« Ind. Courts - Indianapolis attorney Jesse L. Coleman suspended for 60 days | Main | Ind. Decisions - 7th Circuit decides two Indiana cases today »

Thursday, September 11, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (0):

In Lewis Oil, Inc. v. Bourbon Mini-Mart, Inc. and Robert E. Wanamacher, a 10-page opinion, Judge Crone writes:

Robert E. Wanamacher owned Bourbon Mini-Mart, Inc. (“Mini-Mart”), in Bourbon, Indiana. In 1991, the Indiana Department of Environmental Management (“IDEM”) filed a complaint against Wanamacher and Mini-Mart (collectively “Appellees”) seeking reimbursement for the cleanup of contaminants from the Mini-Mart property and an adjoining property that once housed a gas station.

Lewis Oil, Inc., was voluntarily dissolved in 1997. In accordance with Indiana Code Section 23-1-45-7, Lewis Oil published a notice of dissolution stating that any claim against it would be barred unless a proceeding to enforce the claim was commenced within two years after publication of the notice. Omitted from the notice was a description of “the information that must be included in a claim” as required by paragraph (b)(2) of the statute.

In 2003, Appellees filed a third-party complaint against Lewis Oil, alleging that it owned and operated underground storage tanks (“USTs”) at the adjoining gas station that released petroleum products that contributed to the contamination. Lewis Oil filed a motion for summary judgment asserting that Appellees’ claims were time-barred pursuant to Indiana Code Section 23-1-45-7 because the lawsuit was filed more than two years after the notice of dissolution was published. In response, Appellees argued that their claims were not time-barred because the notice did not contain a description of “the information that must be included in a claim.” Appellees also filed a motion for partial summary judgment as to whether Lewis Oil owned and operated the USTs. In a summary judgment reply brief, Lewis Oil argued that the notice was valid pursuant to Indiana Code Section 5-3-1-2.3, which applies to notices published pursuant to statute, because a reasonable person would not be misled by the omission. The trial court denied both parties’ summary judgment motions.

In this interlocutory appeal, Lewis Oil contends that the trial court erred in denying its summary judgment motion because a reasonable person would not be misled by the omission in its notice of dissolution. We agree. The requirement that a notice of dissolution describe “the information that must be included in a claim” is clearly intended for the benefit and protection of the dissolved corporation, and the claimant would have firsthand knowledge of the claim.

Therefore, we conclude that Lewis Oil’s notice of dissolution was valid and that Appellees’ claims are time-barred because their lawsuit was filed more than two years after the notice was published. Accordingly, we reverse and remand with instructions to enter summary judgment in favor of Lewis Oil. And because we find Lewis Oil’s argument dispositive, we do not address Appellees’ arguments on cross-appeal regarding the trial court’s denial of their partial summary judgment motion, which we affirm.

In Lee Travis Griffin v. State of Indiana, a 17-page opinion, Judge Najam concludes:
In sum, we conclude that the State presented sufficient evidence to support Griffin’s convictions. We also hold that Griffin waived any error related to the admission of the autopsy photographs but, his waiver notwithstanding, the trial court did not abuse its discretion when it admitted the photographs into the record. And we hold that the trial court did not abuse its discretion when it refused to issue a reasonable theory of innocence instruction on these facts. Thus, we affirm Griffin’s convictions.
In Brian M. Marley v. State of Indiana , a 10-page opinion relating to changes in the criminal code:
Marley claims that his sentence is inappropriate in light of the recent changes to the Indiana criminal code that have, under certain circumstances, notably decreased the sentences for drug offenses. Marley does not claim that the new criminal code statutes apply directly to his conviction and sentence; he claims instead that we should consider the public policy set forth in the new criminal code in determining whether his sentence is inappropriate. * * *

Generally speaking, the sentencing statutes in effect at the time the defendant committed the offense govern the defendant’s sentence. Barber v. State, 863 N.E.2d 1199, 1209 (Ind. Ct. App. 2007). However, the doctrine of amelioration provides an exception to this general rule where a defendant who is sentenced after the effective date of a statute providing for more lenient sentencing is entitled to be sentenced pursuant to that statute rather than the sentencing statute in effect at the time of the commission or conviction of the crime. Id. Notably, the doctrine of amelioration does not apply where the legislature, in a specific saving clause, expressly states an intention that crimes committed before the effective date of the ameliorative amendment should be prosecuted under prior law. Turner v. State, 870 N.E.2d 1083, 1087 (Ind. Ct. App. 2007).

Here, the General Assembly, in enacting the new criminal code, also enacted savings clauses. Specifically, both Indiana Code section 1-1-5.5-21 and section 1-1-5.5- 22 state that the new criminal code “does not affect: (1) penalties incurred; (2) crimes committed; or (3) proceedings begun” before the effective date of the new criminal code sections, i.e., July 1, 2014. These sections also provide that “Those penalties, crimes, and proceedings continue and shall be imposed and enforced under prior law as if [the new criminal code] had not been enacted.” Id. And, in no uncertain terms, these sections state: “The general assembly does not intend the doctrine of amelioration (see Vicory v. State, 400 N.E.2d 1380 (Ind. 1980)) to apply to any SECTION [of the new criminal code].” Id.

It is abundantly clear from these statutes that the General Assembly intended the new criminal code to have no effect on criminal proceedings for offenses committed prior to the enactment of the new code. We think this is true with regard to considering the appropriateness of a sentence under Appellate Rule 7(B); we are to proceed as if the new criminal code had not been enacted. We therefore decline to take into consideration the lesser penalties of the new criminal code in addressing the appropriateness of Marley’s sentence. Instead, we consider what Appellate Rule 7(B) requires us to consider: the nature of the offense and the character of the offender. * * *

Because of the clear, unambiguous language of the savings clause statutes, we decline to take into consideration the lesser penalties of the new criminal code when addressing the appropriateness of Marley’s sentence. Upon considering the nature of the offense and the character of the offender, we are unable to say that Marley’s sentence of ten years executed and two years suspended is inappropriate.

NFP civil opinions today (3):

Daniel E. Stuckman, Sr., and Daniel E. Stuckman, Jr. v. Angela C. Stuckman, as Personal Representative of the Estate of Gary A. Stuckman, deceased, and Angela C. Stuckman, et al. (NFP)

Nancy Hay v. Richard Hay (NFP)

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

NFP criminal opinions today (3):

Alberto Villalva v. State of Indiana (NFP)

Michael T. Paille v. State of Indiana (NFP)

Thomas Booker v. State of Indiana (NFP)

Posted by Marcia Oddi on September 11, 2014 10:41 AM
Posted to Ind. App.Ct. Decisions