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Thursday, September 08, 2016

Ind. Decisions - Court of Appeals issues 8 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (8):

In Thomas A. Carpenter, et al. v. The Cincinnati Specialty Underwriters Insurance Company, a 26-page opinion, Judge Crone writes:

This case arises from an incident at Lovell’s Lounge and Grill, in which Thomas A. Carpenter was injured by Jerry Dean Johnson. Carpenter, Lovell’s Lounge and Grill, LLC, and Jeremy Lovell d/b/a Lovell’s Lounge and Grill (collectively “Appellants”) appeal the judgment in favor of The Cincinnati Specialty Underwriters Insurance Company (“CSU”) on its action seeking a declaratory judgment regarding its obligations under its insurance policy with Lovell’s Lounge. In that judgment, the trial court found that CSU had no obligation to make payments under a consent judgment (“the Consent Judgment”), in which Carpenter and Lovell’s Lounge agreed that Carpenter’s injuries were caused by Lovell’s Lounge negligence or that Lovell’s Lounge was vicariously liable for Johnson’s negligence. Appellants argue that the trial court erred in finding that the Consent Judgment was the product of bad faith or collusion, and therefore collateral estoppel does not require CSU to be bound by the determinations of liability and damages in the Consent Judgment. Because we conclude that CSU has carried its burden to show by clear and convincing evidence that the Consent Judgment was the product of bad faith or collusion, we conclude that the trial court did not err in finding that collateral estoppel does not require CSU to be bound by the Consent Judgment. Therefore, we affirm.

In Jordache White and American Transport, LLC, and Canal Insurance Company v. George Reimer, a 13-page opinion, Judge Najam concludes:

In sum, we agree with the trial court that, under the facts and circumstances of this case, Reimer’s service on White at his Thebes, Illinois, address and service on American Transport through the Secretary of State was reasonably calculated to inform the Appellants that an action had been instituted against them, was effective under the Indiana Trial Rules, and was consistent with due process. Accordingly, we affirm the trial court’s order denying the Appellants’ joint motion to set aside the default judgment.

In Carl Wayne Montgomery v. Patricia Ann Montgomery, a 26-page opinion, Judge Barnes concludes:

The trial court clearly erred in granting Mother’s petition to modify custody, as there was insufficient evidence of a substantial change in circumstances justifying modification or that modification was in A.M.’s best interests. We reverse the modification of custody and remand for primary physical custody and sole legal custody of A.M. to be returned to Father, with parenting time for Mother in accordance with the Indiana Parenting Time Guidelines. Additionally, the trial court abused its discretion in awarding attorney fees to Mother, and we reverse that award as well.

In V. Ganz Builders and Development Co., Inc., and Vladimir Ganz v. Pioneer Lumber, Inc., a 21-page opinion, Judge Crone writes:

V. Ganz Builders and Development Co., Inc. (“VGB”), signed an application for a line of credit with Pioneer Lumber, Inc. (“Pioneer”), and also signed a credit account agreement. The line of credit was secured by a personal guaranty agreement signed by VGB’s president, Vladimir Ganz. Pioneer sued VGB and Ganz (collectively “Appellants”) for breach of contract and to enforce the guaranty. Appellants filed a counter motion for summary judgment, asserting that Pioneer’s claims were time-barred by the applicable statute of limitations. The trial court denied the motion, finding that Appellants waived this defense by failing to plead it in their answer to Pioneer’s complaint. After a bench trial, the court entered judgment in Pioneer’s favor. Appellants filed a motion to correct error, which was denied.

Appellants now appeal. As preliminary matters, Pioneer contends that Appellants failed to preserve their appellate rights and that they may not challenge the summary judgment order. Because Appellants’ motion to correct error was timely filed, and because the summary judgment order was not a final judgment, we disagree. For their part, Appellants assert that the trial court erred in finding that they waived their statute of limitations defense and in denying their counter motion for summary judgment. Because Pioneer has not affirmatively shown that it was prejudiced by Appellants raising the defense on summary judgment, and because Pioneer’s claims against Appellants were untimely filed, we reverse and remand with instructions to enter summary judgment in Appellants’ favor.

In In the Matter of J.B. and L.B.: J.J. (Mother) v. The Indiana Department of Child Services, a 10-page opinion on a motion for rehearing, Chief Judge Vaidik writes:

The Indiana Department of Child Services petitions for rehearing following our June 8, 2016 opinion in which we held that the CHINS court lost jurisdiction as soon as it discharged the parties, at which point the issue of custody reverted to the paternity court. DCS argues that the CHINS court’s custody-modification order survived the termination of the CHINS proceeding. * * *

Given that there are problems with each reading of subsection (d), we will not guess what the legislature meant when it said “[a]n order establishing or modifying paternity of a child by a juvenile court survives the termination of the [CHINS] proceeding.” We therefore ask the legislature to take a deeper look at Sections 31-30-1-12 and -13 in light of these issues. As a result, we reach the same result as our original opinion but for different reasons by looking beyond the language of Section 31-30-1-13 and turning our attention to the policy and purpose of the CHINS statutory scheme. * * *

It is clear that the policy and purpose of the CHINS statutory scheme is not to remove children from their parents without giving the parents a reasonable opportunity to participate. But this goal was not furthered in this case. That is, DCS used the coercive power of the State to insert itself into a family relationship by obtaining a CHINS finding and then had the CHINS court modify sole custody to Father and close the CHINS case thirty days later— without entering a dispositional decree and giving Mother a meaningful opportunity to participate in services that DCS itself had recommended in both the petition for parental participation and the predispositional report. This is particularly troublesome given that a CHINS adjudication has adverse consequences for parents. See Ind. Code § 31-35-2-4(b)(2)(B)(iii) (providing that two separate CHINS adjudications can be the basis for a petition to terminate parental rights). We therefore reverse that part of the CHINS court’s order that discharged the parties and terminated the CHINS case and remand this case for further proceedings consistent with the CHINS statutes, including any appropriate services for Mother.

In Donald J. Burns v. State of Indiana , a 12-page opinion, Sr. Judge Sharpnack writes:

Donald Burns appeals his convictions for murder, a felony, two counts of forgery, as Class C felonies, theft as a Class D felony, and two counts of receiving stolen property, as Class D felonies. He also was found to be an habitual offender. He alleges the trial court abused its discretion when it admitted certain photographs at trial, and that there is insufficient evidence of his intent to kill the victim to support a conviction of murder. We affirm.

In Jason Tibbs v. State of Indiana, a 38-page opinion, Judge Barnes concludes:

The trial court did not abuse its discretion by excluding the third-party perpetrator evidence Tibbs sought to introduce, nor was it fundamental error to exclude evidence Tibbs wanted to use to either impeach the investigation into Rison’s murder or Freeman’s testimony. The trial court properly denied Tibbs’s Trial Rule 60(B) motion for relief from judgment. We affirm.

In Royce Love v. State of Indiana, a 22-page, 2-1 opinion, Judge Brown writes:

Royce Love appeals his convictions for mistreatment of a law enforcement animal and resisting law enforcement as class A misdemeanors. Love raises two issues, which we revise and restate as whether the evidence is sufficient to sustain his convictions. * * *

The Court instructed that appellate courts may review video evidence like any other evidence in the record, but reiterated that they may not reweigh the evidence. A question therefore arises regarding the point at which reviewing video evidence, as part of our appellate duty to probe and sift the evidence most favorable to the State to determine whether substantial evidence of probative value exists, becomes impermissible reweighing of evidence. For help answering that question, we find an opinion by the Court of Criminal Appeals of Texas, Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000), instructive. * * *

As was the case in Carmouche, under these narrow circumstances we cannot blind ourselves to the videotape evidence simply because the officers’ testimony may, by itself, support the guilty verdicts. Based upon the record, we cannot say that the officers were acting in the lawful performance of their duties or that Love was forcibly resisting when they tased Love and deployed the dog, and therefore the evidence is insufficient to support Love’s convictions for resisting law enforcement and mistreatment of a law enforcement animal. * * *

For the foregoing reasons, we reverse Love’s convictions for mistreatment of a law enforcement animal and resisting law enforcement as class A misdemeanors. Reversed.

Baker, J., concurs.
Pyle, J., dissents with separate opinion. [which begins, at p. 19] If I were presented with the script of the latest Star Wars movie, The Force Awakens, before it was released, and asked whether it was a good story, I could probably make an independent assessment concluding that it was excellent. However, I would not be in the best position to make that judgment. Quite simply, I did not see the movie. I did not see the mind-blowing special effects; I did not see the facial expressions of the actors giving meaning to the story; I did not hear the humor, passion, and sorrow that filled the voices of the actors; and I did not hear John Williams’s legendary soaring symphony. In fact, my limited perspective would impact the accuracy of my conclusion. As a result, if you really want to know whether the script is good, you need to go to the movie.

Likewise, at the appellate level, my colleagues and I are asked to make judgments based upon the reading of a script, a transcript. However, we are often not in the best position to make decisions about which witnesses to believe or which piece of evidence is most important. This is true because we do not attend the movie; we are not present at the trial or hearing.

NFP civil decisions today (2):

Timothy C. and Sonia E. Platt v. Citimortgage, Inc. (mem. dec.)

J.B. v. Review Board of the Indiana Department of Workforce Development (mem. dec.)

NFP criminal decisions today (3):

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

Charles Gamble v. State of Indiana (mem. dec.)

Robert L. Albores, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 8, 2016 11:12 AM
Posted to Ind. App.Ct. Decisions