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Tuesday, September 30, 2014

Ind. Decisions - Court of Appeals issues 6 today (and 16 NFP)

For publication opinions today (6):

In In re the Visitation of A.D. and B.D., Candy Miller v. Abby Dickens, a 13-page opinion, Judge Pyle writes:

Paternal grandmother, C.M. (“Grandmother”) appeals the trial court’s denial of her petition for grandparent visitation, under the Grandparent Visitation Act, with A.J.M.D. and B.R.M.D. (collectively “the Children”), who are the children of A.D. (“Mother”). The parties entered into an agreement—which was then set forth in an agreed order—that allowed Grandmother to have supervised visitation with the Children under certain conditions during the two months pending a final review hearing. Following that hearing, the trial court denied Grandmother’s grandparent visitation petition, finding that Grandmother had neither met her burden to rebut the presumption accorded to Mother as a fit parent nor her burden to show that visitation was in the Children’s best interests.

Grandmother now appeals the trial court’s order, arguing that the trial court erred by reviewing this case as a petition for grandparent visitation instead of a motion to modify grandparent visitation. Given the specific record before us on appeal, we conclude that the trial court did not err by ruling on this case as a petition for grandparent visitation and by denying Grandmother’s petition. We affirm.

In Travelers Casualty and Surety Company of America, et al v. Maplehurst Farms, Inc., et al , a 14-page opinion, Judge Barnes concludes:
In summary, we conclude that the trial court erred when it interpreted Maplehurst I to require Travelers to pay costs that were incurred as a result of the Dean Settlement. As a result, the trial court erred by granting summary judgment to Maplehurst. We reverse and remand for proceedings consistent with this opinion.
In Calvin Hair v. Deutsche Bank National Trust Company, as Trustee for Ameriquest Mortgage Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2003-1, an 11-page opinion, Judge Barnes writes:
Calvin Hair appeals the denial of his motion to set aside a default judgment for foreclosure entered in favor of Deutsche Bank National Trust Company (“Deutsche Bank”). We reverse and remand.

The issue before us is whether the judgment obtained by Deutsche Bank was void as to Hair for lack of personal jurisdiction, resulting from ineffectual service of process. * * *

Because the foreclosure judgment obtained by Deutsche Bank was void as to Hair, we reverse the denial of Hair’s motion to set aside judgment. Hair’s judgment lien against the Talbott Street property still exists and we remand for further proceedings to address that lien.

In YTC Dream Homes, Inc., et al. v. DirectBuy, Inc., et al. , a 29-page opinion, Judge Brown writes:
In this interlocutory appeal, YTC Dream Homes, Inc., et al. (the “Appellants”)1 appeal the trial court’s order denying five pro hac vice petitions in favor of DirectBuy, Inc., et al. (the “Appellees”). The Appellants raise three issues which we consolidate and restate as whether the court erred when it denied the pro hac vice petitions. We reverse and remand. * * *

The Appellants argue that the trial court erred in its interpretation of Local Rule 5(C) and that to the extent Local Rule 5(C) conflicts with Ind. Admission and Discipline Rule 3(2) it is “deemed without force and effect.” Appellants’ Brief at 8 (quoting Armstrong v. Lake, 447 N.E.2d 1153, 1154 (Ind. Ct. App. 1983)). They maintain that a local rule which attaches a condition to the application of a rule issued by the Indiana Supreme Court “is an impermissible ‘impingement thereon’ . . . .” Id. (quoting Armstrong, 447 N.E.2d at 1154 (quoting Lies v. Ortho Pharmaceutical Corp., 259 Ind. 192, 195, 286 N.E.2d 170, 173 (1972))). The Appellants cite to the Indiana Supreme Court’s pronouncement in In re Fletcher that “appearances in one state by an attorney regularly admitted and licensed to practice in another state are generally permitted as a matter of comity, incident to the disposition of a particular matter isolated from his or her usual practice in the state of his or her residence” and that this principle is represented in Rule 3(2). Id. at 9 (quoting In re Fletcher, 655 N.E.2d at 59 n.1). * * *

For the foregoing reasons, we reverse the court’s September 9 Order, and we remand with instructions to grant the Attorneys pro hac vice admission.

In Peter Griffith v. State of Indiana , an 18-page, 2-1 opinion, Judge Brown writes:
Peter Griffith appeals his conviction and sentence for battery by means of a deadly weapon, a class C felony. Griffith raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion in excluding certain evidence; and II. Whether Griffith’s sentence is inappropriate in light of the nature of the offense and his character. * * *

For the foregoing reasons, we affirm Griffith’s conviction and sentence for battery by means of a deadly weapon. Affirmed.

BRADFORD, J., concurs.
BARNES, J., dissents with separate opinion. [which begins, at p. 14] I dissent because I believe my colleagues, as well as the trial court, applied a too stringent standard in their interpretation of Evidence Rule 613(b). It is clear to me that Federal Rule of Evidence 613(b), which is identical to Indiana Evidence Rule 613(b), allows impeachment by prior inconsistent statements after the witness to be impeached has already testified. This is true even if the party wanting to introduce the prior inconsistent statements did not cross-examine the witness about those statements. * * * I dissent because I believe my colleagues, as well as the trial court, applied a too stringent standard in their interpretation of Evidence Rule 613(b). It is clear to me that Federal Rule of Evidence 613(b), which is identical to Indiana Evidence Rule 613(b), allows impeachment by prior inconsistent statements after the witness to be impeached has already testified. This is true even if the party wanting to introduce the prior inconsistent statements did not cross-examine the witness about those statements.

In Orr v. State, 968 N.E.2d 858, 863 (Ind. Ct. App. 2012), prior to Griffith’s trial, another panel of this court adopted the federal interpretation of Evidence Rule 613(b).

In William Remy v. State of Indiana, a 12-page opinion, Judge Robb writes:
Following a jury trial, William Remy was convicted of three counts of child molesting, all Class A felonies; one count of child molesting as a Class C felony; and performing sexual conduct in the presence of a minor, a Class D felony. He received an aggregate sentence of ninety-five and one-half years imprisonment. Remy appeals his convictions and sentence, raising the following issues for our review: (1) whether the trial court abused its discretion by allowing certain pornographic materials to be admitted at Remy’s trial; and (2) whether Remy’s sentence is inappropriate in light of the nature of his offenses and his character. Concluding the admission of pornographic images at Remy’s trial was erroneous but amounts to harmless error and that Remy’s sentence is not inappropriate, we affirm.
NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of S.G., minor child, and K.G., the mother, and S.L., the father, K.G. v. Indiana Department of Child Services (NFP)

John B. Sirbu v. Review Board of the Indiana Department of Workforce Development and IDWD U.I. Claims Adj. Ctr. (NFP)

NFP criminal opinions today (14):

Raymond P. Dick v. State of Indiana (NFP)

Derrick Zinerman v. State of Indiana (NFP)

Craig Hatchett v. State of Indiana (NFP)

Kufanyo Brooks v. State of Indiana (NFP)

Larry Troiani v. State of Indiana (NFP)

Breanne H. Rice v. State of Indiana (NFP)

Russell Murrain v. State of Indiana (NFP)

Anessa B. Bennett v. State of Indiana (NFP)

Jamie M. Curtsinger v. State of Indiana (NFP)

K.T. v. State of Indiana (NFP)

Raymond Ryan Marling v. State of Indiana (NFP)

Charles C. Wood v. State of Indiana (NFP)

Gordon Lee Peak v. State of Indiana (NFP)

Tarainka A. Cain v. State of Indiana (NFP)

Posted by Marcia Oddi on September 30, 2014 12:05 PM
Posted to Ind. App.Ct. Decisions