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Wednesday, October 19, 2016

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (6):

In Central Indiana Podiatry, P.C., Northwest Surgery Center, LLC, d/b/a Foot & Ankle Surgery Center, f/k/a Foot & Ankle Surgery Center, LLC and Anthony E. Miller, D.P.M. v. Barnes & Thornburg, LLP, a 23-page ruling with two opinions, Judge May writes:

Central Indiana Podiatry, P.C. (“CIP”), Northwest Surgery Center, LLC d/b/a Foot & Ankle Surgery Center f/k/a Foot & Ankle Surgery Center, LLC (“FASC”), 1 and Anthony Miller, D.P.M. (“Miller”) (collectively “the Miller Parties”) appeal summary judgment for Barnes & Thornburg, LLP (“B&T”). The Miller Parties present multiple issues for our review, which we consolidate and restate as: 1. Whether the Miller Parties’ allegations of fraud preclude B&T from relying on the Release Agreement; and 2. Whether the terms of the Release Agreement preclude the Miller Parties from suing B&T for the alleged acts of malpractice. We affirm.

B&T had provided legal services to Miller, as owner and sole shareholder of CIP and FASC, since the early 1990’s. The current case stems from a disagreement regarding legal fees. * * *

The Miller Parties did not properly present their fraud claims to the trial court because they did not do so in a pleading. The trial court did not err when it granted summary judgment in favor of B&T because the Release Agreement prohibits the Miller Parties from suing B&T for actions taken in the Vogel Federal Litigation. Accordingly, we affirm.

Bailey, J., concurs.
Crone, J., concurs with separate opinion. [that begins, on p. 20] I agree with my colleague’s resolution of the issues presented in this appeal. I write separately, however, to question the wisdom of allowing attorneys to prospectively insulate themselves from liability for future acts of legal malpractice. * * *

Legitimate arguments can be made that lawyers should be allowed to limit liability to clients for past acts of malpractice in arm’s-length negotiations involving independent counsel; this is nothing more than the settlement of an existing claim. But, in my view, allowing lawyers to prospectively limit liability to clients for future acts of malpractice subverts the very nature of the attorneyclient relationship. Until and unless our supreme court abolishes this practice, Hoosiers seeking competent and diligent legal representation may be left to fend for themselves against lawyers who wish to avoid liability for future acts of malpractice.

In Kevin L. Snyder v. Anastasia Snyder, an 8-page opinion, Judge Altice writes:
Kevin L. Snyder (Husband) appeals from the trial court’s order dissolving his marriage to Anastasia Snyder (Wife). Concluding sua sponte that this appeal is untimely, we dismiss.

Because Husband’s motion to reconsider was deemed denied months earlier, his notice of appeal therefrom was untimely. Timeliness aside, the September 29, 2015 order was neither a final judgment nor an appealable interlocutory order. The order was not a final judgment for the same reason as the March 30, 2015 order—it left the valuation and distribution of the Vehicles for a later date and it did not include the “magic language” set forth in T.R. 54(B). Nor does the September 29, 2015 order fall within any of the App. R. 14(A) categories for interlocutory appeals as of right—unlike the March 30, 2015 order, the trial court’s ruling on the motion to reconsider did not include an order for the payment of money. Finally, Husband has not sought or obtained the requisite authorization to pursue a discretionary interlocutory appeal pursuant to App. R. 14(B). Thus, to the extent this is an appeal from the September 29, 2015 order, we lack jurisdiction to entertain it. Appeal dismissed.

In T.A. v. State of Indiana, an 8-page opinion, Sr. Judge Barteau writes:
T.A. appeals the juvenile court’s denial of his petitions for expungement in six juvenile proceedings. We reverse and remand with instructions.

T.A. raises one question of law, which we restate as: whether the juvenile court erred in denying his petition for expungement. * * *

Next, T.A. argues that pursuant to the plain language of the statute, the trial court should have granted the petition because T.A. did not have any pending charges when he filed it. The State responds that, pursuant to statute, the juvenile court was permitted to consider T.A.’s post-petition criminal charge. * * *

The State asserts it would be absurd for the trial court to be allowed to schedule a hearing but disallowed from considering criminal charges that were filed after the petitioner filed the petition for expungement. However, the plain language of section 35-38-9-1(e), as applied to the consideration of whether a petition meets the requirements for expungement, does not contradict any other portion of the statute or the act as a whole. As a result, we must apply the plain language of the statute without recourse to the rules of statutory construction, and we will not read into the statute “a legislative intent other than that which is clearly stated.” Trout v. State, 28 N.E.3d 267, 271 (Ind. Ct. App. 2015). We conclude the court should have determined whether there was a pending criminal charge at the time the petition was filed, as opposed to a later date. As a result, the court erred here in considering T.A.’s post-filing criminal charge. See id. at 272 (trial court that denied petition for expungement erred in considering evidence of another violent act by petitioner that did not result in a conviction, even though the petitioner did not deny committing the act). The State does not claim that T.A.’s petition violated any other provisions of Indiana Code section 35-38-9-1. We must reverse the denial of the petition.

In State of Indiana v. Charles Summers , a 9-page opinion, Chief Judge Vaidik writes:
After being ordered to register as a sex offender in Illinois for ten years, Charles Summers moved to Indiana. Summers later registered as a sex offender in Indiana. When Indiana applied its tolling statute to Summers (in order to extend Summers’ registration period by the amount of time he was incarcerated in Indiana for new crimes committed), Summers claimed that applying the statute to him violated Indiana’s prohibition against ex post facto laws. He argued that when he committed his underlying offense in Illinois, Indiana had not yet enacted its tolling statute. Because Summers was under a tolling requirement in Illinois, we find no punitive burden to maintaining that requirement across state lines. Because there is no ex post facto violation, we reverse the trial court and remand this case. * * *

First, as in Tyson, Summers was a sex offender in Illinois; by moving across state lines, Summers merely maintained his sex-offender status. Second, although Indiana adopted its tolling provision several years after Summers was adjudicated a juvenile delinquent in Illinois, Summers was already under a tolling requirement in Illinois. There is no punitive burden to maintaining both of these requirements across state lines. Because Summers has not established an ex post facto violation, we reverse the trial court’s dismissal of the criminal charges against Summers in Cause No. F6-233 and reverse the trial court’s grant of Summers’ petition to remove his name from the sex-offender registry in Cause No. MI-70. Reversed and remanded.

In Ryan Clark v. State of Indiana, a 6-page opinion, Judge Pyle writes:
Following his participation in a horrific home invasion, Ryan Clark (“Clark”) was convicted of the following sixteen offenses: (1) two counts of rape as Class A felonies; (2) three counts of criminal deviate conduct as Class A felonies; (3) five counts of confinement as Class B felonies; (4) one count of robbery as a Class C felony; (5) one count of carjacking as a Class C felony; (6) two counts of battery as Class C felonies; and (7) two counts of battery as Class A misdemeanors. He now appeals those convictions and argues that the evidence is insufficient to support them. Specifically, he contends that the testimony of victim A.M. (“A.M.”) was incredibly dubious. Finding that the incredible dubiosity rule does not apply in this case, we affirm Clark’s convictions. * * *

Here, our review of A.M.’s testimony reveals that the incredible dubiosity rule simply does not apply in this case. A.M.’s testimony was not inherently contradictory. She never wavered in her identification of Clark and had several opportunities to view his uncovered face, including three times in well-lit conditions. Further, the identifiable mark on Clark’s hip as well as DNA evidence implicating his friend provided circumstantial evidence of Clark’s guilt. Clark’s suggestions that A.M. was too distraught to make a reliable identification or that there was not enough light for her to clearly see the intruders are requests for us to reweigh the evidence. This we cannot do.

In Edward A. Holt, Jr. v. State of Indiana , a 10-page opinion, Judge Pyle writes:
Edward A. Holt, Jr., (“Holt”) appeals his sentence imposed after his guilty plea to two counts of Class C felony child molesting.1 On appeal, he asks us to find that his four year sentence was inappropriate and to reduce or suspend it accordingly. In response, the State requests that we also find Holt’s sentence inappropriate but that we increase it to six years for each conviction. Because we do not find that Holt’s sentence was inappropriate, we affirm. * * *

In light of the nature of Holt’s offenses and his character, we cannot agree with him that his sentence was inappropriate and warrants a reduction in his sentence. As we have also determined that we will not increase his sentence, we affirm the trial court.

NFP civil decisions today (4):

E.F. v. Indiana Department of Child Services (mem. dec.)

Beverly R. Newman v. Meijer, Inc. (mem. dec.)

In the Matter of the Involuntary Term. of the Parent-Child Relationship of A.B. and A.B. (Minor Child) and their Father J.B., J.B. (Father) v. Ind. Dept. of Child Services (mem. dec.)

Gladys Hale and Oma Bolen v. Ricky Handshoe, Gary Handshoe, and Bertha Jimeniz (mem. dec.)

NFP criminal decisions today (5):

Wayne Mitchell v. State of Indiana (mem. dec.)

Leah S. Fink v. State of Indiana (mem. dec.)

Natasha Peters v. State of Indiana (mem. dec.)

Dorris Latrese Dooley v. State of Indiana (mem. dec.)

Jack Hiatt v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 19, 2016 11:20 AM
Posted to Ind. App.Ct. Decisions