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Tuesday, May 31, 2016

Ind. Decisions - Court of Appeals issues 7 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (7):

In Joseph C. Lehman v. State of Indiana ,a 14-page opinion with a pro se defendant, Judge Bradford writes:

In February of 2014, the Indiana Supreme Court suspended Appellant-Defendant Joseph Lehman from practicing law in the state of Indiana for not less than two years. In the year following his suspension, Lehman continued to provide various legal services to new and existing clients. Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged Lehman with three counts of Class B misdemeanor practicing law by a non-attorney. After a bench trial, Lehman was found guilty as charged. Lehman raises three contentions for our review on appeal: (1) whether the trial court erred in denying his request for change of judge; (2) whether Lehman waived his right to a trial by jury; and (3) whether there was sufficient evidence to support his convictions. We affirm the trial court in all respects.
In David C. Varble v. Stephanie J. (Carroll) Varble and James T. Carroll; In Re: The Matter of the Paternity of: A.C., A Minor Child, David C. Varble v. Stephanie J. (Carroll) Varble and James T. Carroll, a 16-page opinion, Judge Brown writes:
David C. Varble (“Varble”) appeals the trial court’s denial of his motion for relief from judgment. Varble raises one issue which we revise and restate as whether the court abused its discretion in denying his motion for relief from judgment. We affirm. * * *

Varble argues that a child who is not the biological child of both parties to a dissolution is not a child born of the marriage, that “a dissolution Court does not have subject matter jurisdiction over that child,” * * * and that orders issued without subject matter jurisdiction are void. He requests that we direct the trial court to grant his motion for relief from judgment, find that A.C. was not a child of the marriage of Carroll and Stephanie, and remand for further determinations regarding Carroll’s motions for de facto custody and/or step-parent parenting time.

Carroll maintains that a dissolution decree in which a child is stipulated to be a child of the marriage has the effect of establishing legal paternity and that such orders are not void but are voidable and retain their legal force and effect until successfully challenged or reversed. * * *

Carroll requests this court to affirm the court’s denial of Varble’s motion for relief from judgment and remand for further proceedings on his de facto custody petition. * * *

Based upon the record, we conclude that the trial court did not abuse its discretion in denying Varble’s motion for relief from judgment under Cause No. 631.

In Larry M. New, and Heritage Medical Group, Inc., f/k/a Heritage Medical Services, Inc. v. T3 Investments Corporation, a 17-page opinion, Judge Brown writes:
Larry M. New, and Heritage Medical Group, Inc., f/k/a Heritage Medical Services, Inc. (“Heritage,” and collectively with New, the “Appellants”) appeal the trial court’s Order on the Summary Judgment Motions Filed by the Parties granting summary judgment in favor of T3 Investments Corporation (“T3”) and denying the Appellants’ summary judgment motion. The Appellants raise one issue which we revise and restate as whether the court erred in granting summary judgment in favor of T3 and denying the Appellants’ cross-motion for summary judgment. * * *

We agree with the trial court that consideration is not present between T3 and the Appellants to support the existence of a contractual relationship between them, and that, accordingly, the release contained in the Settlement Agreement is not applicable to T3’s contribution claim.

For the foregoing reasons, we affirm the court’s Summary Judgment Order.

In Faye E. Warfield and Keyotta Warfield a/k/a Nicole Warfield v. Jim Dorey d/b/a JRD Construction Services and JRD Enterprises, LLC, a 16-page opinion, Judge Riley writes:
The Warfields raise six issues on appeal, which we consolidate and restate as the following single issue: Whether the contract between Faye and Dorey is void under the Home Improvement Contracts Act (HICA). * * *

Because Dorey was yet to be licensed at the time he solicited the roofing work and failed to apply for the required permit, we conclude that he committed an incurable deceptive act as he intended to mislead Faye that he was a licensed contractor providing work in compliance with the statutory requirements and local ordinances. See I.C. § 24-5-0.5-2(a)(8). While we acknowledge that “the General Assembly did not intend that every contract made in violation of HICA to automatically be void;” the violation before us is precisely one of the
“well-known abuses found in the home improvement industry” which the HICA intended to protect the consumer against. Imperial Ins. Restoration & Remodeling, Inc. v. Costello, 965 N.E.2d 723, 729 (Ind. Ct. App. 2013); Benge, 855 N.E.2d at 720. Therefore, we declare the Contract between Dorey and Faye void. * * *

Based on the foregoing, we conclude that the trial court abused its discretion affirming the Contract between Faye and Dorey. Declaring the Contract void under HICA, we hold that Dorey can recover the invoiced amounts under the theory of quantum meruit and we remand to the trial court to calculate the prejudgment interest at eight percent per annum.

In Edward Rusnak and Rebecca Rusnak v. Brent Wagner Architects, a 20-page opinion, Judge Robb writes:
In 2006, Edward and Rebecca Rusnak contracted with Brent Wagner Architects (“BWA”) for the design of a home to be constructed on a lot they had recently purchased. Alan R. Sommers Construction Company (“Sommers”), as general contractor, constructed the home between 2008 and 2010. This litigation commenced in 2013 when Sommers sued, seeking to enforce the Rusnaks’ obligation to pay for the home.1 The Rusnaks filed a third party complaint against BWA for breach of contract. BWA filed a motion for summary judgment; shortly after the motion was fully briefed and set for hearing, the Rusnaks filed a motion to amend their third party complaint to add an additional cause of action against BWA. The Rusnaks appeal the trial court’s orders on those motions, raising the following issues for our review: 1) whether the trial court erred in granting summary judgment to BWA, and 2) whether the trial court erred in denying their motion to amend the third party complaint. Concluding the trial court erred in granting summary judgment to BWA and abused its discretion in denying the Rusnaks’ motion to amend, we reverse and remand. * * *

There are issues for the factfinder regarding the nature of BWA’s obligations under the contract and whether it met them; therefore, summary judgment for BWA was improper at this stage. The trial court abused its discretion in denying the Rusnaks’ motion to amend their complaint to add an additional claim because no prejudice will result to BWA. The judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion.

In Tracy K. Barber v. Amy Henry , a 19-page opinion, Judge Riley writes:
Appellant-Respondent, Tracy K. Barber (Father), appeals the trial court’s Order, granting Appellee-Petitioner’s, Amy Henry (Mother), verified petition to modify foreign child support order. We affirm, in part, reverse, in part, and remand with instructions.

Father raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion by calculating Mother’s income at minimum wage when she is a medical doctor and has a historical income in excess of $150,000 but elects to stay at home with her children; and
(2) Whether the trial erred in concluding that Father was responsible for payment of expenses incurred prior to the filing of Mother’s modification petition. * * *

It is not our function to “force parents to work to their full economic potential or make their career decisions based strictly upon the size of potential paychecks.” Buehler, 576 N.E.2d at 1356. Although the trial court could have imputed no income to Mother, here, the trial court allotted Mother the minimum income in its calculation of child support. “While the Guidelines clearly indicate that a parent’s avoidance of child support is grounds for imputing potential income, it is not a necessary prerequisite.” In re Paternity of Pickett, 44 N.E.3d 756, 766 (Ind. Ct. App. 2015). Instead, “it is within the trial court’s discretion to impute potential income even under circumstances where avoiding child support is not the reason for a parent’s unemployment.” Id. Accordingly, the trial court did not abuse its discretion in its calculation of the weekly child support. * * *

Based on the foregoing, we conclude that trial court did not abuse its discretion when it imputed minimum wage to Mother after concluding that she was not voluntarily unemployed. We reverse the trial court with respect to the award of civil attorney fees and remand with instructions to determine which portion of these fees can be attributed to the protective order. We affirm the trial court with respect to all other reimbursement expenses.

In Mark D. Nichols v. State of Indiana , a 17-page opinion, Judge Brown writes:
Mark D. Nichols appeals his convictions for three counts of sexual misconduct with a minor as class B felonies and two counts of sexual misconduct with a minor as class C felonies. Nichols raises two issues which we revise and restate as: I. Whether the trial court abused its discretion in admitting evidence that Nichols did not attend an interview with a detective or ask about the investigation; and II. Whether the admission of testimony by a polygraph examiner and counselor resulted in fundamental error. We affirm.
NFP civil decisions today (5):

In the Term. of the Parent-Child Relationship: B.B. (Minor Child) and P.G. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

James Albert Costello and Lisa Renee Costello v. Wayne Zollman and Teresa Zollman (mem. dec.)

Jennifer Ansari v. Sirius Satellite Radio (Sirius XM) (mem. dec.)

Mary J. Coate v. Timothy D. Coate (mem. dec.)

Carrie Sturdivant v. Michael Sturdivant (mem. dec.)

NFP criminal decisions today (4):

Trevor Rujuwa v. State of Indiana (mem. dec.)

Mathias Gaumer v. State of Indiana (mem. dec.)

Marcus Russell v. State of Indiana (mem. dec.)

Brandy G. Hoebee v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 31, 2016 12:51 PM
Posted to Ind. App.Ct. Decisions