« Law - More on the differences between the Georgia Code and the Indiana Code; plus the Indiana Courts' agreements with private publishers | Main | Ind. Decisions - Supreme Court issues one opinion today, re definition of "claim" in the Probate Code »

Tuesday, August 04, 2015

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (4):

In Richard Zeller, Jr. v. AAA Insurance Company, an 8-page opinion, Judge Crone writes:

Richard Zeller, Jr., purchased a homeowners insurance policy from AAA Insurance Company (“AAA”) that provided for reinstatement of the policy if the policyholder paid a premium installment after the cancellation date. Pursuant to the policy, the reinstatement would be void and the policy would remain cancelled if (1) the premium payment was not honored for any reason or (2) a claim under the policy arose from an event that occurred between the cancellation date and the date that AAA received the payment. Zeller failed to pay a premium installment by the cancellation date but mailed a payment that AAA later accepted. Two days after AAA accepted payment, Zeller’s garage was damaged by fire. He submitted a claim to AAA, which denied coverage on the basis that the policy was “not in force” on the day of the fire. Appellant’s App. at 82. Zeller filed a complaint against AAA alleging breach of contract and bad faith and requesting compensatory and punitive damages. After a bench trial, the trial court ruled against Zeller on the basis that there was no evidence that AAA reinstated the policy.

On appeal, Zeller argues that the trial court’s ruling is erroneous because the policy was reinstated when AAA accepted his payment. We agree. Therefore, we reverse and remand for further proceedings.

In Brian Young, Dave Wells, Steve Richmond, and Tim Corbett v. Henry Davis, Jr., an 11-page opinion, Judge Baker writes:
Brian Young, Dave Wells, Steve Richmond, and Tim Corbett (collectively, the Officers) appeal the trial court’s order dismissing their complaint against Henry Davis. The Officers filed a lawsuit against Davis, a government employee, and two governmental agencies for actions he took while a government employee. After the Officers voluntarily dismissed the governmental entities from the complaint, the trial court granted Davis’s motion to dismiss based on the Indiana Tort Claims Act (ITCA). Finding that the dismissal was erroneous, we reverse and remand for further proceedings. * * *

The Officers are South Bend Police officers, and Davis is a member of the South Bend Common Council (Common Council). On August 9, 2012, Davis sent the United States Department of Justice a letter accusing the Officers of racially-based misconduct. In January 2014, the Officers learned that Davis had allegedly either listened to tapes of the officers’ illegally-recorded private telephone conversations or that he had talked to someone who had listened to those tapes. Subsequently, Davis allegedly posted comments on his Facebook page regarding what he had heard.

In Dylan R. Smart v. State of Indiana, a 10-page opinion, Judge Barnes writes:
Dylan Smart appeals his convictions for Class D felony possession of methamphetamine and Class D felony unlawful possession of a syringe. We affirm in part and reverse in part. * * *

Following Bookwalter, the State was required to demonstrate that methamphetamine, which Smart admitted to injecting, was covered by the Legend Drug Act. Smart concedes that “methamphetamine hydrochloride” is a legend drug but argues that “methamphetamine” is not listed as a legend drug. According to Smart, the State failed to present any evidence that the methamphetamine that he admitted to injecting is the same substance as methamphetamine hydrochloride. * * *

We cannot say that whether the methamphetamine injected by Smart qualifies as methamphetamine hydrochloride is a fact “not subject to reasonable dispute” or a fact that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”1 Evid. R. 201(a). On appeal, without citing any authority, the State merely argues that “it is apparent that ‘methamphetamine hydrochloride’ is simply the formal name for the drug.” Appellee’s Br. p. 15. We simply cannot make that connection based on the evidence presented. Consequently, we conclude that the State failed to present evidence that Smart possessed a syringe with the intent to violate the Legend Drug Act. The evidence is not sufficient to sustain this conviction.

Any error in the admission of the field test results was harmless. We conclude that the evidence is sufficient to sustain Smart’s conviction for Class D felony possession of methamphetamine, but the evidence is insufficient to sustain his conviction for Class D felony unlawful possession of a syringe. We affirm in part and reverse in part.

In Stephen Ferguson v. State of Indiana, a 9-page opinion, Sr. Judge Sharpnack writes:
Stephen Ferguson appeals from his conviction of two counts of Class A felony child molesting, contending that the trial court committed errors which individually and cumulatively amounted to reversible error denying Ferguson a fair trial. We affirm.

Ferguson presents the following issues for our review:
I. Whether the trial court abused its discretion by failing to inform the jury that certain testimony had been struck from the record;
II. Whether the trial court acted as a witness during trial in violation of Indiana Rule of Evidence 605; and
III. Whether the errors cumulatively amount to fundamental error.

NFP civil decisions today (4):

Bethany Koorsen v. Benjamin Koorsen (mem. dec.)

In the Matter of the Paternity of A.D., State of Indiana Ex. Rel., E.M.W. v. J.M.D. (mem. dec.)

Sharla C. Williams v. TradeWinds Services, Inc., Board of Directors of TradeWinds Services, Inc., Jon Gold in his individual capacity and official capacity (mem. dec.)

Grant Johnson, Minor Child, by his Mother and Father, Don Johnson and Janice Johnson v. South Spencer School Corp. and Cliff Hagan's Boys' Club of Owensboro, Kentucky, Inc. (mem. dec.)

NFP criminal decisions today (4):

Dustin E. McGuire v. State of Indiana (mem. dec.)

Kobe Blake v. State of Indiana (mem. dec.)

Tony E. Rice v. State of Indiana (mem. dec.)

Kimtai Wilkerson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 4, 2015 11:48 AM
Posted to Ind. App.Ct. Decisions