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Tuesday, December 29, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decision(s)) [Corrected]

For publication opinions today (2):

In John Barkers and Specialty Limos, LLC v. Jason Price, a 12-page opinion, Judge Najam writes:

John Barker and Specialty Limos, LLC (collectively, “Barker”) appeal the trial court’s entry of summary judgment for Jason Price. Barker raises a single issue for our review, which we restate as whether the trial court erred when it interpreted the parties’ contract. We affirm in part, reverse in part, and remand for further proceedings. * * *

Here, Barker asserts that the entry of summary judgment for Price is erroneous for two reasons. First, he asserts that the model year of the van was a term material to his agreement to purchase it, and Price failed to present a certificate of title for a 1994 van. Second, he asserts that the certificate of title was in the name of a third party and, therefore, that Price did not satisfy his obligation to deliver title as provided under the deposit agreement. We address each argument in turn. * * *

In sum, the deposit agreement is not the entire agreement between Barker and Price. Accordingly, the trial court erred when it concluded that the deposit agreement precluded Barker’s claim that the model year was a term material to the parties’ agreement for sale of the van. And we cannot say that the designated evidence otherwise shows that Price is entitled to judgment as a matter of law on this issue. We reverse the court’s entry of summary judgment for Price and remand for further proceedings. On remand, the court shall consider not only the deposit agreement but also extrinsic evidence to determine whether, as between the parties, the model year was a term material to their agreement. * * *

To prevent this issue from recurring on remand, we briefly address Barker’s alternative argument that the trial court erred when it concluded that Price had delivered a valid certificate of title pursuant to the deposit agreement even though the certificate of title was not in Price’s name. In particular, Barker’s only arguments here are, first, that title in a third-party’s name is not clear title and, second, that the Indiana Certificate of Title Act, I.C. §§ 9-17-1-1 to -8-9, controls such issues rather than the sales provisions of the Indiana Uniform Commercial Code. * * *

[T]he trial court correctly rejected Barker’s arguments, and we affirm that portion of the trial court’s judgment.

Thus, we affirm in part, reverse in part, and remand for further proceedings

In Derrell Woods v. State of Indiana, a 20-page, 2-1 opinion, Judge Najam writes:
Derrell Woods appeals the post-conviction court’s denial of his amended petition for post-conviction relief. Woods presents a single dispositive issue for our review, namely, whether the post-conviction court erred when it concluded that Woods was not denied the effective assistance of trial counsel. We reverse. * * *

Two months after Woods’ arrest, the State extended a plea offer to Zook for Woods to plead guilty to Class B felony robbery and two Class D felonies with sentencing left to the trial court’s discretion. That plea would have resulted in a maximum possible aggregate sentence of twenty-six years. The undisputed evidence shows that Zook [R. Brent Zook, Woods’ defense counsel] never communicated that plea offer to Woods and that, if he had, Woods would have accepted the plea. Instead, following a bench trial, the trial court sentenced Woods to forty-five years with ten years suspended.

We hold that Zook rendered ineffective assistance of counsel when he did not communicate the June 23, 2003, plea offer to Woods, which prejudiced Woods when he was convicted of Class A felony robbery and sentenced to forty-five years. We therefore reverse the post-conviction court’s judgment and Woods’ conviction. On remand, we instruct the court and the parties to proceed as if Woods has just received the June 23, 2003, plea offer, and he shall have four business days from the certification of this opinion to accept or reject the offer.

If Woods accepts the offer but the trial court decides not to accept it, then Woods shall have a new trial. See Dew, 843 N.E.2d at 571. Reversed.

Riley, J., concurs.
May, J., dissents with separate opinion. [which begins, at pl 18] When a petitioner appeals the denial of a petition for post-conviction relief, which is a negative judgment, we may reverse only if that petitioner demonstrates “the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). I do not believe Woods has met that burden and, accordingly, I dissent.

NFP civil decisions today (3):

In the Matter of the Termination of the Parent-Child Relationship of: W.M. (Minor Child), and T.O. (Mother) v. Indiana Department of Child Services (mem. dec.)

OmniSource Corporation v. Linda K. Fuller and Greg Fuller (mem. dec.)

Chris E. Harkins v. Quick-Cash Pawn, Inc. (mem. dec.)

NFP criminal decisions today (3):

Dianna Fargo v. State of Indiana (mem. dec.)

Tamarius T. Jennings v. State of Indiana (mem. dec.)

John Taylor v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on December 29, 2015 11:30 AM
Posted to Ind. App.Ct. Decisions