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Tuesday, September 22, 2015

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (5):

In U.S. Bank, et al. v. R. Glenn Miller, Jr. et al.; German American Bankcorp v. R. Glenn Miller, Jr., et al., a 30-page opinion involving a case that began over 7 years with "a simple foreclosure of NCM’s mortgage against the Millers’ Newburgh, Indiana property", Judge Kirsch concludes:

We affirm the trial court’s decision to set aside German American’s default judgment, we reverse the trial court’s grant of summary judgment in favor of German American, and we remand to the trial court to decide this case pursuant to I.C. § 32-29-8-4.
Connie Scott-Larosa v. Frank Lewis, a 16-page opinion, Judge Bailey writes:
Constance Scott-LaRosa (“Scott-LaRosa”) filed a small-claims suit against Frank Lewis (“Lewis”) for breach of contract after Lewis moved out of a leased residence the two shared. The trial court entered judgment in favor of Scott-LaRosa and assessed damages against Lewis. Scott-LaRosa filed a motion to correct error, challenging the judgment and seeking an award of additional damages. The trial court denied the motion. * * *

Scott-LaRosa identifies several issues for our review. We restate these as:

I. Whether the trial court clearly erred when it concluded that Scott-LaRosa failed to mitigate her damages; and
II. Whether the trial court clearly erred when it did not grant Scott-LaRosa’s request for payment of her attorney fees by Lewis.

We also address sua sponte a matter related to the power of our trial courts to resolve disputes related to the endorsement and delivery of negotiable instruments. * * *

We address sua sponte an issue that remains outstanding in the trial court’s order: the question of negotiation of the check representing repayment of the security deposit. The trial court concluded that the funds from the security deposit rightfully belonged to Scott-LaRosa, and Lewis does not dispute this on appeal. However, the court observed that the parties could not agree on how to negotiate the instrument and found, “The Court cannot order either party to endorse the check.” * * *

Conclusion. The trial court’s finding of liability as to Lewis, its finding that Scott-LaRosa failed to mitigate her damages, and its conclusion that Scott-LaRosa was not entitled to attorney’s fees were not clearly erroneous. We take the opportunity in this case to remind trial courts of their powers to address certain impasses with respect to the endorsement, delivery, and negotiation of checks and other forms of commercial paper. Affirmed.

In Timothy Kendrick v. Angela Kendrick, a 20-page, 2-1 opinion, Judge Brown writes:
Timothy Kendrick (“Husband”) appeals from the trial court’s decree of dissolution of marriage. He raises one issue, which we revise and restate as whether the court abused its discretion in ordering him to make monthly equalization payments to Angela Kendrick (“Wife”) prior to the distribution of his pension benefits. Wife raises one issue on cross-appeal, which we revise and restate as whether the court abused its discretion in determining and distributing the marital estate. We affirm in part, reverse in part, and remand. * * *

Riley, J., concurs.
Friedlander, Sr. J., concurs in part and dissents in part with separate opinion. [that begins, at p. 19] I would affirm the trial court in every respect, including most notably its division of Husband’s pension, and therefore respectfully dissent in part from the portion of the Majority’s option that remands for further proceedings with respect to that issue. * * *

Although I understand the point the Majority is making in remanding on the stated rationale, it needlessly prolongs this litigation and ultimately serves no purpose. The trial court obviously employed a well-established and well-accepted method in distributing Husband’s pension, and I would let that be the end of the matter.

In Kile Richard Stockert v. State of Indiana, an 11-page opinion, Judge Brown writes:
Kile Richard Stockert (“Stockert”) appeals the trial court’s denial of his petition for declaratory judgment seeking to overturn the Department of Correction (“DOC”) designation that he is a sexually violent predator and offender against children (“SVP”). He raises one issue which we revise and restate as whether the court erred in denying his petition for declaratory judgment. We affirm.
In Jerry A. Smith v. State of Indiana, a 13-page opinion, Judge Barnes writes:
Jerry Smith appeals his forty-year sentence and order of restitution following his convictions for five counts of Class C felony conducting business as a broker-dealer without registering with the Indiana Secretary of State. We reverse and remand.

The issues we address are:
I. whether the trial court properly ordered Smith to pay $410,189.16 in restitution to the five victims; and
II. whether Smith’s forty-year sentence violates statutory limits on sentences for a single episode of criminal conduct. * * *

The State fails to analyze or even mention our earlier opinion in this case. That opinion clearly held that Smith could face prosecution on state charges of failing to register as a broker-dealer because they were entirely different in nature than the federal convictions related to defrauding investors. Our first opinion is the law of the case on that question. Also, the federal charges led to restitution orders with respect to Smith’s Indiana victims. It was Smith’s conduct as charged in federal court that led to the victim’s losses, not his failure to register as a broker-dealer. The State fails to adequately demonstrate that there was anything about Smith’s failure to register as a broker-dealer that caused financial loss to the victims. Smith also did not explicitly agree to pay restitution with respect to these charges. As such, we conclude there is an inadequate legal and factual basis for awarding restitution under Smith’s failure to register as a broker-dealer charges.

We reverse the award of restitution in this case. Furthermore, this is not an instance in which there simply was a failure of proof regarding the amount of restitution, in which case we might remand for the State to have another opportunity to submit proof. See Iltzsch, 981 N.E.2d at 57. Rather, there is no legally tenable basis for awarding restitution in this case, and we will not remand for another hearing. * * *

Next, we address Smith’s argument that his five convictions for failing to register as a broker-dealer constituted a single episode of criminal conduct subject to statutory limitations on sentencing for such crimes. * * *

In light of Study’s language and our holding in Smith’s first appeal, we conclude that Smith committed one single episode of criminal conduct by failing to register as a broker-dealer with the Secretary of State and then knowingly proceeding to transact business without having done so. The precise number of times that Smith transacted business is not the gravamen of the offense; rather, it is his initial failure to register. That failure is a grievance against the Secretary of State and the State as a whole, which by itself did not result in direct harm to the victims. * * *

Therefore, regardless of Smith’s subsequent acts of transacting business without having first registered as a broker-dealer, such acts constitute a single episode of criminal conduct for purposes of Indiana Code Section 35-50-1-2(c). As such, the total sentence Smith may receive is ten years, the advisory sentence for a Class B felony. We reverse the imposition of the forty-year sentence and remand for the trial court to craft a sentence that complies with this opinion, including recalculation of suspended time Smith may receive, if any. Also, by reducing Smith’s total sentence from forty to ten years, we believe it is unnecessary to address his additional argument that his forty-year sentence was inappropriate.

Conclusion. We reverse the restitution order against Smith in this case; of course, the federal court restitution order for these victims is still in place. We also conclude that Smith’s five offenses for failing to register as a broker-dealer constitute a single episode of criminal conduct. We reverse Smith’s sentence and remand for resentencing consistent with this opinion.

NFP civil decisions today (4):

P.J.K. v. L.M.K. (mem. dec.)

Don Campbell v. Anonymous Hospital A, Anonymous Hospital B, and Anonymous Physical Therapist (mem. dec.)

Nick Gandin v. Elina Lefand (mem. dec.)

Wrecks, Inc. v. Amy D. Martin (formerly Amy D. Maurer), and Lawrence A. Maurer (mem. dec.)

NFP criminal decisions today (4):

Joaquin Starks v. State of Indiana (mem. dec.)

Steven Cole v. State of Indiana (mem. dec.)

Aaron G. Bradley, Jr. v. State of Indiana (mem. dec.)

Dequincy Clay v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 22, 2015 12:08 PM
Posted to Ind. App.Ct. Decisions