« Ind. Gov't. - "Rep. Turner nursing-home company sold in $2.3 billion deal" | Main | Ind. Courts - New Chief Justice Loretta Rush to be sworn in Monday »

Thursday, August 14, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Michael H. Kretschmer v. Bank of America, N.A., a 12-page opinion, Judge Brown writes:

Michael H. Kretschmer appeals the trial court’s denial of his Motion to Set Aside a Default Judgment in favor of Bank of America, N.A. (“BANA”). Kretschmer raises one issue which we revise and restate as whether the trial court abused its discretion in denying his motion. We reverse and remand. * * *

In this case, Kretschmer has alleged facts of “an agreement made with opposite party, or his attorney” and of “conduct of other persons causing party to be misled or deceived,” see Kmart, 719 N.E.2d at 1254, and we find that he established that his failure to timely file an answer to BANA’s complaint was the result of excusable neglect under Trial Rule 60(B)(1) due to the information provided by the office of BANA’s counsel. In addition, Trial Rule 60(B)(3) permits a court to set aside a default judgment for reasons of fraud, misrepresentation or other misconduct of an adverse party.

In Amy L. Falatovics v. Imre L. Falatovics, a 7-page opinion, Judge Crone writes:
Amy L. Falatovics (“Wife”) appeals the decree dissolving her marriage with Imre L. Falatovics (“Husband”). She argues that the trial court erred in excluding from the marital estate Husband’s interest in two parcels of real estate, which he owns as a joint tenant with his brother subject to a life estate in his mother. Wife asserts that Husband’s interest in the real estate was improperly excluded from the marital estate because Husband has a present pecuniary interest in the properties. We agree and therefore reverse and remand with instructions to include Husband’s interest in the properties in the marital estate and to redistribute the marital assets as appropriate.
In Stephanie Lucas v. State of Indiana, a 21-page opinion with a separate concurring opinion, Judge Riley writes:
Appellant-Defendant, Stephanie M. Lucas (Lucas), brings an interlocutory appeal of the trial court’s Order denying her motion to suppress evidence obtained in the course of a traffic stop. We reverse.

Issue. Whether the trial court erred by denying Lucas’ motion to suppress evidence that was obtained in violation of her Fourth Amendment rights. * * *

Here, the traffic stop was more intrusive than authorized for a permissible investigatory stop because Sergeant Weisner did not articulate a legitimate reason as to why he could not complete his investigation standing alongside Lucas’ vehicle. As a result, suppressing the evidence obtained after Sergeant Weisner unreasonably moved Lucas to his squad car is necessary as a means of deterring police officers from impinging the guarantees of the Fourth Amendment in the future. See Camp v. State, 751 N.E.2d 299, 302-03 (Ind. Ct. App. 2001), trans. denied. We therefore conclude that the trial court should have granted Lucas’ motion to suppress.

CONCLUSION. Based on the foregoing, we conclude that the evidence obtained as a result of Lucas’ unlawful investigatory stop should be suppressed. Reversed.

ROBB, J. concurs
BRADFORD, J. concurs in result with separate opinion [which begins, at p. 17] Although I do not believe that Sergeant Weisner’s request that Lucas sit in his patrol vehicle violated Lucas’s rights under the Fourth Amendment, I concur in result with the majority opinion because, under the circumstances, I believe that Lucas was subjected to an illegal custodial interrogation without first being advised of her rights. I would therefore conclude that the incriminating statements made to Sergeant Weisner and the physical evidence recovered from Lucas’s vehicle during the search incident to her arrest should have been suppressed.

NFP civil opinions today (3):

In the Matter of the Voluntary Termination of the Parent-Child Relationship of: M.C., Jr., M.C., Sr., Father v. Indiana Department of Child Services (NFP)

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

In the Matter of the Termination of the Parent-Child Relationship of: G.V. (Minor Child) and M.V. (Mother) v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (6):

Trent A. Burnworth v. State of Indiana (NFP)

Arthur B. Greco, Jr. v. State of Indiana (NFP)

Charles J. Dean v. State of Indiana (NFP)

Kyle J. Eckstein v. State of Indiana (NFP)

Jason S. Aliff v. State of Indiana (NFP)

Tremayne Terry v. State of Indiana (NFP)

Posted by Marcia Oddi on August 14, 2014 11:12 AM
Posted to Ind. App.Ct. Decisions