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Thursday, September 18, 2014

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Cheryl Welton v. Midland Funding, LLC as Assignee of Chase Bank USA, NA as Issuer of Disney Consumer Credit Card, an 8-page opinion, Judge Barnes writes:

Cheryl Welton appeals the denial of her Indiana Trial Rule 60(B) motion for relief from judgment granted to Midland Funding LLC (“Midland”). We affirm. * * *

Welton contends she demonstrated mistake, surprise, or excusable neglect by explaining that the failure to respond to the motion for summary judgment was the result of a calendaring error attributable to her attorney while he was establishing a new firm. She also claims her first motion for relief for judgment demonstrated her meritorious defense—that she paid the debt in 2010. Welton asserts that, by filing the motion for relief from judgment, she simply was seeking “the opportunity to respond to Midland’s summary judgment motion where the failure to do so resulted from mistake and excusable neglect.” * * *

We believe that the plain language of Trial Rule 56(I) allows a trial court to alter a time limit if a motion for extension of time is timely filed. It does not vest a trial court with the discretion to allow a party to file an untimely response simply because he or she had previously filed a timely motion for extension of time. To hold otherwise, would create the very uncertainty our supreme court sought to avoid in Mitchell.

Even if Welton’s motion for relief from judgment had been granted, Welton would not have been permitted to belatedly respond or designate evidence in opposition to Midland’s motion for summary judgment. Without a response, it is hard to imagine how the outcome of the summary judgment proceedings would have been different. Because vacating the judgment would have been an empty exercise, Welton has not shown she has a meritorious defense to Midland’s motion for summary judgment. Taking this with the fact that the trial court had already granted Welton relief from judgment once and the fact that Welton specifically asked for and was granted an extension until January 14, 2013, but still did not file a response, leads us to conclude that the trial court did not abuse its discretion in denying her second motion for relief from judgment. * * *

Welton has not shown that the trial court abused its discretion in denying her motion for relief from judgment. Welton’s challenge to the underlying grant of summary judgment for Midland is not available for our consideration. We affirm.

In Michael W. Sloan v. State of Indiana, a 23-page, 2-1 opinion, Judge Brown writes:
Michael W. Sloan appeals his conviction and sentence for child molesting as a class A felony. Sloan raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion by excluding certain evidence; and II. Whether the court abused its discretion in sentencing him. We affirm in part, reverse in part, and remand. * * *

Based upon the record, we conclude that the evidence that Sloan wished to elicit from his mother would not have had a probable impact on the jury, that the exclusion of this evidence did not affect Sloan’s substantial rights, and that the trial court did not abuse its discretion in excluding this testimony. See Mathis v. State, 776 N.E.2d 1283, 1286-1287 (Ind. Ct. App. 2002) (holding that the trial court properly excluded evidence that would not have had any impact on the verdict), trans. denied. * * *

We find the record does not support the aggravating circumstances found by the trial court. Accordingly, we conclude the court abused its discretion in enhancing Sloan’s sentence by five years and remand with instructions to impose the advisory sentence of thirty years.

CONCLUSION. For the foregoing reasons, we affirm Sloan’s conviction for child molesting as a class A felony, reverse the sentencing order, and remand with instructions to impose the advisory sentence of thirty years served in the Department of Correction. Affirmed in part, reversed in part, and remanded.

BARNES, J., concurs.
BRADFORD, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 19] I concur with the majority’s conclusion that the trial court acted within its discretion in excluding certain evidence from trial. However, I respectfully dissent from the majority’s conclusion that the trial court abused its discretion in sentencing Sloan.

NFP civil opinions today (1):

Robert F. Lynn, Linda S. Lynn, and Robert Lynn Company, Inc. v. Ronnie Shaffer and Jane Shaffer (NFP)

NFP criminal opinions today (4):

Terence W. Lowery v. State of Indiana (NFP)

Darryl S. Newell v. State of Indiana (NFP)

Deadrian Boykins v. State of Indiana (NFP)

Joseph Wayer v. State of Indiana (NFP)

Posted by Marcia Oddi on September 18, 2014 10:32 AM
Posted to Ind. App.Ct. Decisions