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Thursday, April 17, 2014

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In Geico General Insurance Company v. Laura B. Coyne, Cheryl A. O'Mailia, and James O'Mailia, a 29-page opinion, Judge Brown writes:

GEICO General Insurance Company (“GEICO”) appeals from the trial court’s Findings of Fact and Conclusions of Law Addressing Plaintiff’s Motion for a New Trial, entered on March 21, 2013, as well as from the court’s Final Order entered on June 5, 2013, in favor of Cheryl A. O’Mailia and James O’Mailia (collectively, the “O’Mailias”). GEICO raises three issues, which we consolidate and restate as whether the court erred in awarding attorney fees to the O’Mailias based upon GEICO litigating in bad faith. Additionally, the O’Mailias request appellate attorney fees pursuant to Ind. Appellate Rule 66(E). We reverse and also deny the O’Mailias’ request for appellate attorney fees. * * *

The issue is whether the court erred in awarding attorney fees to the O’Mailias based upon GEICO litigating in bad faith. * * *

Here the parties agree that GEICO did not violate the rules of discovery. There was no interrogatory or other tool of discovery related to the Florida Information, and accordingly GEICO was under no duty to supplement its discovery under Ind. Trial Rule 26(E). Under the circumstances, in which GEICO was not under a duty to disclose the Florida Information and it researched the scope of its duty to disclose before deciding not to do so, we conclude that GEICO did not litigate in bad faith. Accordingly, we reverse the trial court’s attorney fee award under Ind. Code § 34-52-1-1(b)(3). * * *

ROBB, J., concurs.
BARNES, J., concurs with separate opinion. [which begins, at p. 28] I concur with the majority that the award of attorney fees be reversed. I do so with some hesitation, though, because I believe that trial by ambush and rabbit-out-of-the-hat moments are not to be favored in our courtrooms.

In Teresa Fry n/k/a Teresa Dolan v. Michael Fry, a 12-page opinion, Judge Robb writes:
When Michael and Teresa Fry divorced in 2005, they agreed regarding child custody, parenting time, and support for their child, J.F. In addition, they agreed that Michael could exercise parenting time with respect to Teresa’s prior-born daughter, K.D., at his option. In 2012, Michael filed an emergency petition for modification of custody with respect to both children, alleging that Teresa suffers from a degenerative illness that renders her unable to adequately care for them. The trial court granted the petition, ordering that Michael have primary physical custody of both children and Teresa have supervised visitation. Teresa later filed a Trial Rule 60(B) motion for relief from judgment, seeking to void the order modifying custody as to K.D. The trial court denied the motion for relief and reaffirmed its previous orders. Teresa appeals the trial court’s denial of her motion for relief as to K.D. only, raising the sole issue of whether the trial court had jurisdiction in this post-dissolution matter to determine custody of K.D., who was not a child of the marriage. Concluding the trial court had jurisdiction and committed no legal error, we affirm. * * *

The trial court did not commit any legal error in considering Michael’s emergency petition, and Teresa does not dispute an emergency existed as found by the trial court in its July 26, 2012, order. The trial court’s order awarding custody of K.D. to Michael is therefore affirmed.

In Geoffrey A. Gilbert v. Melinda J. Gilbert, a 21-page, 2-1 opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court did not abuse its discretion in granting Mother’s request to relocate because she had a good faith and legitimate purpose for relocating, and the move was not contrary to the Children’s best interests. Additionally, we conclude that Mother is not entitled to appellate attorney fees because Father’s appeal is not frivolous or in bad faith. Affirmed.

BARNES, J. concurs
ROBB, J. dissents with separate opinion [which begins, at p. 16] As noted by the majority, when a parent subject to a custody or parenting time order wishes to relocate and the other parent objects, the relocating parent must prove that the relocation is made in good faith and for a legitimate reason. If the relocating parent makes this showing, then the objecting parent must prove that the relocation is not in the child’s best interest. The majority decides that the record clearly supports the trial court’s conclusion that Mother desired to relocate in good faith and for a legitimate reason. I respectfully dissent.

In Charrise Belton v. State of Indiana, an 8-page opinion, Judge Bradford writes:
On March 7, 2013, Appellant-Defendant Charrise Belton was riding in a vehicle driven by her then-boyfriend, Tacolby Calloway. Belton waited in the vehicle while Calloway entered a home located near the intersection of 33rd Street and Orchard Avenue in Indianapolis. Calloway appeared to be under the influence of drugs when he exited the home approximately thirty minutes later. Calloway subsequently became upset with Belton and threatened to assault her. Fearing for her safety, Belton drove away from Calloway. Belton was stopped by a member of the Indianapolis Metropolitan Police Department for a traffic infraction approximately one-half of a mile away.

The State subsequently charged Belton with Class A misdemeanor driving while suspended. Following a bench trial, the trial court found Belton guilty as charged and imposed a 365-day suspended sentence. On appeal, Belton contends that the State did not present sufficient evidence to negate her necessity defense. Concluding that the evidence presented by the State was insufficient to negate Belton’s necessity defense, we reverse.

In Jason Taylor v. State of Indiana , a 9-page opinion, Chief Judge Vaidik writes:
Jason Taylor pled guilty to a Class D felony and was sentenced to eighteen months all suspended to probation in August 2004. Under his plea agreement, he was permitted to petition the court to reduce his conviction to a Class A misdemeanor if he successfully completed the terms of his probation. After successfully completing eighteen months of probation, he petitioned the trial court and it entered judgment as a Class A misdemeanor. In 2013, the Indiana legislature passed Indiana Code chapter 35-38-9, which allows convicted criminals to petition for expungement of previous crimes. Taylor appeals the denial of his petition for expungement under Indiana Code section 35-38-9-2. Although Taylor met all of the requirements in Indiana Code section 35-38-9-2(d), the trial court denied Taylor’s petition for expungement. Indiana Code section 35-38-9-2 states that if all conditions of the statute are met, the trial court shall order the conviction expunged. Nonetheless, the trial court denied the expungement relying on Indiana Code section 35-38-9-9(d), which requires a trial court to consider a victim’s statement before deciding on expungement. We determine that the word “shall” in Section 35-38-9-2(d) is mandatory language requiring expungement. And such an interpretation does not render Section 35-38-9-9(d) meaningless because that section applies to other parts of the statute where the trial court does have discretion to deny a petition for expungement. Therefore, we reverse the trial court. [Emphasis by ILB]
NFP civil opinions today (3):

In Re: the Marriage of: Gordon Somerville v. Effie K. Somerville (NFP)

Patrick R. Taylor v. Jason Evans, Curtis Evans, and Chrystal Evans (NFP)

Barbara Wiggles v. Sandlian Management Corporation d/b/a U-Stor Self-Storage (NFP)

NFP criminal opinions today (7):

Joshua Cornett v. State of Indiana (NFP)

K.P. v. State of Indiana (NFP)

Michelle D. Gauvin v. State of Indiana (NFP)

Thomas Curtis Edmond v. State of Indiana (NFP)

Gwendolyn F. Jones v. State of Indiana (NFP)

Daniel Torres v. State of Indiana (NFP)

Ben L. Macon v. State of Indiana (NFP)

Posted by Marcia Oddi on April 17, 2014 12:47 PM
Posted to Ind. App.Ct. Decisions