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Thursday, July 21, 2016

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (4):

In Manee Edler v. Regions Bank, and Jenner Properties, LLC, an 11-page opinion, Judge Barnes writes:

Manee Edler appeals the denial of her motion to correct error, which sought to set aside the payment of mortgage foreclosure surplus proceeds to Regions Bank (“Regions”). We reverse and remand.

The sole issue we address is whether the trial court’s disbursement of the foreclosure sheriffs’ sale surplus proceeds complied with applicable statutes. * * *

The trial court misinterpreted or misapplied the law regarding disbursement of surplus sale proceeds following a sheriff’s foreclosure sale. As such, it abused its discretion in denying the Edlers’ motion to correct error. We reverse the denial of that motion and remand with instructions that the surplus sale proceeds be disbursed to Manee.

In Maureen Maynard, as Personal Representative of the Estate of Frank Cavazos v. Golden Living in its own capacity and d/b/a Golden Living Center-Sycamore, et al., and Anonymous M.D., et al., a 14-page opinion, Judge Mathias writes:
Maureen Maynard (“Maynard”) as personal representative of the Estate of Frank Cavazos (“Cavazos”) filed a complaint in Howard Superior Court alleging negligence and breach of contract by GGNSC Kokomo LLC d/b/a Golden LivingCenter-Sycamore Village and Hendricks Regional Health d/b/a Golden LivingCenter-Sycamore Village (“Golden Living”). Golden Living filed a motion to dismiss, demand for arbitration, and motion to compel arbitration, which the trial court later granted after a hearing on the matter was held. Maynard now brings this interlocutory appeal and argues that the trial court erred in granting Golden Living’s motion to dismiss, demand for arbitration, and motion to compel arbitration. We affirm.
In William Hunter v. State of Indiana , an 8-page opinion, Judge Bailey writes:
In light of the nature of his offense and his character, we cannot conclude that Hunter’s statutory maximum sentence, with five years to be served on in-home detention, is inappropriate.

“Recommendation of Plea”

We write additionally, sua sponte, to note an unusual and concerning facet of this case. The trial court here was presented with a document captioned as a “Recommendation of Plea” and signed by counsel for both parties and by Hunter himself. The trial court apparently viewed the Recommendation of Plea as something other than a plea agreement, and thus believed it lacked any discretion over whether to accept or reject Hunter’s plea and the State’s dismissal of the remaining charges in exchange for the plea. * * *

The Recommendation of Plea document set forth a quid pro quo arrangement whereby Hunter agreed to enter a guilty plea on one charge, with the State agreeing to dismiss other charges “in exchange therefor.” (App’x at 62.) The document went on to recite—as would a plea agreement—the various representations and waivers ordinarily present in a plea agreement. This included the following text: “I understand that the Court is not bound by this Recommendation of Plea.” (App’x at 62.)

“James Whitcomb Riley (1849-1916), our celebrated ‘Hoosier Poet,’ is widely credited with the origination of the Duck Test; as he expressed it, ‘[w]hen I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.’” Walczak v. Labor Works-Ft. Wayne, LLC, 983 N.E.2d 1146, 1148 (Ind. 2013). This Recommendation of Plea is a duck—or, caption aside, a plea agreement. Trial courts have discretion to accept or reject plea agreements. [cites omitted] Generally, the substance of a pleading or motion governs over its form. [cites omitted] The trial court would, then, have been able to exercise its discretion to decide whether to accept or reject the plea agreement.

In Mikel An Krueger v. State of Indiana , a 7-page opinion, Judge Barnes concludes:
We acknowledge that there were differing expert opinions presented here and that some witness testimony conflicted with other witness testimony. However, resolving those conflicts was the jury’s responsibility. On appeal, we cannot reweigh the evidence or judge the credibility of the witnesses. Bailey, 907 N.E.2d at 1005. We conclude that the State presented sufficient evidence to show that Krueger knowingly or intentionally placed A.G. in a situation that endangered his life or health and resulted in serious bodily injury.

Conclusion. The evidence is sufficient to sustain Krueger’s conviction for Class B felony neglect of a dependent. We affirm.

NFP civil decisions today (1):

B.L. v. J.S. (mem. dec.)

NFP criminal decisions today (5):

Michael C. Stollings v. The State of Indiana (mem. dec.)

Clarence Stout a/k/a Larry Cornell v. State of Indiana (mem. dec.)

Jacoby Sanders v. State of Indiana (mem. dec.)

George Dixon v. State of Indiana (mem. dec.)

Jeremy Michael Neloff v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 21, 2016 10:59 AM
Posted to Ind. App.Ct. Decisions