether the trial court abused its discretion when it ordered State Auto to pay pre-judgment interest.
Majestic cross-appeals, arguing the trial court should have granted Majestic’s request for attorney fees. * * *

Majestic’s coverage was not barred by late notice or known loss, it did not benefit from a double recovery, and it was entitled to prejudgment interest. However, we cannot characterize State Auto’s arguments as so frivolous, unreasonable, or groundless as to require an award of attorney fees to Majestic. We accordingly affirm the trial court.

In Brittney Watson v. State of Indiana, a 7-page opinion, Judge Bailey writes:
Brittney Watson appeals her conviction for Murder, a felony, presenting the sole issue of whether sufficient evidence supports the conviction. We affirm. * * *

From the foregoing, the jury could have determined beyond a reasonable doubt that Watson either knew or intended that Miller would be killed and acted in concert with Steven and Stephon to accomplish the deed. The evidence is sufficient to support her conviction for Murder.

In William Hinesley, III v. State of Indiana, a 22-page opinion, Judge Crone writes:
Following a bench trial, William Hinesley, III, was convicted of class A felony child molesting. After this Court affirmed his conviction on direct appeal, Hinesley filed a petition for post-conviction relief claiming that he was denied the effective assistance of trial counsel due to his counsel’s deliberate strategic choice to permit the trier of fact to consider as substantive evidence hearsay statements attributed to the State’s primary witnesses. Hinesley also claimed ineffective assistance due to his counsel’s failure to object to improper vouching and uncharged misconduct testimony, and his counsel’s failure to introduce a medical report into evidence at trial. In addition, Hinesley raised a freestanding claim of fundamental error due to alleged prosecutorial misconduct based upon the prosecutor’s knowing introduction of the alleged inadmissible hearsay, vouching, and uncharged misconduct evidence. The post-conviction court denied relief, and Hinesley now appeals. Concluding that the post-conviction court properly determined that Hinesley failed to demonstrate that his counsel’s performance was deficient or prejudicial, and further concluding that his claim of prosecutorial misconduct is unavailable, we affirm.
[6] Hinesley concedes that freestanding claims of fundamental error are unavailable on post-conviction relief, but invites us to address the following question: When a post-conviction petitioner was represented by the same lawyer on direct appeal as at trial, and where that lawyer could not assert his own ineffectiveness at trial or assert fundamental error because of counsel’s failure to object to prosecutorial misconduct, may a post-conviction petitioner raise prosecutorial misconduct as a freestanding issue? * * * While Hinesley points out an interesting quandary, absent specific direction from our supreme court, we decline his invitation to recognize an exception to the established precedent.
NFP civil opinions today (4):

Jeffrey O. Gilstrap v. Michael D. Mount (NFP)

T. Kyle Buehner v. Evansville Teachers Federal Credit Union (NFP)

In the Matter of: J.C. and A.M.C. (Minor Children), Children in Need of Services, and A.K.C. (Mother) v. Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: D.W., Minor Child, G.W., Father v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

Raphael Miles v. State of Indiana (NFP)

Edwin Rwoti v. State of Indiana (NFP)

Maxwell Swisher v. State of Indiana (NFP)

Posted by Marcia Oddi on December 19, 2013 06:48 PM
Posted to Ind. App.Ct. Decisions