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Thursday, March 20, 2014

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Heritage Acceptance Corporation v. Chris L. Romine , an 8-page opinion, Sr. Judge Sharpnack writes:

Heritage Acceptance Corporation (“Heritage”) appeals a small claims court judgment in favor of Chris L. Romine. We affirm.

Heritage raises two issues, which we restate as: I. Whether a four-year or six-year statute of limitations applies to Heritage’s complaint. II. Whether the statute of limitations bars Heritage’s complaint. * * *

Here, Heritage waited until early April 2013 to exercise its right to demand full payment under the optional acceleration clause. Romine had tendered his last payment almost six years earlier. Furthermore, Romine’s schedule of seventy-eight biweekly payments would have ended in September 2008. Heritage did not demand full payment until well over four years after that deadline. We conclude, as did the Court in Smither, that waiting after these events have occurred to exercise an optional acceleration clause is unreasonable. Thus, Heritage’s long-delayed attempt to exercise the acceleration clause did not prevent the four-year statute of limitations from taking effect, and its complaint is barred. Heritage has failed to establish prima facie error.

In Kevin Moss v. State of Indiana, a 10-page opinion, Sr. Judge Darden writes:
Moss raises one issue, which we restate as: whether the trial court erred in denying his motion to dismiss the enhancement to a class C felony of his charge of class A misdemeanor possession of a handgun without a license due to a prior felony conviction that was later modified to a misdemeanor. * * *

The evidence revealed that Moss completed his term of probation without any violations and that he successfully obtained AMS modification in FD-86565. As in Gardiner, Moss’s prior class D felony conviction no longer exists and has effectively been vacated, unlike in McClure’s case where modification did not occur.

Moss has carried his burden of proving error, and the C felony enhancement must be dismissed for want of a predicate felony conviction.

For the reasons stated above, we reverse the judgment of the trial court and remand with instructions to grant Moss’s motion to dismiss the C felony enhancement to his charge of possession of a handgun without a license.

NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of:A.H. & J.H. (Minor Children), and D.T. (Father) v. The Indiana Department of Child Services (NFP)

Michael W. Gilliland v. Fifth Third Mortgage Company (NFP)

NFP criminal opinions today (2):

Dominique McClendon v. State of Indiana (NFP)

Charles Washington v. State of Indiana (NFP)

Posted by Marcia Oddi on March 20, 2014 11:26 AM
Posted to Ind. App.Ct. Decisions