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Wednesday, December 21, 2016

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 22 NFP memorandum decision(s))

For publication opinions today (4):

In Shelby's Landing-II, Inc., Richard Deckard, Jr., Marilyn Deckard, and Deckard Realty & Development Co. v. PNC Multifamily Capital Institutional Fund XXVI Limited Partnership, et al., a 20-page opinion, Judge Pyle writes:

Appellants-Defendants, Shelby’s Landing-II, Inc. (“Shelby’s Landing”); Richard Deckard, Jr. (“Richard”); Marilyn Deckard (“Marilyn”); and Deckard Realty & Development Co. (“Deckard Realty”) (collectively, “the Defendants”), appeal the trial court’s judgment in favor of Appellees-Plaintiffs, PNC Multifamily Capital Institutional Fund XXVI Limited Partnership (“PNC Multifamily”); Columbia Housing SLP Corporation (“Columbia”); and Shelby’s Landing II-L.P. (“the Partnership”) (collectively, “the Plaintiffs”), in their breach of contract claim. The Defendants argue that it was error for the trial court to find that they had misappropriated the Partnership’s funds and committed theft because the Plaintiffs did not raise misappropriation or theft claims in their complaint. They also argue that the trial court abused its discretion by awarding the Plaintiffs an unreasonable amount of attorney fees.

We conclude that, regardless of the trial court’s misappropriation and theft findings and conclusions, there were adequate uncontested findings and conclusions to support the trial court’s judgment. Because we also conclude that the trial court awarded the Plaintiffs a reasonable amount for their attorney fees, we affirm the trial court’s judgment. * * *

Contrary to the Defendants’ arguments—and as the trial court found—there was substantial discovery in this case. Although the Plaintiffs took only one deposition, the record is replete with the substantial and detailed financial records the Plaintiffs’ attorneys had to investigate in order to prove the Defendants’ liability under the Purchase Agreement—an issue that was not resolved through summary judgment. Also, the amount at controversy in both the claim and counter-claim was significant. We do not find it dispositive that the trial court did not compare PNC Multifamily’s legal expenses with the fee customarily charged in the locality for similar services, because the trial court was not obligated to address all of the factors listed in Indiana Professional Conduct Rule 1.5(a). See Cavallo, 42 N.E.3d at 1010. It is clear that the trial court addressed several of the Rule 1.5(a) factors, including the time and labor required, the novelty and difficulty of the questions involved, and the amount in controversy. Based on these factors, we conclude that the trial court did not abuse its discretion in awarding the Plaintiffs $385,125.26 for their attorney fees.

In In re the Termination of the Parent-Child Relationship of: O.G., II (Minor Child) and K.T. (Mother) & O.G. (Father) v. The Indiana Department of Child Services, a 33-page opinion, Judge Baker writes:
O.G. (Father) and K.T. (Mother) appeal the juvenile court’s order terminating their parent-child relationship with O.G., II (Child). Father argues that the juvenile court erred by admitting certain evidence and both parents argue that there is insufficient evidence supporting the termination order. We find that the juvenile court erroneously admitted certain hearsay evidence. We also find that the evidence does not support the order terminating the parent-child relationship with either parent and reverse and remand for further proceedings. * * *

There is an extraordinarily troubling pattern of behavior in this case. The FCM made little to no effort to contact Father at the initiation of the CHINS case. And then, after DCS made its own internal decision that the case plan was to reunify Child with Mother, the FCM’s minimal efforts to engage Father ceased altogether. While Father’s own record is far from sterling, the evidence in the case establishes that, when he was not incarcerated, he made multiple attempts to contact the FCM and engage in services; furthermore, when he was incarcerated or on work release, he participated with services available to him.

Our Supreme Court has recently reemphasized that “‘[t]ermination is intended as a last resort, available only when all other reasonable efforts have failed.’” In re R.S., 56 N.E.3d 625, 631 (Ind. 2016) (quoting In re V.A., 51 N.E.3d 1140, 1151-52 (Ind. 2016)). In this case, it cannot be said that all other reasonable efforts have failed, given that DCS made an explicit internal decision that it would exercise no effort whatsoever to reunify Father with Child, and proceeded to follow through with that plan. Father has made multiple attempts to contact DCS and reengage with services, notwithstanding complete radio silence from the FCM during his periods of incarceration, and has been rebuffed at every turn. He deserves a genuine chance to prove that he can parent his child. It may be that he cannot meet that bar, but he has a constitutional right to try. Under these circumstances, we find that the evidence does not support the juvenile court’s conclusion that Father is unwilling to be a parent to Child; nor does it support the conclusion that termination is in Child’s best interests. Therefore, we reverse and remand for further proceedings.

In Michael D. Cundiff v. State of Indiana, an 8-page opinion, Sr. Judge Shepard writes:
Appellant Michael D. Cundiff appeals the denial of his petition for relief from his lifetime sex offender registration requirement. We conclude that Cundiff is required to register, but that residence restrictions enacted after his conviction do not apply to him. * * *

The trial court did not err in denying Cundiff’s request to vacate the appointment of the special judge. However, the trial court did err by determining that the residency restrictions of Indiana Code section 35-42-4-11 apply to Cundiff. Therefore, we remand this case to the trial court to issue an order so recognizing.

In Will Thomas v. State of Indiana , a 15-page opinion, Judge Bailey writes:
Will Thomas (“Thomas”) was convicted of Dealing in a Narcotic Drug, as a Class A felony. He now appeals. We reverse.

Thomas raises one issue for our review, which we restate as whether the trial court abused its discretion when it admitted into evidence heroin recovered from Thomas after a warrantless arrest following a traffic stop. * * *

Thomas argues on appeal that police lacked the requisite probable cause to arrest, detain, move, and subsequently search him after the traffic stop. Thomas does not challenge the legitimacy of the traffic stop. Rather, he contends that police detention and transportation of him to a police station in order to conduct a strip search was not supported by probable cause and was unreasonable under the totality of the circumstances. Evidence obtained from the detention, Thomas argues, should have been barred from admission into evidence by the exclusionary rule. * * *

In the absence of probable cause to detain Thomas, the police detention and transportation of Thomas to the Marion Police Department was unconstitutional. The drugs obtained from him after he had been transported were thus “fruit of the poisonous tree,” and should have been excluded from evidence at trial. They were not excluded, and they would not have been found had Thomas not been detained. We accordingly conclude that the trial court abused its discretion when it did not exclude the heroin from evidence.

Police violated Thomas’s constitutional rights when they detained and transported him. The trial court erred when it did not exclude evidence obtained as a result of the detention. We accordingly reverse Thomas’s conviction.

NFP civil decisions today (7):

In the Term. of the Parent-Child Relationship of: A.C. (Minor Child) and M.K. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Involuntary Term. of the Parent-Child Relationship of: H.B., E.B., and D.B. (Minor Children); A.B. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

In Re the Guardianship of A.I.K., a Minor: Donal W. Kruchten (mem. dec.)

In the Matter of D.K., Child in Need of Services, N.B. (Mother) v. Indiana Department of Child Services (mem. dec.)

C&R Remodeling, LLC v. City of Hammond, Common Council of the City of Hammond, City of Hammond Department of Planning and Development, and City of Hammond Facade Rebate Committee (mem. dec.)

In the Matter of E.J.-H. & A.J.-H. (Minor Children), Children in Need of Services, and G.J. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Term. of the Parent-Child Relationship of: B.A. and B.S. (Minor Children); C.S. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (15):

Brandon Cunningham v. State of Indiana (mem. dec.)

Elgin A. Fidell v. State of Indiana (mem. dec.)

Keith Cobbs v. State of Indiana (mem. dec.)

Gerald Spaulding, Sr. v. State of Indiana (mem. dec.)

Giavonda Chandler v. State of Indiana (mem. dec.)

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

William D. Funderburgh, III v. State of Indiana (mem. dec.)

Robert Neale v. State of Indiana (mem. dec.)

Christopher Clark v. State of Indiana (mem. dec.)

Darren A. Mallett v. State of Indiana (mem. dec.)

Joseph Honeycutt v. State of Indiana (mem. dec.)

Hezekiah Joel Colbert v. State of Indiana (mem. dec.)

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

Carl Strobel v. State of Indiana (mem. dec.)

Delmar P. Kuchaes v. Public Storage, Inc. (mem. dec.)

Posted by Marcia Oddi on December 21, 2016 12:11 PM
Posted to Ind. App.Ct. Decisions