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Wednesday, August 27, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Marquise Lee v. State of Indiana , a 12-page opinion on rehearing, Judge Najam writes:

Marquise Lee petitions for rehearing after we affirmed his conviction for attempted aggravated battery, a Class B felony, in a not-for-publication memorandum decision. See Marquise Lee v. State, No. 49A02-1310-CR-869, 2014 WL 2187702 (Ind. Ct. App. May 27, 2014) (“Marquise Lee I”). Marquise and two of his confederates, Latoya Lee and Billy Young, were each charged with the murder of Ramon Gude, they were tried jointly to the bench, and, on their joint motion, the trial court entered an involuntary dismissal of the State’s murder charges. However, in doing so the court “kept the case open for consideration of lesser included battery charges.” Id. at *1. The court then found each of the three defendants guilty of attempted aggravated battery, and the defendants separately appealed. Following this panel’s decision, another panel of this court unanimously reversed Young’s conviction. Young v. State, ___ N.E.3d ___, 2014 WL 2616189 (Ind. Ct. App. June 12, 2014), reh’g denied (July 22, 2014). A third panel of this court unanimously affirmed Latoya’s conviction and sentence. Latoya Lee v. State [NFP], No. 49A02-1310-CR-867, 2014 WL 2587313 (Ind. Ct. App. June 10, 2014), reh’g granted and decision aff’d (August 27, 2014) (“We grant rehearing to acknowledge our awareness of the decision in Young but decline to reverse our earlier decision . . . as [Latoya] did not raise any issue concerning the charging information on appeal.”). Marquise now petitions for rehearing and asks that this panel follow the Young panel’s reasoning. We decline to do so and affirm our prior decision. * * *

In sum, we decline Marquise’s request to follow the reasoning of the Young panel. We hold that Marquise did not preserve this issue for appellate review and that the trial court did not commit fundamental error when it entered judgment against Marquise for attempted aggravated battery as an inherently lesser included offense to the State’s charge of murder. As such, we grant Marquise’s petition for rehearing and we affirm our prior decision.
Affirmed.

Some ILB observations: The panels are:Today's opinion on rehearing is For Publication, while the original May 27, 2014 opinion is Not for Publication. Today's opinion cites Latoya Lee v. State, which is NFP. A week ago we saw Brandon Brummett v. State of Indiana (NFP), a one-paragraph opinion on rehearing, while the original June 2nd opinion is For Publication.

NFP civil opinions today (4):

In Cohen & Malad, LLP v. John P. Daly, Jr., Golitko & Daly, P.C. and Golitko Legal Group, P.C. (NFP), a 15-page, 2-1 opinion, Judge Baker writes:

In this case, faced with a situation in which appellant-defendant John Daly took twenty-four cases with him when he left the firm of appellant-plaintiff Cohen & Malad LLP (C&M), we are asked to examine the correct apportionment of attorney fees. C&M appeals the trial court’s determination that it was not due quantum meruit compensation from appellee-defendants John Daly Jr., Golitko & Daly, P.C. (Golitko & Daly), and Golitko Legal Group P.C. More particularly, C&M argues that the trial court failed to apply the quantum meruit recovery rule established by Galanis v. Lyons & Truitt and contends that the trial court erred in holding that C&M failed to establish any right of recovery against Golitko & Daly. We find that C&M failed to prove that Daly was unjustly enriched to its detriment and conclude that C&M failed to establish any right of recovery against Golitko & Daly. Therefore, we affirm the judgment of the trial court. * * *

BARNES, J., concurs, and CRONE, J., dissents with opinion. [ which begins, at p. 14] I respectfully dissent. While it may be true that C&M was “very well compensated” for Daly’s time while he was a salaried associate at the firm, that compensation is simply irrelevant to C&M’s quantum meruit claim for the 1000-plus hours that C&M’s attorneys contributed to the twenty-four cases that Daly took with him to Golitko & Daly. Pursuant to Galanis, C&M should be compensated for the useful work that its attorneys performed on those cases, and it should be able to recover that compensation from Golitko & Daly, which possesses the disputed fees and otherwise would be unjustly enriched by C&M’s efforts.

Jaro Mayda II v. Melinda D. Barnette (NFP)

Layne L. Dellamuth and Anita M. Dellamuth v. Ken's Carpets Unlimited, Inc. d/b/a Carpets Unlimited (NFP)

Evanston Insurance Company and Markel Corporation v. Samantha Meeks Family Practice, Inc., Samantha Meeks, and George Edwin Grant, et al. (NFP)

NFP criminal opinions today (3):

Frank Blythe v. State of Indiana (NFP)

Thomas Walter Gorski v. State of Indiana (NFP)

Latoya C. Lee v. State of Indiana (NFP)

Posted by Marcia Oddi on August 27, 2014 01:42 PM
Posted to Ind. App.Ct. Decisions