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Tuesday, September 23, 2014

Ind. Decisions - Court of Appeals issues 6 today (and 9 NFP)

For publication opinions today (6):

In The Branham Corporation v. Newland Resources, LLC; Samuel Sutphin; White River Funding Corp.; et al; Thomas N. Eckerle; Thomas N. Eckerle Prof. Corp. v. The Branham Corporation, a 26-page opinion, Judge Bailey writes:

In 2007, The Branham Corporation (Branham) obtained a judgment against Newland Resources, LLC (Newland) and related entities for breach of contract. The judgment was uncollectible in light of 2004-2005 distributions by Newland that had depleted corporate assets available for creditors. In 2011, Branham filed proceedings supplemental and new claims for relief under the Indiana Crime Victims Relief Act, Indiana Code section 34-24-3-1 (Victims Relief Act) and Indiana’s Corrupt Business Influence Act, Indiana Code section 34-24-2-6 (RICO). * * * Summary judgment was granted to the majority of the defendants on the new claims, on statute of limitations and res judicata grounds. Branham appeals the grant of summary judgment.

The appeal of the grant of summary judgment has been consolidated with an appeal by Thomas Eckerle, a past provider of legal services to Newland, and the Thomas Eckerle Professional Corporation (collectively, Eckerle). Eckerle appeals the denial of a motion to correct error which challenged the February 4, 2013 dismissal, without prejudice, of Eckerle as a defendant. We affirm the trial court’s summary judgment order but remand for inclusion of Eckerle as a prevailing defendant. We reverse the order dismissing Eckerle.

In James Bogner v. Teresa Bogner , a 12-page opinion, Judge Pyle concludes:
Here, the trial court did not indicate in its order that it considered any of the factors that it was required to consider under the Guidelines. In addition, the Parents did not submit any evidence from which the trial court could have considered many of the factors. There is evidence in the record concerning the Parents’ respective incomes and the percentage of the cost of supporting H.B. that each Parent bears. Based on this evidence, the trial court could have considered the second and fourth factors listed in the Guidelines, although there is no evidence it did so. Otherwise, neither party submitted previous tax returns nor any other evidence that would have helped the trial court consider the financial ramifications to H.B. of eliminating Father’s tax exemption, other than Mother’s self-serving testimony regarding the value of the exemption. Accordingly, we conclude that the trial court abused its discretion in modifying Father’s exemption. We remand to the trial court to re-evaluate the issue of the Parents’ tax exemption based on the factors listed in the Child Support Guidelines.
In In re the Estate of Ruth M. Rupley, Charles A. Rupley v. Michael L. Rupley, a 3-page opinion on rehearing, Judge May writes:
Michael Rupley petitions for rehearing of our decision reversing the trial court’s order concluding the balance of a promissory note executed by Michael’s brother Charles and his mother, Ruth Rupley, was an asset of Ruth’s Estate. We grant rehearing for the limited purpose of clarifying our application of the Transfer on Death Property Act. * * *

Ind. Code chapter 32-17-14 does not define “pay on death account,” but it does define “security” as “a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer.” Ind. Code § 32-17-14-3 (12) (emphasis added). Whether the note was a “pay on death account” or a “transfer on death security,” the Act applied retroactively to it and the note was not an asset of the Estate.
We therefore grant rehearing and reaffirm our original opinion.

Vaidik, C.J., concurs.
Riley, J., would deny rehearing.

In In the Matter of the Termination of the Parent-Child Relationship of A.S. and C.S. (Minor Children); K.W. (Mother) and B.S. (Father) v. The Indiana Department of Child Services , a 22-page opinion, Judge Pyle writes:
B.S. (“Father”) and K.W. (“Mother”) (collectively, “the parents”) appeal the trial court’s termination of their parental rights to their minor children, A.S. and C.S. (collectively, “the children”). The parents argue that there was not sufficient evidence to support the termination because some of the trial court’s findings of fact were erroneous, and because the trial court’s findings of fact did not support its conclusions. We conclude that three of the trial court’s findings of fact were erroneous; nevertheless, even without these erroneous findings, the Department of Child Services (“DCS”) presented sufficient evidence to support the termination of the parents’ parental rights. Affirmed.
In Jessica Kishpaugh v. John Odegard and Miriam Odegard, a 24-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court did not err in concluding that Kishpaugh committed theft, breached the Lease, and violated the Tenant Statute. Although the trial court lacked jurisdiction to declare that the theft damages are a non-dischargeable debt in bankruptcy, we conclude that the trial court’s inclusion of this conclusion in its Judgment is harmless error. In addition, we grant the Odegards’ Petition for Appellate Attorney Fees and remand to the trial court to determine the amount.
In Dale Bulthuis III v. State of Indiana , a 19-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion in admitting into evidence the items seized during the search of Wireman’s garage: Wireman voluntarily consented to the search, and the police were not required to give Bulthuis, who was in custody in a police car on an active warrant for his arrest, an opportunity to object to the search. The State presented evidence sufficient to support Bulthuis’s conviction for dealing in methamphetamine: in addition to the presence of precursors and a manufacturing setting, the police found methamphetamine residue, Bulthuis and Wireman had recently purchased relatively large amounts of pseudoephedrine, and Bulthuis made statements implicating himself in the manufacture of methamphetamine. The State was not required to present evidence of an active methamphetamine lab. Lastly, the trial court’s restitution order requiring Bulthuis to pay the State for the costs incurred during the cleanup of the lab was specifically authorized, and indeed required, by the relevant restitution statute. Affirmed.
NFP civil opinions today (4):

Jesse Clements and Gersh Zavodnik v. The Honorable John Hanley and Marion Superior Court 11 (NFP)

Heidemarie Garcia v. Cover-Rite, Inc., J.C. Builders, Inc. and Salvino Verta (NFP)

Richard L. Smart v. Kristina L. Smart (NFP)

PaulaJean Skowronek v. Review Board of the Department of Workforce Development, and Aldi Indiana, LP (NFP)

NFP criminal opinions today (5):

Tony R. Shipley, II v. State of Indiana (NFP)

Forrest R. Ferguson v. State of Indiana (NFP)

Darius Hardiman v. State of Indiana (NFP)

Torrence L. Belcher v. State of Indiana (NFP)

Paul E. Matthews v. State of Indiana (NFP)

Posted by Marcia Oddi on September 23, 2014 11:13 AM
Posted to Ind. App.Ct. Decisions