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Wednesday, April 22, 2015

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (5):

In William I. Babchuk, M.D., P.C., d/b/a Babchuk Imaging, P.C., and William I. Babchuk v. Indiana University Health Tipton Hospital, Inc., d/b/a Indiana University Health Tipton Hospital, a 7-page opinion, Judge Najam concludes:

The Hospital appears to suggest that anything less than a motion for a trial date would have been insufficient to resume prosecution in this case. We cannot agree.

Babchuk not only requested a stay pending his motion to amend his complaint with the federal court, but he requested, in the alternative, a scheduling conference “to establish discovery and other deadlines in this matter.” Appellants’ App. at 13. Our research reveals no Indiana precedent squarely addressing what constitutes diligent prosecution under Trial Rule 41(E). But a request for a scheduling conference indicates a party’s intent to move forward with litigation. And we hold that where, as here, a plaintiff requests a scheduling conference, even in the alternative to a stay, that is sufficient to constitute resumption of prosecution for purposes of Trial Rule 41(E).

In sum, while the trial court would have had discretion to dismiss Babchuk’s case for failure to prosecute had a timely motion been filed, the Hospital did not file its motion to dismiss before Babchuk had resumed prosecution of his case. Thus, we hold that the Hospital’s Trial Rule 41(E) motion was untimely and that trial court abused its discretion when it dismissed Babchuk’s complaint.

In Timothy Devereux v. Jim and Diana Love , a 24-page opinion, Judge Bradford writes:
One of the blocks of the foundation of America is an individual’s ability to seek to right a wrong through the courts of justice. In a civil case, a plaintiff entrusts his plight and cause to his attorney. The instant matter involves the disturbing tale of a husband and wife whose confidence and trust was betrayed by the very attorney to which they had entrusted their cause of action. The just and normal inclination in such a matter is to punish the wrongdoer and make the victims whole. While William Conour, i.e., the wrongdoer, has been punished and now occupies his appropriate place in federal prison, to date, it appears that these victims have not been made whole for the misdeeds inflicted upon them.

In an attempt to redress this wrong, Appellees/Cross-Appellants/Plaintiffs Jim and Diana Love (collectively, the “Loves”) now seek relief from Appellant/Cross-Appellee/Defendant Timothy Devereux, a former member of Conour’s law practice. However, in light of the facts of this particular case, we find that Devereux satisfied his legal duty to the Loves based on his lack of knowledge of any specific wrongdoing by Conour relating to the Loves. We therefore reverse the judgment of the trial court in this regard and remand the matter to the trial court with instructions that the trial court grant summary judgment in favor of Devereux.

Bryson Tyrone Street v. State of Indiana

In M.M. v. State of Indiana , a 10-page opinion, Judge Najam writes:

After adjudicating M.M. a delinquent for failing to stop after an accident, a Class C misdemeanor when committed by an adult, the juvenile court ordered M.M. to serve probation and, as a condition of that probation, to pay restitution to his victim. Thereafter, the court discharged M.M. from probation, but it did not terminate his obligation to make restitution. M.M. appeals the court’s order and argues that Indiana law required the juvenile court to terminate his restitution obligation upon his discharge from probation. On this question of first impression, we hold that, when restitution is a condition of a juvenile’s probation, Indiana law does not require that the restitution obligation terminate upon the juvenile’s discharge from probation. Accordingly, we affirm on the merits of this appeal, but we remand with instructions that the court correct an error in one of its orders.
In Derek L. Moore v. State of Indiana , a 22-page, 2-1 opinion, Judge Bailey writes:
Derek L. Moore (“Moore”) appeals the trial court’s denial of his motion to correct error, which challenged the court’s denial of his petition for sentence modification. We hold that the trial court erred in finding that it did not have the authority to entertain Moore’s petition for sentence modification. However, we affirm the trial court’s judgment to deny Moore’s petition on its merits.

Moore raises one issue on appeal, which we restate as: whether the trial court erred when it denied Moore’s petition for sentence modification because the trial court did not apply a recent statutory revision that provided Moore procedural, as opposed to substantive, relief. We also address an issue first raised in the State’s brief: whether Moore’s appeal should be dismissed as moot. * * *

Ind. Code § 35-38-1-17(c) (2014) (the “revised statute” eff. July 1, 2014). * * *

Moore argues on appeal that, because the Indiana Code section under which Moore filed his petition was recently revised so that prosecutorial consent is not required, the trial court erred when it found that it had no authority to modify or reduce his sentence absent the consent of the prosecutor. * * *

Moore filed his petition on July 11, 2014, eleven days after the revised statute’s effective date. No provision in the revised Indiana Code section 35-38-1-17 limits the statute’s application to persons convicted after July 1, 2014. Therefore, by the plain language of subsection (c), the trial court did not need to obtain the prosecutor’s consent to reduce or suspend Moore’s sentence. Accordingly, the trial court erred when it found that it did not have the authority to entertain Moore’s petition on its merits without the prosecutor’s consent.

The State argues, however, that the revised statute does not apply to Moore because Moore was convicted and sentenced in 2006. The State contends that the laws in effect at the time of Moore’s offense, not the laws in effect at the time he filed his petition, govern his petition for sentence modification.

It is true that, as a general rule, courts must sentence a convicted person under the statute in effect at the time the person committed the offense. Payne v. State, 688 N.E.2d 164, 165 (Ind. 1997). We disagree, however, that the general rule bars Moore’s petition from proceeding under the revised statute. We confronted the same argument in Willis v. State, 567 N.E.2d 1170 (Ind. Ct. App. 1991), trans. denied. * * *

In this case, when the General Assembly revised the statute to remove the need for prosecutorial consent, it lifted a procedural barrier that prevented petitions from reaching the trial court for review on their merits and “did not make any changes in the sentencing court’s power over the sentence.” Willis, 567 N.E.2d at 1172. Thus, the recent revision to the sentence modification statute implemented a procedural change to a procedural statute. Accordingly, Moore is not barred from bringing his petition under the revised statute simply because he was convicted and sentenced before the revised statute’s effective date. * * *

Neither the plain language of the revised statute nor the savings clause prevents a person convicted or sentenced prior to July 1, 2014 from petitioning for sentence modification under the new terms of revised Indiana Code section 35-38-1-17, provided that all other terms of the statute are met. Accordingly, the trial court had the authority to entertain Moore’s petition for sentence modification without the consent of the prosecutor. * * *

Moore’s appeal is not moot. The trial court erred in finding that it did not have authority to entertain Moore’s petition for sentence modification on its merits. However, the trial court’s order also stated that the court would deny Moore’s petition due to the seriousness of his crimes and his criminal history; therefore, we affirm the decision of the trial court to deny Moore’s petition for sentence modification. Affirmed.

Brown, J., concurs.
Robb, J., dissents in part and concurs in part with opinion. [which begins, at p. 18] I agree with the trial court that the 2014 amendments to Indiana Code section 35-38-1-17 are not retroactive and that, absent the prosecutor’s approval, the trial court had no authority to entertain Moore’s petition for sentence modification. Therefore, I respectfully dissent from that part of the majority’s decision holding otherwise. * * *

I would hold that Moore’s petition for modification was subject to the terms of the modification statute in effect at the time he was sentenced. According to those terms, prosecutorial consent was required, it was not given, and the trial court properly declined to entertain Moore’s petition.

Though we would do so for different reasons, I concur with the majority’s result affirming the trial court’s denial of Moore’s petition for sentence modification.
[6] Because the revised statute would have no ameliorative effect on Moore’s sentence, we find this Court’s recent discussion of the savings clause in Marley v. State, 17 N.E.3d 335 (Ind. Ct. App. 2014), trans. denied, inapplicable here. Marley, under Indiana Appellate Rule 8, asked this Court to review the appropriateness of his sentence in light of the new criminal code. Marley thus sought to take advantage of the ameliorative effects of the new sentencing provisions, which is not an issue here.

NFP civil decisions today (5):

Cindy Brothers, As Personal Representative of the Estate of Kristopher Stately, Deceased, Alicia Arnold and Tiffany Arnold v. Lake Holiday Enterprises, Inc. (mem. dec.)

John E. Servies v. The Kroger Company (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: A.G., M.G. v. Indiana Department of Child Services (mem. dec.)

Switzer Farms v. Sylvia Switzer, as Trustee of the Frank E. Switzer Revocable Trust (mem. dec.)

Cody Boruff v. Tiffany Boruff (mem. dec.)

NFP criminal decisions today (4):

Khamya Slayton v. State of Indiana (mem. dec.)

Jamie Joe Hardy v. State of Indiana (mem. dec.)

Mark Lax v. State of Indiana (mem. dec.)

Robert Smith v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 22, 2015 01:13 PM
Posted to Ind. App.Ct. Decisions