« Ind. Gov't. - "No more stringent" back again | Main | Ind. Decisions - Transfer list for week ending January 15, 2016 »

Tuesday, January 19, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (3):

In Amici Resources, LLC and Solid Foundation Investment Properties, Inc. Partnership; Solid Foundation Investment Properties, Inc.; Gary Hippensteel; et al. v. The Alan D. Nelson Living Trust, et al., a 15-page opinion, Judge Bradford writes:

Sabine Matthies obtained a judgment against Solid Foundations Investment Properties, Inc. (“SFIP”) on December 10, 2012. Gary Hippensteel is the director and president of SFIP. SFIP subsequently purchased a property located on Central Avenue in Indianapolis (the “Central Avenue property”). In order to purchase the property, SFIP borrowed money from the Alan D. Nelson Living Trust (the “Nelson Trust”). In exchange for the necessary financing, SFIP executed a mortgage granting the Nelson Trust a security interest in the Central Avenue property. SFIP also signed a Promissory Note, in which it promised to repay the funds borrowed from the Nelson Trust. SFIP also entered into a partnership with and borrowed money from Amici Resources, LLC (“Amici”) to cover renovations to the Central Avenue property. SFIP executed a secondary mortgage granting Amici a security interest in the Central Avenue property.

Matthies subsequently sought to enforce her judgment lien against SFIP. The Nelson Trust argued that it held a purchase-money mortgage, and therefore had first priority against the Central Avenue property. The Central Avenue property was sold on June 2, 2014. Pursuant to a court order, $40,000 of the sale proceeds was held in escrow by the Marion County Clerk’s Office.

On May 28, 2015, the trial court issued an order in which it determined that the Nelson Trust’s lien against the Central Avenue property had first priority and that Amici’s lien against the Central Avenue property had second priority. The trial court ordered that the $40,000 be paid to the Nelson Trust. The trial court also entered a $39,000 judgment against Hippensteel and SFIP, jointly and severally, in favor of Amici.

On appeal, Matthies contends that the trial court erred in determining that both the Nelson Trust and Amici liens had priority over her lien. Concluding that the Nelson Trust lien had priority over Matthies’s lien but that Matthies’s lien had priority over Amici’s lien, we affirm the judgment of the trial court in part, reverse in part, and remand with instructions. We also deny the Nelson Trust’s counter-claim request for appellate attorney’s fees.

In Cary R. Coleman v. State of Indiana, a 7page opinion, Judge Altice writes:
Cary R. Coleman appeals a judgment against him for the civil infraction of Speeding. Coleman presents a number of issues, one of which we find dispositive: Did the trial court err in concluding that the altered speed limit established by Lawrence County Ordinance 5-2-1 was effective in the absence of signage giving motorists notice of the altered speed limit? We reverse. * * *

[I]t is undisputed that there are no signs on Leesville Road notifying northbound motorists of the altered speed limit. Thus, pursuant to I.C. § 9-21-5-6(c), the altered speed limit was not effective as to northbound traffic, and the default speed limit of 55 miles per hour was applicable. Because Coleman was alleged to have been traveling at 46 miles per hour, he did not commit the civil infraction of speeding.

We reject the State’s argument that judgment against Coleman was nevertheless appropriate because he had actual knowledge of the 35-mile-per-hour speed limit due to his familiarity with the area and the presence of other speed limit signs nearby, including one on Leesville Road facing southbound traffic. I.C. § 9-21-5-6 sets forth the procedure a local jurisdiction must follow for an altered speed limit to be effective, including placing signs notifying motorists of the altered speed. A specific motorist’s subjective knowledge of the speed limit is irrelevant. Even if we assume the southbound sign was valid, a point Coleman disputes, the fact remains that there were no speed limit signs controlling northbound traffic on Leesville Road. Indeed, the State conceded as much in its motion for summary judgment, noting that there were no signs facing northbound traffic and that the sign facing southbound traffic was “irrelevant.”
Because there were no “appropriate signs giving notice of the altered speed limit” to northbound drivers on Leesville Road, the statewide default speed limit of 55 miles per hour was applicable. See I.C. § 9-21-5-6(c). As Coleman did not exceed that speed, the judgment against him was in error.

In Chauncy Rhodes v. State of Indiana, 14-page decision with three opinions, Judge May writes for the majority:
Chauncy Rhodes appeals his conviction of Class D felony possession of marijuana with a prior conviction of possession of marijuana. As the trial court abused its discretion when it admitted evidence obtained from an inventory search of Rhodes’ vehicle, we reverse. * * *

The State did not provide sufficient evidence of police procedure and Officer Greathouse’s compliance therewith. Therefore, the trial court abused its discretion when it admitted the marijuana found in Rhodes’ car. Accordingly, we reverse Rhodes’ conviction of Class D felony possession of marijuana with a prior conviction. Reversed.

Barnes, J., concurs with separate opinion. [which begins, at p. 10] I fully concur with Judge May’s conclusion that the search here fell far short of the requirements for a constitutional inventory search.

I write to explicitly and directly address the concerns that may arise as a result of our decision. * * *

Crone, J., dissents with separate opinion. [which begins, at p. 12] I respectfully disagree with the majority’s conclusion that the scope of Officer Greathouse’s inventory search of Rhodes’s vehicle was unreasonable. I believe that the majority unduly emphasizes what the record does not show about IMPD’s inventory search procedure instead of what the record does show.

NFP civil decisions today (2):

Eric P. Hewitt v. Buckingham Management, LLC (mem. dec.)

Paula R. (Brenay), now Hicks v. David C. Brenay (mem. dec.)

NFP criminal decisions today (2):

Hobert C. Lamb v. State of Indiana (mem. dec.)

Shamir Chappell v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 19, 2016 11:37 AM
Posted to Ind. App.Ct. Decisions