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Wednesday, February 15, 2017

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (4):

In Mint Management, LLC, and J&MW Holdings, LLC v. City of Richmond, Indiana , a 12-page opinion, Judge Pyle writes:

Owners filed a claim for a declaratory judgment on the issue of whether they were required to pay the City’s fee (“Stormwater Fee”) for financing its stormwater system. The City filed a motion for summary judgment, and the trial court granted the motion. It reasoned that all owners of real estate parcels in Richmond were required to pay the Stormwater Fee pursuant to the language of the City’s stormwater ordinance.

On appeal, the Property Owners argue that we should interpret the City’s stormwater ordinance as exempting their properties from the Stormwater Fee because the stormwater runoff from their properties does not enter the City’s stormwater system. Because we conclude that the language of the ordinance as a whole requires all property owners in Richmond to pay the Stormwater Fee, we conclude that the trial court did not err in granting summary judgment in favor of the City.

In Jason Bokori v. Jasmina Martinoski , an 18-page, 2-1 opinion, Judge Bailey writes:
Jason Bokori (“Bokori”) collided with Jasmina Martinoski’s (“Martinoski”) leased car, totaling it. Insurance payments covered Martinoski’s medical expenses and a portion of the cost of her totaled vehicle, but a balance remained on the lease. Martinoski sued Bokori for the balance in small claims court, and the court entered judgment in her favor. Bokori now appeals. We affirm.

Issue. Bokori presents one issue for our review, whether the small claims court committed clear error in determining fair market value and awarding damages. * * *

The dissent’s argument that Martinoski cannot recover for damages related to a leasehold—something apparently akin to arguing that Martinoski lacks a claim for which relief can be granted under Trial Rule 12(B)(6)—is not an argument Bokori made at trial. And, because it is outside our role to advocate for a party, issues not raised by a party are waived. Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans. denied, cert. denied. Here, Bokori has essentially conceded that Martinoski was entitled to pursue this claim. See Ind. Trial Rule 15(B) (providing that issues not raised in the pleadings but tried by express or implicit consent of the parties “shall be treated in all respects as if they had been raised in the pleadings”).

Thus, Bokori’s appeal focuses solely on the question of the trial court’s determination of fair market value. That Martinoski was not the owner of the vehicle does not ipso facto preclude the trial court from hearing or crediting her testimony as to the value of the vehicle, just as surely as Martinoski not owning the vehicle did not preclude her from obtaining insurance. Simply put, she had a contractual interest in the vehicle’s use, and thus a financial stake in any resulting payout for damage to the vehicle. We are not at liberty to aid Bokori, a party represented by counsel in a small claims case, by creating arguments for him, and we are thus not at liberty to take the dissent’s path.

Nor are we at liberty to presume knowledge of the contents of any of a number of documents that might, had Bokori introduced them into evidence, have precluded a recovery. The record includes testimony concerning the existence of a lease and its term. But the lease document itself was not introduced into evidence, and thus we cannot properly rely on what it might say as introducing a bar to Martinoski’s recovery. There is also no evidence about the extent to which some or all of Martinoski’s claims were subrogated either to Toyota Financial or her insurer. * * *

Had Bokori presented other arguments or introduced other evidence, our result might have been different. But we are not bound to do a litigant’s work, and we are not at liberty to reargue the case or reweigh evidence. We therefore affirm the trial court’s judgment. Affirmed.

Brown, J., concurs.

Barteau, Sr. J., dissents with separate opinion. [that begins, at p. 12] The majority concludes that appellate review and disposition of this case hinges on the sufficiency of the evidence of fair market value, and would dispose of this case as an impermissible request by Jason Bokori to reweigh that evidence. I believe that the trial court did not appropriately apply the law, committing clear error, and, therefore, I must respectfully dissent. * * *

Martinoski had a remaining contractual liability on the leased vehicle that was totally destroyed as a consequence of Bokori’s tortious actions. Although the result of the financial choices made seems to lead to a harsh result, Martinoski has no legal remedy against Bokori for her contractual liability under the lease agreement. For these reasons, I must respectfully dissent from the majority opinion affirming the trial court’s decision.

In Harry Hobbs v. State of Indiana, a 7-page opinion, Sr. Judge Barteau writes:
[I]n this case the trial court corrected a limited sentencing error on remand in relation to a motion to correct erroneous sentence. The holdings in Lane and Niece do not compel a conclusion that the trial court or this Court is obligated to consider all of Hobbs’s sentencing claims regardless of whether they are appropriate for a motion to correct erroneous sentence. * * * Affirmed.
In Justin R. Messersmith v. State of Indiana, an 8-page opinion, Judge Bailey writes:
Following a jury trial, Justin R. Messersmith (“Messersmith”) was convicted of one count of Neglect of a Dependent Resulting in Bodily Injury, as a Level 5 felony, and one count of Battery on a Person Less Than 14 Years Old, as a Level 6 felony. Messersmith now appeals, contending that the trial court abused its discretion when, after accepting a plea agreement and entering judgment of conviction against Messersmith pursuant to the agreement, the trial court later granted the State’s request to withdraw the plea agreement. We reverse and remand with instructions. * * *

The circumstances here, however, did offend Messersmith’s constitutional rights. This is because entry of judgment following a guilty plea implicates a defendant’s rights, Coker, 499 N.E.2d at 1138, and due process requires that the government uphold its side of the bargain. Santobello, U.S. 257 at 262. Thus, Messersmith’s due process rights were violated when the trial court allowed the State to avoid the agreement over Messersmith’s objection. Although Indiana law establishes important victim rights, those rights must give way to a defendant’s federal due process rights. U.S. Const. art. VI, cl. 2; Ind. Const. art. 1, § 13(b). We therefore conclude that the trial court abused its discretion when it granted the State’s request to withdraw the plea agreement.

NFP civil decisions today (3):

Courtney L. Donald a/k/a Courtney Cain v. Z.D.C. b/n/f Shana L. Rhodes, et al. (mem. dec.)

In the Termination of the Parent-Child Relationship of: A.B., V.B., C.R., & E.R. (Minor Children), and K.R. (Father) v. The Indiana Department of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of: N.D. (Minor Child) and J.D. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (8):

Thomas Maxfield v. State of Indiana (mem. dec.)

Rafael A. Faulkner v. State of Indiana (mem. dec.)

Grady Jamal Moss v. State of Indiana (mem. dec.)

Allison Moore v. State of Indiana (mem. dec.)

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

Marc Benton v. State of Indiana (mem. dec.)

Tyree Brodley v. State of Indiana (mem. dec.)

Donald E. Morris v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 15, 2017 11:29 AM
Posted to Ind. App.Ct. Decisions