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Wednesday, August 26, 2015

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

For publication opinions today (4):

In Lydia Lanni v. National Collegiate Athletic Association, University of Notre Dame Du Lac, and United State Fencing Association, Inc., a 30-page opinion, Judge Najam writes:

Lydia Lanni appeals from the trial court’s entry of summary judgment for the National Collegiate Athletic Association (“NCAA”) and the United States Fencing Association, Inc. (“USFA”). In her complaint, Lanni alleged that the NCAA and the USFA sponsored a fencing competition at the University of Notre Dame (“Notre Dame”)[1] in South Bend, which Lanni attended as a student-athlete and at which she suffered a serious eye injury while standing near one of the competitions. She further alleged that her injury resulted from negligence on the part of the NCAA, the USFA, and Notre Dame.

We address the following issues in this appeal:

1. Whether the NCAA owed Lanni a duty of care.
2. Whether the USFA owes a duty of care to those who participate in fencing matches that are played under the USFA’s rules and that are refereed by USFA-trained referees.
3. Whether the trial court erred when the court denied Lanni’s motion for a change of judge on remand from this court following our reversal of an earlier entry of summary judgment. * * *

In sum, the evidence most favorable to Lanni fails to demonstrate that either the NCAA or the USFA owed her a duty of care. Lanni also was not entitled to a new judge following this court’s remand in Lanni I. Thus, we affirm the trial court’s entry of summary judgment for the NCAA and the USFA.
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[1] Notre Dame is also a named defendant in Lanni’s action; Lanni’s claims against Notre Dame remain pending in the trial court.

In Seth Curtis v. State of Indiana, a 20-page opinion, Judge Bradford writes:
On appeal, Curtis contends that the State presented insufficient evidence to sustain his convictions. He also contends that the imposition of judgment of conviction against him and a sentence for both of the armed robbery counts and for both the armed robbery and auto theft counts violated the single larceny rule. We affirm. * * *

Concluding that the evidence is sufficient to sustain Curtis’s convictions and that the imposition of a judgment of conviction and sentence for each of Counts I, II, and IV did not violate the single larceny rule, we affirm the judgment of the trial court.

In Jesse Wharton v. State of Indiana, a 5-page opinion, Judge May writes:
Jesse Wharton appeals his convictions of level 6 felony operating a vehicle while intoxicated with a prior conviction and level 6 felony operating a vehicle with an alcohol concentration equivalent (ACE) of .08 or more with a prior conviction. Wharton asserts his convictions subjected him to double jeopardy because the same act was the basis for both offenses. We affirm in part, vacate in part, and remand with instructions. * * *

Wharton’s protection from double jeopardy was violated by two convictions based on the same act. Therefore, we affirm his conviction and sentence for operating a vehicle while intoxicated, we vacate the conviction of and sentence for operating a vehicle with an ACE of .08 or more with a prior conviction, and we remand to the trial court to amend its order.

In Bruce Ryan v. State of Indiana , a 16-page opinion, Judge Najam writes:
Following this court’s reversal of Bruce Ryan’s convictions on direct appeal but before this court’s opinion was certified as final, Ryan petitioned the trial court for an appeal bond. The court granted Ryan’s petition but placed him under numerous restrictions, which were supervised by the local community corrections program. The Indiana Supreme Court then reversed this court’s decision and reinstated Ryan’s convictions. See Ryan v. State, 9 N.E.3d 663, 673 (Ind. 2014) (“Ryan I”). Ryan spent a total of 429 days under the conditions of his appeal bond, and he never violated any of those conditions. As such, following the reinstatement of his convictions, Ryan moved the trial court for an award of credit time1 for the time he had served under the conditions of the bond.

Ryan now appeals the trial court’s denial of that request, and he and the State present numerous arguments for our review. We hold, as a matter of first impression, that credit time for a defendant’s release on an appeal bond is prohibited under Indiana law. We also hold that, insofar as his arguments require this court to review the conditions of his release on his appeal bond, Ryan’s arguments are moot. Indiana Appellate Rule 18 provided Ryan with clear and immediate opportunity to have the court on appeal review the conditions of his release when they were imposed, but Ryan did not exercise that option. He may not now ask this court to review the conditions of his release under the guise of a request for credit time. Thus, we affirm the trial court’s judgment. * * *

In sum, we hold that Indiana Code Section 35-33-9-5(c) and Appellate Rule 18 prohibit an award of credit time for the time a defendant is released on an appeal bond, regardless of the conditions of the defendant’s release. Cf. Kindred v. State, 172 Ind. App. 645, 648-49, 362 N.E.2d 168, 170-71 (1977) (holding that the defendant had the right to surrender himself while released on his appeal bond in order to accrue credit time). We also hold that, insofar as Ryan’s arguments require this court to review the conditions of his release on his appeal bond, Ryan’s challenge is untimely. Ryan could have sought, but chose not to seek, immediate review of the conditions of his release pursuant to Appellate Rule 18. Having forfeited that remedy, Ryan’s challenge to the conditions of his release is now moot. Thus, we affirm the trial court’s denial of Ryan’s motion for credit time.

NFP civil decisions today (4):

In the Matter of: R.F. (Minor Child), Child in Need of Services and A.P. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Runningman, LLC v. Joshua Nagy and Robert Sak (mem. dec.)

In the Matter of: J.S. (minor child), a Child in Need of Services, and T.S. (mother) v. The Indiana Department of Child Services (mem. dec.)

In Re the Paternity of H.A., A.A. v. R.M. and B.M. (mem. dec.)

NFP criminal decisions today (4):

Patrick Kene Talley v. State of Indiana (mem. dec.)

Malcolm M. Pettis v. State of Indiana (mem. dec.)

Kevin Singh v. State of Indiana (mem. dec.)

Titus D. Fields v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 26, 2015 01:20 PM
Posted to Ind. App.Ct. Decisions