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Thursday, May 22, 2014

Ind. Decisions - Court of Appeals issues 6 today (and 11 NFP)

For publication opinions today (6):

In Robert R. Setree, II, and Beverly L. Setree v. River City Bank, a 13-page opinion, Judge Riley writes:

Appellants-Defendants, Robert R. Setree, II and Beverly L. Setree , appeal the trial court’s summary judgment in favor of Appellee-Plaintiff, River City Bank, granting River City the right to foreclose on the Setrees’ real estate. We affirm.

The Setrees raise three issues on appeal, one of which we find dispositive and which we restate as: Whether principles of full faith and credit required the trial court to consider the judgments of a Kentucky court res judicata to the instant cause. * * *

Because we conclude that the Kentucky judgments had acquired subject matter jurisdiction and personal jurisdiction over the parties before it, we must afford full faith and credit to these opinions. * * *

Here, res judicata is more properly defined as issue preclusion. The same issues — the Setrees’ failure to pay Indiana property tax pursuant to their 2007 Note and their right to cure — between the same parties — the Setrees and River City—governed the Kentucky cases and this appeal.

In In the Matter of the Paternity of B.C., M.B. and N.S. v. J.C. , an 18-page opinion, Judge Brown writes:
M.B. and N.S. appeal the Montgomery Circuit Court’s denial of their motion to correct error following an order on custody and parenting time in a paternity action filed by J.C., and the Marion Superior Court’s denial of their motions to correct error following the dismissal of their guardianship and adoption action. M.B. and N.S. raise three issues which we consolidate and restate as whether the Montgomery Circuit Court or the Marion Superior Court had jurisdiction to determine the custody of B.C. We reverse and remand. * * *

Because the petition for adoption and the paternity action were pending at the same time, the court in which the petition for adoption had been filed had exclusive jurisdiction over the custody of B.C. See Ind. Code § 31-19-2-14; see also Ind. Code § 31-14-21-13 (“Upon notice that a court in which an adoption is pending has assumed jurisdiction of a paternity action under IC 31-19-2-14, the court in which the paternity action was pending shall stay all proceedings in the paternity action until further order from the court in which the adoption is pending.”). Accordingly, the Montgomery Circuit Court could not properly exercise jurisdiction to enter its July 5, 2013 order as the Marion Superior Court had exclusive jurisdiction over the custody of B.C., and the Marion Superior Court erred when it dismissed the guardianship and adoption proceedings. We reverse the Montgomery Circuit Court’s July 5, 2013 order and remand with instructions for the Marion Superior Court to comply with all provisions of Ind. Code §§ 31-19 and 29-3.

For the foregoing reasons, we reverse the Montgomery Circuit Court’s July 5, 2013 order, the Marion Superior Court’s August 6, 2013 order dismissing the guardianship, and the Marion Superior Court’s August 6, 2013 order dismissing the Guardian’s petition for adoption, and remand for proceedings consistent with this opinion. Reversed and remanded.

In Yellowbook Inc. f/k/a Yellow Book Sales and Distribution Company, Inc. v. Central Indiana Cooling and Heating, Inc. and Lawrence E. Stone aka Larry Stone, a 13-page opinion, Judge Riley writes:
Yellow Book raises three issues on appeal, which we restate as follows:
(1) Whether the trial court erred by concluding that Yellow Book failed to credit certain Central Indiana payments totaling $19,717.10;
(2) Whether the trial court erred by concluding that Stone properly cancelled an advertising contract with Yellow Book; and
(3) Whether the trial court erred by concluding that Yellow Book is not entitled to recover prejudgment interest and reasonable attorney’s fees. * * *

Based on the foregoing, we conclude that (1) the trial court erred when it concluded that Yellow Book failed to credit certain Central Indiana payments under Contracts 1 and 2; (2) Contract 3 was induced by fraud and is rescinded; and (3) Yellow Book is entitled to pre-judgment interest and reasonable attorney’s fees for amounts owed under Contracts 1 and 2. Affirmed in part, reversed in part, and remanded with instructions.

In Maddox T. Macy v. State of Indiana , a 10-page opinion, Judge Robb writes:
Maddox Macy appeals her conviction for resisting law enforcement, a Class A misdemeanor. Macy raises a single issue for our review: whether there was sufficient evidence to prove Macy forcibly resisted a law enforcement officer. * * *

Concluding Macy’s acts of opening Officer Bowland’s police car door and refusing to place her feet inside the car were not acts constituting forcible resistance, we reverse.

In Julian Tuggle v. State of Indiana, a 19-page opinion, Judge Baker writes:
This case is about an individual who initially lied to the police when he told them that he was only a victim of an armed robbery and shooting. In actuality, the evidence later showed that appellant-defendant Julian Tuggle was also an actual perpetrator of Murder, a felony.

After Tuggle was admitted to Wishard Hospital (Hospital) in Indianapolis with a gunshot wound, a police detective was dispatched to the scene, commenced an investigation, and secured the clothing that Tuggle had worn into the hospital. The detective inferred that the clothing that Tuggle wore when the crimes were committed contained evidence of a crime, including a bullet hole and/or blood.

Although the detective seized the bag of Tuggle’s clothing, no search or DNA testing was performed on the items until the police obtained a search warrant. However, after various tests were conducted on the clothing, a reported murder victim’s DNA was discovered on Tuggle’s clothing that the detective had secured. Tuggle was tried, convicted, and sentenced for the victim’s murder.

Tuggle challenges the detective’s seizure of the bag and the admission of the clothing into evidence, as well as the sufficiency of the evidence. We conclude that Tuggle’s Fourth Amendment Rights under the United States Constitution and his rights in accordance with Article I Section 11 of the Indiana Constitution were not violated. The evidence demonstrated that the detective acted lawfully and reasonably in seizing the bag of Tuggle’s clothing without a warrant. Also, the evidence was properly admitted at trial, and we conclude that the evidence was sufficient to support Tuggle’s conviction for murder. Thus, we affirm the judgment of the trial court.

In Craig Bakari Thomas v. State of Indiana , a 13-page opinion, Judge Riley writes:
Appellant-Defendant, Craig Bakari Thomas (Thomas), appeals his conviction for two Counts of criminal deviate conduct, Class B felonies, Ind. Code § 35-42-4-2; and one Count of sexual battery, a Class D felony, I.C. § 35-42-4-8. We affirm.

Thomas raises two issues on appeal, which we consolidate and restate as: Whether the State committed prosecutorial misconduct during its closing argument. * * *

Thomas asserts that the State violated his Fifth Amendment rights on two separate instances during its closing argument. * * *

Based on the foregoing, we conclude that, although the State committed prosecutorial misconduct in its first statement, the error was harmless. Additionally, with respect to the second statement, we find that the State did not commit prosecutorial misconduct.

NFP civil opinions today (5):

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

In the Matter of the Termination of the Parent-Child Relationship of: E.M.D., E.D., and S.D., (Minor Children), and S.D., (Father) v. The Indiana Department of Child Services (NFP)

Larry Powell v. Vanessa Powell (NFP)

David W. Reed v. Jennifer Reed (NFP)

Megan M. Hatzell v. Tyler A. Hatzell (NFP)

NFP criminal opinions today (6):

Jeremy Riffert v. State of Indiana (NFP)

Darren L. Sivley v. State of Indiana (NFP)

William A. Parks v. State of Indiana (NFP)

Sylvester Smith v. State of Indiana (NFP)

Jerry L. Siers v. State of Indiana (NFP)

Thomas H. Fuller, III v. State of Indiana (NFP)

Posted by Marcia Oddi on May 22, 2014 01:52 PM
Posted to Ind. App.Ct. Decisions