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Monday, May 23, 2016

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

For publication opinions today (4):

In Douglas Costello and Profit Search, Inc. v. Gersh Zavodnik, a 13-page opinion, Chief Judge Vaidik writes:

When Massachusetts resident Douglas Costello posted a used printer on Craigslist in 2009, he could not have predicted that he would spend much of the next seven years locked in a legal battle in Indiana. But he sold the printer—for less than $75—to Gersh Zavodnik, who has a penchant for suing after entering into online transactions. Zavodnik, claiming the printer was defective, sued Costello in small-claims court. He asked for the small-claims maximum of $6000, but Costello defended the case and prevailed, based on the fact that Zavodnik had prematurely disposed of the printer. Unfazed, Zavodnik appealed the matter to superior court, where he was allowed to conduct discovery. Zavodnik sent Costello requests for discovery pursuant to Indiana Trial Rule 36(A), asking Costello to admit, among other things, that he is liable for $30,044.07. Costello, who remained unrepresented following his victory in small-claims court, failed to respond (he later said he never received the requests). When Costello learned that his failure to respond rendered the matters admitted under Rule 36(A), he hired an attorney and moved to withdraw the admissions under subsection (B) of the rule. The trial court, believing itself constrained by our Supreme Court’s interpretation of Rule 36, denied Costello’s motion and awarded Zavodnik a judgment of $30,044.07. In light of Zavodnik’s abuse of Rule 36, we conclude that the trial court should have granted Costello’s motion. * * *

The trial court abused its discretion by partially denying Costello’s motion to withdraw admissions; it should have granted the motion in full. Because the trial court granted summary judgment in favor of Zavodnik based on the unwithdrawn admissions, we reverse the judgment and remand this matter to the trial court. Before conducting any further proceedings, the trial court shall hold a hearing for purposes of determining whether this case should be dismissed pursuant to Trial Rule 41(E), based on Zavodnik’s repeated, flagrant, and continuing failure to comply with Indiana’s rules of procedure.

In Michael Ryan v. TCI Architects/Engineers/Contractors, Inc. and BMH Enterprises, Inc., d/b/a Craft Mechanical , a 15-page, 2-1 opinion, Judge May writes:
Michael Ryan was injured while working on a construction project. Ryan worked for Romines, a subcontractor to Craft, who was a subcontractor to the general contractor, TCI. Ryan sued Craft and TCI, claiming they had a duty to provide him a safe workplace and their breach caused his injury. Ryan moved for partial summary judgment, claiming both defendants had a non-delegable contractual duty toward him. TCI moved for summary judgment on duty, breach, and proximate cause. As TCI had no duty toward Ryan, we affirm. * * *

The TCI contract is more like those in Helms and Shawnee, and it does not impose a duty of care toward the employees of TCI’s subcontractors because the contract terms do not “go beyond requiring that [TCI] merely supervise the work of its employees and subcontractors” as they did in Capitol. Rather, as noted above, TCI “recognizes the importance of” safety, and its Safety Representative is obliged to “supervise the implementation and monitoring” of safety matters. (App. at 71.) We accordingly affirm summary judgment for TCI. Affirmed.

Najam, J., concurs.
Riley, J., dissents with separate opinion. [that begins, on p. 13] I respectfully dissent from the majority’s conclusion that “the TCI contract does not impose a duty of care toward the employees of TCI’s subcontractors because the contract terms do not ‘go beyond requiring that [TCI] merely supervise the work of its employees and subcontractors[.]’” Slip op. p. 12. The majority’s decision is based on an analysis of the contractual language and its close resemblance to Helms, which, in turn, distinguishes it from Stumpf, Capitol, Perryman, and Harris.

By analogizing to Helms and distinguishing from Stumpf, the majority elevates form over substance in its interpretation of the contractual provisions regarding safety.

In Consumer Attorney Services, P.A., et al. v. State of Indiana , a 27-page opinion, Judge Barnes writes:
Consumer Attorney Services, P.A. (“CAS”), The McCann Law Group, LLP (“MLG”), and Brenda McCann (“McCann”) (collectively “the Defendants”) appeal the trial court’s denial of summary judgment against the Attorney General of Indiana (“Attorney General”). We affirm in part and reverse in part.

The issues before us are:
I. whether MLG, CAS, and McCann are exempt from liability under the Credit Services Organization Act under that Act’s exemption for attorneys;
II. whether MLG, CAS, and McCann are exempt from liability under the Mortgage Rescue Protection Fraud Act under that Act’s exemption for attorneys;
III. whether MLG, CAS, and McCann are exempt from liability under the Home Loan Practices Act; and
IV. whether MLG, CAS, and McCann are exempt from liability under the Deceptive Consumer Sales Act. * * *

MLG/CAS is entitled to summary judgment on the Attorney General’s claims against it under the CSOA, the MRPFA, and the HLPA, and as to the claim under the DCSA based upon violations of the CSOA. We reverse the denial of summary judgment with respect to those claims and direct that summary judgment be entered in MLG/CAS’s favor. MLG/CAS is not entitled to summary judgment on the independent DCSA claim for deceptive representations, and we affirm the denial of summary judgment as to MLG/CAS to that extent. McCann personally is not entitled to summary judgment on any of the Attorney General’s claims, and we affirm the denial of summary judgment as to her in its entirety. In conclusion, we presume the Indiana Supreme Court Disciplinary Commission is well aware of MLG/CAS’s and McCann’s activities in this state, given its punishment of Jackson for his association with MLG/CAS.

In James E. Saylor v. State of Indiana, a 23-page opinion, Chief Judge Vaidik writes:
James E. Saylor was convicted of molesting his stepdaughter, pled guilty to being a habitual offender, and was sentenced to 138 years. We affirmed on direct appeal. Saylor then sought post-conviction relief raising numerous issues, including that his trial counsel was ineffective for conceding his guilt to two counts of Class A felony child molesting during closing argument and that his guilty plea to the habitual-offender charge was not knowing, voluntary, and intelligent because he did not personally waive his right to a jury trial.

As for Saylor’s ineffective-assistance claim, Saylor’s defense at trial was that he did not commit the crimes, and defense counsel consistently argued this during closing argument. Nevertheless, in making a point about the State’s medical evidence, defense counsel inadvertently said that Saylor “was not the only person that was having sex with” the victim. Given Saylor’s consistent defense and the fact that the State did not capitalize on this statement during its rebuttal argument, we find that defense counsel’s inadvertent statement, although a mistake, was not a judicial admission to two counts of Class A felony child molesting. And in light of the overwhelming evidence of Saylor’s guilt, we find that there is not a reasonable probability that, but for defense counsel’s mistake, the result of the proceeding would have been different.

As for Saylor’s argument that he did not personally waive his right to a jury trial on the habitual-offender charge, the Indiana Supreme Court recently reaffirmed the personal-waiver requirement when a defendant proceeds to a bench trial in Horton v. State, No. 79S02-1510-CR-628 (Ind. Apr. 21, 2016). Although this case involves a guilty plea—and not a bench trial like in Horton—and there is a different statute that governs guilty pleas, we find that the same rationale applies when a defendant waives his right to a jury trial when pleading guilty. Accordingly, because Saylor did not personally waive his right to a jury trial— rather, his attorney did—when he pled guilty to being a habitual offender, we vacate his habitual-offender adjudication and remand for a new trial on that charge. We affirm the post-conviction court on all other issues that Saylor raises.

NFP civil decisions today (3):

N.H. v. Indiana Department of Child Services (mem. dec.)

Boubacar Mbengue v. Karen M. Novak (mem. dec.)

In the Term. of the Parent-Child Relationship of: J.P. and C.P., Minor Children, and C.T., Mother v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (5):

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

Craylon D. Bell v. State of Indiana (mem. dec.)

Larry Fulbright v. State of Indiana (mem. dec.)

William L. Howard v. State of Indiana (mem. dec.)

Philip H. Chamberlain v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 23, 2016 11:40 AM
Posted to Ind. App.Ct. Decisions