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Thursday, July 31, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Linda M. Turner v. Sally A. Kent and Stanley J. Kazlauski , a 10-page, 2 opinion ruling, Judge Bradford writes:

Appellant-Respondent Linda Turner, trustee and beneficiary of the Kazlauski Family Trust (the “Trust”), appeals the trial court’s grant of summary judgment in favor of Trust beneficiaries Appellees-Petitioners Sally Kent and Stanley Kazlauski on the issue of whether a separate writing prepared after the execution of the Trust validly modified the Trust’s distribution terms. The separate writing provides for specific gifts of real property to Linda and Stanley. The trial court determined this to be an invalid attempt to incorporate by reference. On appeal, Linda argues that the writing constitutes a valid amendment to the Trust and, alternatively, a valid incorporation by reference. We conclude that the settlor intended the separate writing to be incorporated by reference into the Trust and, therefore, that it cannot be construed as an amendment to the Trust. We further conclude that the Indiana Trust Code prohibits incorporation by reference of specific gifts of real property and, therefore, that the separate writing is an invalid incorporation by reference. We affirm the trial court’s grant of summary judgment in favor of Sally and Stanley. * * *

As a result of our holding, the distribution of the Parcel remains subject to the Equal Shares Provision of the Trust. In dividing the Parcel equally among the three beneficiaries, we note that Stanley and Linda’s respective shares might include the homes which Selma arguably intended that they receive. The adoption of such an equitable solution, however, we leave to the sound discretion of the trial court. The judgment of the trial court is affirmed.

RILEY, J., concurs.
ROBB, J. concurs in result with opinion. [which begins, at p. 9] I, too, would affirm the trial court’s grant of summary judgment in favor of Sally and Stanley. However, I write separately because I find it unnecessary to determine Selma’s intention with respect to the Specific Gifts Form in order to reach that conclusion.

In State of Indiana v. Chase R. Downey , a 12-page, 2-1 opinion, Judge Bradford writes:
Appellee-Defendant Chase R. Downey was arrested after guns, marijuana, and a large sum of cash were discovered during a traffic stop of the vehicle in which he was a passenger. At the time of the stop, Downey indicated that the cash belonged to him. The cash was seized at the time of his arrest. On August 23, 2011, Downey was charged in Division One of the Clark County Circuit Court (the “Division One Circuit Court”) with Class B felony unlawful possession of a firearm by a serious violent felon, Class C felony carrying a handgun without a license, and Class D felony possession of marijuana. On September 16, 2011, the funds seized from Downey were transferred to the federal government pursuant to a transfer order that was issued by the trial judge presiding over Division Three of the Clark County Superior Court (the “Division Three Superior Court”).

Downey filed several requests in the Division One Circuit Court to have the seized funds returned to him before filing a motion to set aside the transfer order on July 27, 2013. The Division One Circuit Court subsequently granted Downey’s petition to set aside the transfer order and instructed Appellant-Plaintiff the State of Indiana (the “State”) to return the seized funds to Downey. On appeal, the State contends that the Division One Circuit Court abused its discretion in setting aside an order of the Division Three Superior Court, a separate court of equal jurisdiction. Concluding that the Division One Circuit Court abused its discretion in setting aside the transfer order, we reverse the judgment of the Division One Circuit Court. * * *

RILEY, J., concurs.
ROBB, J., dissents with opinion. [which begins, at p. 7, and includes] Moreover, even if I were to accept the majority’s premise that we must treat the courts as they existed when the case was filed, I would still disagree with the result. The Circuit Court had jurisdiction over the criminal case against Downey, and therefore, over the evidence relevant to that case. Yet, the State did not seek transfer of that evidence in the Circuit Court. Instead, it filed the motion in Superior Three, but took the motion to the Superior One judge for signature. If one court cannot control the processes of any other court of equal jurisdiction, then neither the Superior Three court nor the Superior One judge should have been issuing orders affecting a Circuit Court case. To the extent the distinction between the courts was important prior to reorganization or remains important now, the State itself did not hold the distinction in high regard and treated the courts even when they were separate as if they were interchangeable, filing the motion to transfer funds relating to a circuit court criminal case in one superior court and obtaining a signature on the order from the judge of an entirely different superior court. Accordingly, I also do not agree with the majority that Downey must challenge the transfer order only in Division Three if at all. See slip op. at 7. Even if that was the case, however, I question how he could do so when he was not even aware there was a transfer order out of Division Three until nearly two years after it was issued. Likewise, I do not agree with the majority that Downey’s request is moot. The money still exists even if it is no longer in the State’s immediate possession. That the State may need to recover it from the federal government or take other action to provide the relief the court ordered does not make this issue moot.

In Brookview Properties, LLC and First Merchants Bank of Central Indiana v. Plainfield Plan Commission, a 30-page opinion, Judge Najam concludes:
Brookview purchased the Hearthview parcel with knowledge that the original owner and developer had agreed with the Town of Plainfield to “rezone Metropolis as [a] PUD without approved land uses so that the Town and the Developer could work together, through the Metropolis Development Process, to establish use and development requirements for Metropolis.” Appellee’s Br. at 20-21. The first Commitment of the original developer set out in the Metropolis PUD clearly states that no preliminary plan and, hence, no land use had been approved for the Hearthview parcel. Because no preliminary plan had been approved for the Hearthview parcel, Brookview has not shown that the Plan Commission’s denial of its petition for development plan approval was arbitrary or capricious. And, finally, the Plan Commission’s decision does not constitute a taking. The trial court did not err when it granted the Plan Commission’s cross-motion for judgment on the administrative record and affirmed the Plan Commission’s denial of Brookview’s development plan.
In William T. Calvert v. State of Indiana , a 9-page opinion, Judge Najam writes:
William T. Calvert appeals his conviction for illegal consumption of alcohol by a minor, a Class C misdemeanor, following a bench trial. Calvert presents two issues for our review: 1. Whether the trial court erred when it tried him in absentia while he was on active duty with the United States Army in Afghanistan. 2. Whether a retrial would violate the prohibition against double jeopardy under Article 1, Section 14 of the Indiana Constitution. We reverse and remand for a retrial. * * *

Notwithstanding the tardy motion for a continuance, the reason for Calvert’s absence is undisputed, and the timing of the motion does not obviate the fact that the motion was made for undeniable good cause. Calvert had a constitutional right to be present at his trial, but he was bound by his U.S. Army Orders for deployment overseas, which compelled him to be absent from the trial. We conclude that the motion for a continuance should have been granted and that Calvert should not have been tried in absentia. Thus, we reverse his conviction. * * *

The general rule is that retrial of a defendant is permissible when the conviction is reversed on grounds other than sufficiency of the evidence. Hastings v. State, 560 N.E.2d 664, 670 (Ind. Ct. App. 1990), trans. denied. Because we reverse Calvert’s conviction on the basis that the trial court erred when it tried him in absentia, the State may retry Calvert.

NFP civil opinions today (0):

NFP criminal opinions today (8):

Marlon D. McKnight v. State of Indiana (NFP)

Tobin Pettiet v. State of Indiana (NFP)

Joshua W. Sanford v. State of Indiana (NFP)

Ronald Williams v. State of Indiana (NFP)

Terry Lee Carr v. State of Indiana (NFP)

Robert Hubbard v. State of Indiana (NFP)

Justin Stephens v. State of Indiana (NFP)

Mark McCoy v. State of Indiana (NFP)

Posted by Marcia Oddi on July 31, 2014 12:15 PM
Posted to Ind. App.Ct. Decisions