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Thursday, October 20, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (2):

In James A. McGee v. Shanna Kennedy , a 9-page opinion, Judge Bailey writes:

Shanna Kennedy (“Kennedy”) and James McGee (“McGee”) were involved in an automobile accident and litigation ensued. McGee filed an Indiana Trial Rule 12(B)(6) motion to dismiss on statute of limitations grounds and Kennedy filed an Indiana Trial Rule 59 Motion to Correct Error in order to amend the filing date of her complaint. The trial court granted the Trial Rule 59 motion, McGee filed a motion to reconsider, the motion to dismiss was set for hearing, and McGee initiated an appeal. While the appeal was pending, the trial court purportedly granted the motion to dismiss. Lacking jurisdiction, we dismiss the interlocutory appeal.

McGee presents a single, consolidated issue: whether the trial court properly granted Trial Rule 59 relief. Kennedy presents a single, consolidated issue: whether the trial court properly granted McGee’s Trial Rule 12(B)(6) motion to dismiss. We address the procedural and substantive allegations of the parties to the extent necessary to resolve an issue that we raise sua sponte: whether there is subject matter jurisdiction to hear the appeal. * * *

In essence, Kennedy sought a summary means to amend her complaint by presenting an affidavit and asking the trial court to correct error with reference to Trial Rule 59. McGee, in turn, filed an “exhibit.” (App. at 25.) Kennedy could not, however, simply circumvent summary judgment proceedings by referencing Trial Rule 59 and obtaining a generic ruling thereon. We do not consider her pre-trial motion to be a “timely” filing of a Motion to Correct Error defined as a final judgment by Appellate Rule 2(H)(4).3 Likewise, McGee could not deprive Kennedy of the opportunity to amend her complaint and obtain a final disposition by means of a dismissal while an appeal pended. In short, the procedures employed did not result in a final judgment, that is, one which disposes of all claims as to all parties. With no final judgment before us, we dismiss the interlocutory appeal.

In State of Indiana v. Tyson Timbs and a 2012 Land Rover LR2, a 13-page, 2-1 opinion, Judge Mathias writes:
The State of Indiana filed a complaint for forfeiture in Grant Superior Court seeking to obtain a 2012 Land Rover LR2 owned by Tyson Timbs (“Timbs”). The trial court ruled in favor of Timbs, and the State appeals, presenting one issue, which we restate as whether the trial court erred in concluding that forfeiture of Timbs’s vehicle would constitute a constitutionally excessive fine. We affirm. * * *

Forfeiture of the Land Rover, which was worth approximately four times the maximum permissible statutory fine, was grossly disproportionate to the gravity of Timbs’s offense. We therefore affirm the trial court’s conclusion that forfeiture of the Land Rover violated the Excessive Fines Clause of the Eighth Amendment.

Vaidik, C.J., concurs.

Barnes, J., dissents with opinion. [that begins, on p. 12, and concludes] I am keenly aware of the overreach some law enforcement agencies have exercised in some of these cases. Entire family farms are sometimes forfeited based on one family member’s conduct, or exorbitant amounts of money are seized. However, it seems to me that one who deals heroin, and there is no doubt from the record we are talking about a dealer, must and should suffer the legal consequences to which he exposes himself.

Timbs dealt heroin and got caught. I vote to reverse the trial court’s denial of the State’s forfeiture request.

NFP civil decisions today (3):

Michael A. Wilson v. State of Indiana and Allen County Courts (mem. dec.)

Sondra Rabin v. S.T.M. Enterprises, LLC (mem. dec.)

Eric Leo Kamradt v. Theresa Ann Kamradt (mem. dec.)

NFP criminal decisions today (10):

State of Indiana v. Kevin Ford (mem. dec.)

Elexus Lloyd v. State of Indiana (mem. dec.)

Clifford M. Lawrence v. State of Indiana (mem. dec.)

Ra'Dreeka Gillespie v. State of Indiana (mem. dec.)

Bernie C. Harmon v. State of Indiana (mem. dec.)

Johnny Dutrayl McSwain v. State of Indiana (mem. dec.)

Jeffrey S. Heironimus v. State of Indiana (mem. dec.)

Timothy Hooker v. State of Indiana (mem. dec.)

Elijah Roberson v. State of Indiana (mem. dec.)

Dyshaun Tyrell Elliott v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 20, 2016 11:09 AM
Posted to Ind. App.Ct. Decisions