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Tuesday, June 30, 2015

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 29 NFP memorandum decisions)

For publication opinions today (6):

In Wilmington Savings Fund Society, FSB, Not In Its Individual Capacity But Solely as Trustee for the Primestar-H Fund I Trust v. Ty Bowling and Asset Acceptance, LLC, a 9-page opinion, Sr. Judge Garrard writes:

Ty Bowling executed a promissory note and secured the note by executing a mortgage on property located in Madison, Indiana. He later defaulted on the note. A complaint was filed naming Bowling and a judgment lien holder, Asset Acceptance, LLC, as defendants to the action. Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Trustee for the Prime Star-H Fund I Trust, brings this interlocutory appeal from the trial court’s order granting partial summary judgment in favor of Wilmington on the issue of enforcement of the note but finding genuine issues of material fact existed precluding entry of summary judgment on the mortgage foreclosure. We affirm. * * *

The trial court did not err by denying summary judgment on foreclosure of the mortgage and granting it on the note.

In Tikidanke Bah v. Mac's Convenience Stores, LLC d/b/a Circle K and David Ruffin , a 25-page, 2-1 opinion, Judge Crone writes:
Tikidanke Bah was a store manager for Mac’s Convenience Stores, LLC d/b/a Circle K (“Circle K”). Bah’s supervisor, David Ruffin, suspected that she had stolen money from the store, which she denied. Ruffin terminated Bah’s employment and contacted the police. The prosecutor charged Bah with theft. After a trial, the jury found her not guilty.

Bah filed a complaint against Circle K and Ruffin (collectively “Appellees”) asserting eight counts: false imprisonment, two counts of defamation, malicious prosecution, negligent supervision, vicarious liability, intentional infliction of emotional distress, and negligent infliction of emotional distress. Appellees filed a motion for summary judgment as to all eight counts as well as a motion to strike certain evidence designated by Bah. * * *

We affirm the trial court’s grant of summary judgment in Appellees’ favor on Bah’s claims for negligent supervision, negligent infliction of emotional distress, and malicious prosecution. As to the remaining claims, we reverse and remand for further proceedings.

Pyle, J., concurs.
Brown, J., dissents with opinion. [which begins, at p. 23] I concur with the majority as to its conclusions in Sections 1, 2.1, and 2.2, but respectfully dissent from its conclusion that the Appellees are not entitled to summary judgment on Bah’s remaining claims based on the qualified privilege defense.

In Lawrence J. Anderson v. State of Indiana , a 7-page opinion, Chief Judge Vaidik writes:
The Indiana Supreme Court has held that walking through an open door does not satisfy the “breaking” element of burglary—but opening an unlocked door does. In this case, the defendant “rushed” a victim to gain unauthorized entry into a dwelling when the door was voluntarily opened for another person whom the victim was expecting. We find that “rushing” someone to gain unauthorized entry is sufficient evidence of force used. Thus, we affirm the defendant’s conviction for Class A felony burglary.
In Scott Grundy v. State of Indiana , a 19-page opinion, Judge Najam writes:
Scott Grundy appeals his conviction for Aggravated Battery, a Class B felony, and his habitual offender adjudication. Grundy presents three issues for our review, which we revise and restate as:

1. Whether the State presented sufficient evidence to support his conviction.
2. Whether his sentence is inappropriate in light of the nature of the offense and his character.
3. Whether the trial court erred when it enhanced his sentence under the prior version of the habitual offender statute.

We affirm Grundy’s conviction and his sentence, and we hold that the July 1, 2014, revisions to the habitual offender statute, Indiana Code Section 35-50-2-8, do not apply retroactively to offenses committed prior to the effective date of our new criminal code.

In Saundra S. Wahl v. State of Indiana, a 30-page, 2-1 opinion involving a daycare facility, Judge Riley concludes:
Based on the foregoing, we conclude that (1) there was sufficient evidence to support Wahl’s conviction for involuntary manslaughter; (2) the trial court did not abuse its discretion in denying Wahl’s motion to correct error based on jury misconduct; (3) Wahl’s sentence is appropriate; and (4) the trial court did not abuse its discretion in ordering restitution. Affirmed.

Barnes, J. concurs
Bailey, J. dissents with separate opinion [which begins, at p. 26] I respectfully dissent, because cumulative error denied Wahl a fair trial. I am convinced that the alternate juror crossed a line in his persistent efforts to influence the duly-selected jurors. Even more egregious, Wahl’s Involuntary Manslaughter conviction was achieved by merging regulatory concepts into the definition of recklessness as set forth by our Legislature in the Criminal Code. Administrative code provisions, State’s Exhibit 65, were submitted as “evidence.” The practical effect, however, was that the provisions were used to supplement the trial court’s instruction on the law and the jury was, in essence, invited to impose a form of strict criminal liability for a child care provider’s non-compliance with provisions of an administrative code. In light of the very tragic events, the jury complied.

In Daniel P. Wahl v. State of Indiana , a 24-page, 2-1 opinion in a case involving a daycare facility, Judge Riley concludes:
Based on the foregoing, we conclude that (1) there was sufficient evidence to support Wahl’s conviction for involuntary manslaughter; (2) the trial court did not abuse its discretion in denying Wahl’s motion to correct error based on jury misconduct; (3) Wahl’s sentence is appropriate; and (4) the trial court did not abuse its discretion in ordering restitution. Affirmed.

Barnes, J. concurs
Bailey, J. dissents with separate opinion [which reads in full, on p. 24] For the reasons expressed in my dissent in Saundra Wahl v. State, No. 29A04-1409-CR-418, I respectfully dissent.

NFP civil decisions today (4):

Starla Gough v. Dale Gough (mem. dec.)

Theodore Miller v. LVNV Funding LLC (mem. dec.)

In the Matter of the Paternity of H.J., Melissa R. Jallow v. William R. Fat-Anthony (mem. dec.)

Brittany N. Veal v. Indiana Department of Workforce Development (mem. dec.)

NFP criminal decisions today (25):

T.D.G. v. State of Indiana (mem. dec.)

J.E. v. State of Indiana (mem. dec.)

Lamarr T. Crittenden v. State of Indiana (mem. dec.)

Richard Lebron v. State of Indiana (mem. dec.)

Cory C. Carter v. State of Indiana (mem. dec.)

Donald Probst v. State of Indiana (mem. dec.)

Duane R. Tackett v. State of Indiana (mem. dec.)

Michael A. Powers v. State of Indiana (mem. dec.)

Estel Lynn v. State of Indiana (mem. dec.)

Demetrius Howell v. State of Indiana (mem. dec.)

Ivan Green v. State of Indiana (mem. dec.)

Charles Sweeney v. State of Indiana (mem. dec.)

Brian E. Connell v. State of Indiana (mem. dec.)

Jesse E. Kaufman v. State of Indiana (mem. dec.)

Tierra Greene v. State of Indiana (mem. dec.)

Marvin T Boothe, Jr. v. State of Indiana (mem. dec.)

Allen Moore, Jr. v. State of Indiana (mem. dec.)

Ronald Longer v. State of Indiana (mem. dec.)

Glenda Helton v. State of Indiana (mem. dec.)

Reginald Gant v. State of Indiana (mem. dec.)

Devynn Dixon-McNairy v. State of Indiana (mem. dec.)

Tony Dean v. State of Indiana (mem. dec.)

Leon Payne v. State of Indiana (mem. dec.)

Kevin M. Plummer v. State of Indiana (mem. dec.)

Michael L. Bowling v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on June 30, 2015 12:15 PM
Posted to Ind. App.Ct. Decisions