| CRIMINAL
LAW ISSUES HIGGINS v. STATE, No. 82A04-0203-CR-109,
___ N.E.2d ___ (Ind. Ct. App. Feb. 21, 2003).
BARNES, J.
. . . Over objection, the trial court informed the
jury in instruction four, “In order to establish that a
breaking has occurred, the state need only introduce evidence
from which the trier of fact could reasonably infer that the slightest
force was used to gain unauthorized entry; the opening of a locked
or unlocked door is sufficient.” [Citation to Brief omitted.]
. . .
. . . Higgins first argues that the trial court’s
instruction regarding the residential entry element of “breaking”
violates his due process rights under the Fourteenth Amendment
to the United States Constitution, as well as Article
I, § 19 of the Indiana Constitution. [Footnote omitted.]
Specifically, he contends the instruction creates an impermissible
mandatory presumption and relieves the State of its burden of
proof on the “breaking” element of residential entry
because the jury was told that the opening of a locked or unlocked
door “is sufficient” to establish that a “breaking”
occurred.
. . . .
We recently addressed a jury instruction similar
in some respects to the instruction Higgins challenges, and which
did not explicitly contain the word “presume,” in
Walker v. State, 769 N.E.2d 1162 (Ind. Ct. App. 2002),
clarified on reh’g, 779 N.E.2d 1158, trans. denied
(2003). In that case, we considered whether the following instruction
created a mandatory presumption in violation of the Due Process
Clause in a trial for murder and attempted murder:
It is a fundamental principle of law
that . . . each person is criminally responsible for the actions
of each other person which were a probable and natural consequence
of their common plan even though not intended as part of the
original plan.
[Citation omitted.] We held that this instruction
did create an impermissible mandatory presumption, in that the
jurors were instructed to presume the defendant, the accused non-shooter,
had the same intent as the actual shooter, the defendant’s
companion. [Citation omitted.] . . . [W]e found that the phrase
“fundamental principle” connotes such a high degree
of importance to whatever follows it that it created a presumption.
[Citation omitted.] . . .
Here, as in Walker, the challenged jury instruction
contained the word “is”: “the opening of a locked
or unlocked door is sufficient” to support the “breaking”
element of residential entry. [Citation to Brief omitted.] Unlike
Walker, however, there was no language to the effect that
this proposition was a “fundamental principle of law.”
. . . Walker is not directly on point, and we decline to
extend the reasoning of that case to hold that the mere inclusion
of the word “is” in an instruction creates a mandatory
presumption that violates the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. We conclude that
the instruction here, less strongly worded than in Walker,
creates merely a permissive inference, not a mandatory presumption.
. . .
. . . .
Even if we were to conclude that instruction four
in this case, standing alone, violated Article
I, § 19 of the Indiana Constitution and constituted a
mandatory instruction that bound the jury to return a verdict
of guilty upon the finding of certain facts, this would not be
enough to reverse Higgins’ conviction. One of the jury’s
other final instructions was instruction H, which informed the
jury that it was given the right under the Indiana Constitution
to decide both the law and the facts. As such, no reversible error
could result under the Indiana Constitution by the giving of final
instruction four where it was accompanied by final instruction
H. [Citation omitted.] Nevertheless, we are of the opinion that
instructions such as the one challenged here by Higgins, stating
that certain evidence “is” sufficient to establish
an element of a crime, should not be given in the future so as
to avoid any potential conflict with either the United States
or Indiana Constitutions. Instead, if the State desires an instruction
similar to instruction four in this case, words or phrases such
as “may,” “may infer,” “may consider,”
or “may look to” should be used in place of “is.”
[Citation omitted.] [Footnote omitted.]
. . . .
Next, Higgins contends that the trial court improperly
refused to instruct the jury on the elements of criminal trespass,
which he claims was a lesser included offense of residential entry.
. . .
. . . .
Whether criminal trespass was factually included
in residential entry in this particular case is a more difficult
question. An offense is factually included if the charging instrument
alleges that the means used to commit the crime charged include
all of the elements of the alleged lesser included offense. [Citation
omitted.] Higgins contends that criminal trespass was factually
included in residential entry in this case because the charging
information alleges that he “did knowingly break and enter”
Freson’s dwelling, which implies the elements of lack of
contractual interest in the property and lack of consent to the
entry as required for criminal trespass. [Citation to Brief omitted.]
A relatively recent case from our supreme court
supports this position. In J.M. v. State, 727 N.E.2d 703,
705 (Ind. 2000), our supreme court first noted the parties’
agreement that criminal trespass is not inherently included in
the offense of burglary. . . . [T]he court held “that by
charging that J.M. did knowingly or intentionally ‘break
and enter’ the residence of another person, the State sufficiently
alleged facts constituting criminal trespass . . . .” [Citation
omitted.] Thus, it appears Higgins is correct that an information
alleging that a defendant broke and entered a dwelling has been
held sufficient to make criminal trespass a factually included
lesser offense of burglary or residential entry, even though the
information does not allege the defendant lacked a contractual
interest in the property or the property owner did not consent
to the entry.
We must note, however, that J.M. appears
to conflict with several other cases from our supreme court that
have addressed this issue. For example, in Welch v. State,
509 N.E.2d 824, 824-5 (Ind. 1987), the court held the defendant
“could not, by way of instruction to the jury, inject the
lesser charge of criminal trespass,” because the information
charging the defendant with burglary did not allege that the defendant
entered property in which he had no contractual interest as required
for criminal trespass. . . . J.M. appears to us to be irreconcilable
with the earlier cases, and we must assume they were implicitly
overruled. Thus, we conclude that criminal trespass was a factually
included lesser offense of residential entry in this case because
the State alleged that Higgins did knowingly “break and
enter” Freson’s dwelling. [Footnote omitted.]
We now address the third element of the Wright
test, and conclude there was no serious evidentiary dispute regarding
the distinction between residential entry and criminal trespass
upon which Higgins focuses: whether he broke and entered Freson’s
dwelling or merely entered it. . . .
. . . .
BAKER, J., concurred.
VAIDIK, J., filed a separate written opinion in she
concurred in the result, in part, as follows:
I concur with the result of the majority but respectfully
disagree with its reasoning as to the breaking and entering jury
instruction. In my opinion, the breaking and entering jury instruction
created an impermissible mandatory presumption, but I find that
giving this instruction was harmless error.
. . . .
The majority attempts to distinguish this instruction
from the instruction we found impermissible in Walker by pointing
out that the Walker instruction contained the language
“it is a fundamental principle of law.” I am unconvinced
that the absence of that language from the instruction in this
case makes this instruction any less mandatory. . . .
. . . .
BRISCOE v. STATE, No. 49A02-0206-CR-498,
___ N.E.2d ___ (Ind. Ct. App. Feb. 25, 2003).
KIRSCH, J
Briscoe argues that the trial court erred in imposing
the $2000 fine as part of his sentence because the plea agreement
did not contain this term. He contends that once the trial court
accepted the plea agreement, it was bound by its terms and unable
to add obligations.
. . . .
Similarly, here, the plea agreement did not provide
for the imposition of fines. In fact, the pre-printed form contained
a box to check if the imposition of fines was to be left to the
discretion of the trial court, and that box was not marked. We
must therefore conclude that imposition of fines by the trial
court was not contemplated by the parties in reaching their agreement,
and the trial court erred in varying the terms of the sentence
as set out in the plea agreement. Accordingly, we reverse the
portion of the sentence imposing the $2000 fine. [Footnote omitted.]
In doing so, we note that the trial court advised
Briscoe orally prior to accepting his plea that it would have
discretion to impose fines and costs. Moreover, the advisement
of rights form signed by Briscoe also stated this. However, as
we have explained, the trial court did not have the authority
to alter the terms of the written plea agreement: it had the option
of accepting or rejecting the agreement only. Further, the advisement
of rights form was not part of the parties’ plea agreement.
. . . .
SHARPNACK and SULLIVAN, JJ., concurred.
MILLER v. STATE, No. 82A01-0203-CR-89,
___ N.E.2d ___ (Ind. Ct. App. Feb. 25, 2003).
NAJAM. J.
The State maintains that Lighty [v. State,
727 N.E.2d 1094 (Ind. Ct. App. 2000)] was decided incorrectly.
Specifically, the State asserts that: (1) the cases cited in Lighty
are distinguishable from the facts in that case; (2) Lighty
erroneously stated that plea agreements involving withheld judgments
are prohibited by Indiana Code Section 35-38-1-1(a); and (3) Lighty
incorrectly stated that plea agreements that conflict with a statute
are void.
. . . [R]egardless of the factual distinctions in
those cases, the relevant rule of law which permeates all four
of the decisions is that trial courts may not withhold judgments.
[Footnote omitted.] . . .
. . . Indiana
Code Section 35-38-1-1(a) does not authorize entry of withheld
judgments. Rather, that statute governs judgments of conviction
and unambiguously states, “After a . . . plea of guilty,
. . ., the court shall enter a judgment of conviction.”
I.C.
§ 35-38-1-1(a) (emphasis added). When the word “shall”
appears in a statute, we construe it as mandatory rather than
directory unless it is clear from the context or purpose of the
statute that the legislature intended a different meaning. [Citation
omitted.] . . .
. . . .
In fact, in 2002 our legislature enacted legislation
that authorizes a court having felony, misdemeanor, or juvenile
jurisdiction in a city or county to establish a drug court. See
Ind.
Code § 12-23-14.5-1 et seq. Once a drug court
has been properly established, Indiana
Code Section 12-23-14.5-15 provides:
. . . .
(b) Notwithstanding
IC 35-38-1-1(a), the court, without entering judgment of
conviction, may defer further proceedings and place the person
in the custody of the drug court under conditions as the court
determines.
. . . .
We must assume that the legislature is mindful of
both court decisions and existing law. [Citation omitted.] . .
. [W]e harmonize the judgment of conviction statute with those
statutes that allow for deferred judgments by construing the latter
statutes as exceptions to the general rule. Indiana
Code Section 35-38-1-1(a) does not authorize withheld judgments
but requires that, following a plea of guilty, the court shall
enter judgment of conviction. [Footnote omitted.]
Still, the State asserts that Indiana
Code Section 35-38-1-1(a) does not expressly prohibit parties
from agreeing to withhold judgment in a plea agreement. Again,
that statute requires that a court enter judgment of conviction
following a plea of guilty. Despite the State’s arguments
to the contrary, agreements that are conditioned on the court’s
ability to withhold judgment, rather than enter judgment, following
a guilty plea are in violation of the judgment of conviction statute.
[Citation omitted.] . . .
. . . .
In support of its assertion that not all contracts
made in violation of a statute are void, the State directs us
to Continental Basketball Ass’n, Inc. v. Ellenstein Enters.,
Inc., 669 N.E.2d 134 (Ind. 1996); Norlund v. Faust,
675 N.E.2d 1142, 1150 (Ind. Ct. App. 1997); and Noble v. Alis,
474 N.E.2d 109 (Ind. Ct. App. 1985), trans. denied. Those
cases recognize that our courts sometimes apply a balancing test
to determine whether a contract that contravenes a statute is
void. [Citation omitted.] But we do not find those cases persuasive
because they address private contracts, not plea agreements. .
. .
. . . [W]e hold that Miller’s plea agreement,
which was conditioned on the court’s ability to withhold
judgment, was void ab initio. . . .
. . . .
BAKER and RILEY, JJ., concurred.
GRAVES v. STATE, No. 49A02-0207-PC-522,
___ N.E.2d ___ (Ind. Ct. App. Feb. 26, 2003).
BARNES, J.
We turn our attention to the dispositive issue of
whether Lewis’ representation was ineffective with respect
to the reconstruction of the guilty plea record. During Graves’
post-conviction hearing, Lewis presented evidence that the tape
of the guilty plea hearing had been lost or destroyed. Specifically,
he presented affidavits of the judge and court reporter stating
that the tape could not be located. Lewis also presented Graves’
testimony that he was not fully advised of his rights before he
pled guilty. Lewis’ argument was essentially that because
the tape was unavailable and Graves stated he was not properly
advised, the guilty plea should be set aside.
. . . .
The supreme court in Zimmerman, 436 N.E.2d at 1087, held
that when a defendant seeks post-conviction relief alleging
his guilty plea was not voluntarily made, the loss of a record
or transcript of a guilty plea will require the vacation of
the plea and a new trial only when reconstruction of the record
through former Appellate Rule 7.2 is impossible. [Citation omitted.]
. . .
. . . .
The evidence Lewis presented at the hearing addressed
only the unavailability of the guilty plea hearing transcript
or tape. Lewis failed to establish that the rest of the court’s
record could not be located and made no attempt to reconstruct
the record. In other words, Lewis did not reconstruct the record
under the appellate rules and did not present sufficient evidence
to establish that the record could not be reconstructed. . .
. Lewis had an obligation to attempt a reconstruction of the
record or, if absolutely nothing remained from which he could
reconstruct it, he had an obligation to prove to the post-conviction
court that the record could not be reconstructed. This would
include, for example, affidavits from court personnel stating
that no court records were still in existence, that no notes
from court reporters or probation officers remained, and that
no court personnel had any independent recollection of the hearing.
It would also include affidavits from the attorneys of record
establishing that they did not have any files or notes relating
to the hearing and had no independent recollection. Lewis’
presentation fell short of this standard.
. . . If Lewis had been successful in reconstructing
the record, then the post-conviction court would have been able
to address Graves’ claims on the merits. If Lewis had been
successful in establishing that the record could not be reconstructed,
then Graves’ guilty plea would have been set aside because
the record would have been silent as to whether he was properly
advised of his rights before entering the plea. [Citation omitted.]
There was evidence presented at his successive post-conviction
relief hearing that such evidence may have existed and could have
been presented at the first post-conviction relief hearing. We
cannot say that Graves was represented in a procedurally fair
setting given that his conviction could have been set aside if
Lewis had established the record could not be reproduced. As such,
Graves received ineffective assistance of counsel. [Footnote omitted.]
In our opinions in Patton, 537 N.E.2d at
520 and Alston v. State, 521 N.E.2d 1331, 1335 (Ind. Ct.
App. 1988), trans. denied, we stated that if counsel is
inadequate at a post-conviction proceeding, the remedy was to
allow the defendant to start over. In this case, Graves was denied
effective assistance of post-conviction counsel, thus, the appropriate
remedy is to allow him to start over. . . .
. . . .
BAILEY and ROBB, JJ., concurred.
GLOTZBACH v. STATE, No. 10A05-0207-CR-321,
___ N.E.2d ___ (Ind. Ct. App. Feb. 28, 2003).
SHARPNACK, J.
Glotzbach first argues that the evidence is insufficient
to support his conviction for public indecency, as a class D felony,
because the State failed to establish that children less than
sixteen years of age were present. The legislature did not define
the term “present” as it appears in Ind.
Code § 35-45-4-1(b)(1). . . . [H]e contends that because
“[t]he supposed children were not in the immediate vicinity,
they were not even in the Adult Section of the Library where the
incident occurred,” the evidence is insufficient to prove
that he committed the act of public indecency in a public place
when a child under the age of sixteen was present. [Citation omitted.]
. . . [T]he term “present” is ambiguous. Because there
is an ambiguity, we turn to the rules of statutory construction
to aid in our determination of the legislative intent behind Ind.
Code § 35-45-4-1.
. . . .
. . . [F]or children to be present within the meaning
of
Ind. Code § 35-45-4-1(b)(1) they only must be in the
general area in the public place where the perpetrator is so that
there is a reasonable prospect that children under sixteen might
be exposed to the perpetrator’s conduct. . . .
. . . .
KIRSCH and SULLIVAN, JJ., concurred.
CIVIL LAW ISSUES
BD. OF COMM’RS OF VANDERBURGH COUNTY v. MUNDY,
No. 82A04-0209-CV-449, ___ N.E.2d ___ (Ind. Ct. App. Feb. 2, 2003).
MATHIAS, J.
John R. Mundy (“Mundy”) filed a motion
for refund in Vanderburgh Superior Court for the purchase price
from the purchase of a parcel of property at a tax sale. The trial
court granted the motion for refund and ordered that the purchase
price minus a penalty of twenty-five percent be returned to Mundy.
. . .
. . . .
The Board argues that Indiana
Code section 6-1.1-25-4.6(d) does not allow for tax sale purchasers
who get buyer’s remorse to obtain a refund of their purchase
price minus a penalty of twenty-five percent. . . . Under the
facts and circumstances before us, where the Board wishes to foster
the purchase and rehabilitation of distressed real estate but
then notifies the purchaser slightly more than two months after
purchase that he will also have the privilege of paying to raze
the property, we disagree.
Under tax sale procedure, when a property is purchased
at a tax sale, the purchaser is issued a tax certificate, which
gives the purchaser a lien on the property. The lien becomes a
tax deed if the purchaser fulfills the prerequisites contained
in Indiana
Code sections 6-1.1-25-4.5 and 6-1.1-25-4.6. Ind.
Code §§ 6-1.1-24-9, 6-1.1-25-4.5, and 6-1.1-25-4.6
(2000 & Supp. 2002). First, the purchaser is required to send
notice to the owner and to each entity having significant interest
in the property at the time of the sale, stating that the property
has been purchased at a tax sale and that the purchaser intends
to file a petition for a tax deed. Ind.
Code § 6-1.1-25-4.5. The notice must include the purchase
price, the redemption period, and a statement that any person
may redeem the property, among other things. Id. This notice
must be sent within nine months of the tax sale and before the
redemption period expires. Id. After the redemption period
expires, when the purchaser files a petition for a tax deed, a
second notice must be sent to the same parties. Ind.
Code § 6-1.1-25-4.6. This notice states that a petition
for a tax deed has been filed and that any objections to the petition
must be filed in writing within thirty days after the petition
was filed. Id. If the purchaser fulfills these requirements
and the property is not redeemed, the trial court shall enter
an order directing the county auditor to issue a tax deed to the
purchaser. Id.
In the present case, Mundy purchased the property
at a tax sale on March 8, 2002. In compliance with Indiana
Code section 6-1.1-25-4.5, he sent out the first notice to
the required parties and provided evidence of this notice to the
trial court on April 18, 2002. Mundy then received notice dated
May 21, 2002 from the City of Evansville Department of Code Enforcement,
stating that an order had been issued that the property remain
vacant and secure, and requiring the house on the property to
be razed and the lot cleared and leveled by July 10, 2002. The
redemption period for the property would not have expired until
July 8, 2002, and the tax deed could not have been issued until
at least thirty days after that date. On June 4, 2002, and without
filing a petition for a tax deed or sending the accompanying notice,
Mundy filed a motion for refund seeking a refund of his purchase
price less the twenty-five percent penalty.
. . .
The provision at issue states:
Except as provided in subsection (e) and (f),
if the court refuses to enter an order directing the county
auditor to execute and deliver the tax deed because of the failure
of the purchaser or the purchaser’s assignee to fulfill
the requirements of this section, the court shall order the
return of the purchase price minus a penalty of twenty-five
percent (25%) of the amount of the purchase price. Penalties
paid under this subsection shall be deposited in the county
general fund.
[Citation omitted.]
The Board contends that the plain meaning of the words, “failure”
and “refuses,” used in the statute provision dictate
that notice under Indiana
Code section 6-1.1-25-4.6 must be given before a refund can
be granted. . . .
The provision at issue states that the trial court
shall order the refund if the purchaser fails to meet the requirements
of Indiana
Code section 6-1.1-25-4.6. These requirements include filing
a petition for a tax deed and sending the notice to the required
parties. It is not unreasonable to say that someone fails to meet
these requirements when he chooses not to do them.
Other provisions of the statute lead us to the same
conclusion. Under subsection (e), where a purchaser “has
made a bona fide attempt to comply with the statutory requirements
. . . for the issuance of the tax deed but has failed to comply
with these requirements,” and the trial court refuses to
enter an order to execute the tax deed because of this failure,
the purchaser is entitled to a full refund plus interest. . .
. Subsection (e) deals with the situation where the purchaser
actually attempts to meet the requirements but fails for some
reason, and the trial court does not order the execution of the
tax deed for that reason. That is the situation that the Board
believes that subsection (d) speaks to; however, since subsection
(e) already applies to that situation, subsection (d) must be
meant to apply to situations where purchasers have failed to meet
the requirements without making a bona fide attempt to comply.
Under subsection (f), if the purchaser failed to
provide notice under Indiana
Code section 6-1.1-25-4.5 and the tax sale is otherwise valid,
the trial court shall not order a refund of the purchase price.
This subsection states that sending notice under
section 6-1.1-25-4.5 is a necessary requirement to receive
a refund. Mundy did send the required notice under section
6-1.1-25-4.5, and therefore, subsection (f) does not apply
to him.
Mundy complied with section
6-1.1-25-4.5, but did not make a bona fide attempt to comply
with the requirements of section
6-1.1-25-4.6, and therefore, subsection (d) applies to him.
We hold that Mundy did not have to send the notice required under
section
6-1.1-25-4.6 to constitute a “failure of the purchaser
. . . to fulfill the requirements of this section.” Ind.
Code § 6-1.1-25-4.6(d). Because Mundy failed to fulfill
the requirements of section
6-1.1-25-4.6, the trial court did not err when it granted
Mundy’s motion for refund of his purchase price minus a
penalty of twenty-five percent.
. . . .
BAKER and RILEY, JJ., concurred.
HAMMOCK v. RED GOLD, INC., No.
48A02-0201-CV-46, ___ N.E.2d ___ (Ind. Ct. App. Feb. 28, 2003).
SULLIVAN, J.
[G]erald Hammock was involved in an automobile accident
in Alexandria, Indiana. Hammock’s car struck an electric
utility pole owned by American Electric Power, which caused the
power at a Red Gold plant (“Plant”), located approximately
2 miles from Alexandria, [footnote omitted] to go out for nearly
five hours. [Footnote omitted.] As a result of the power outage,
Red Gold’s operations ceased, resulting in a loss of tomatoes
in various stages of processing, loss of ingredients added to
the tomatoes, loss of finished product, extra labor costs, additional
cleaning costs, and loss of profits. . . .
. . . .
. . . While it is true that there is no statutory
duty upon Red Gold to have a second power source in the event
of loss of electric service, it is difficult to justify the imposition
of the costs of a harm caused by the acceptance of a general risk
of power failure by a business upon an individual motorist who
was unfortunate enough to cause a widespread power failure. Should
there have been a power failure caused by a storm or a widespread
blackout, the business would have had to bear the costs. While
a motorist may be ultimately responsible for causing a power failure
through his negligent acts, that individual motorist is not in
the best position to prevent or minimize the economic harm which
results.
In this regard, public policy seems to militate
against imposing the costs of the negligent driver’s actions
upon the driver, and instead, might well pass those costs onto
the business which is better able to prevent the harm. This is
especially true when considering the far-reaching consequences
of holding a motorist liable for his negligent acts. Does the
public believe that a motorist should be held liable to every
homeowner and business if he interrupts electric service to several
thousand electric consumers? What if electric service was interrupted
to a hospital and several patients died as a result? Would society
demand that the motorist pay? The answer to these questions is
likely “no” because it seems unfair to place such
extreme and indeterminate costs upon the negligent driver.
However, looking at the entire picture of negligent
acts and the harms which could result from an automobile accident,
it seems that there are some situations in which public policy
would demand that the motorist bear the costs of his negligent
act. Such situation could include damages caused to a single residence
by the loss of electric service for several hours in the winter,
thereby causing the water pipes to freeze and burst after a motorist
struck a pole on an individual’s property. Also, it would
seem extremely unfair for a business to bear the costs of the
damage caused by a negligent driver’s act when no steps
could be taken to prevent the harm to the business. Such might
include when a business has two sources of electric power, one
a primary source and the other a backup source, which are both
damaged through the same negligent act of an individual. . . .
On one end of the spectrum, one may look at the
facts present before this court and immediately conclude that
the driver should not suffer the extreme consequences caused by
his negligent actions. . . . On the other end of the spectrum,
we are faced with situations in which most individuals will look
to a factual situation and immediately feel that the harmed individual
or business should receive compensation from a negligent motorist.
Once again, public policy is not best based upon the immediate
reaction to who has a duty or was the proximate cause of the harm,
but rather to what seems fair. . . .
. . . Because public policy does not provide us
with a clear answer of who should bear the costs of a motorist’s
actions, we do not believe it proper to always preclude a business,
upon public policy considerations regarding a motorist’s
duty, from recovering for harm it suffers as a result of a motorist’s
negligent act. That being said, in this case, public policy considerations
do seem to weigh most heavily against placing Hammock in a position
in which he owed a duty toward Red Gold.
. . . .
Relying upon the guidance of decisions from other
jurisdictions and balancing the three Webb [v. Jarvis,
575 N.E.2d 992 (Ind. 1991)] factors, we conclude that Hammock
did not owe a duty to Red Gold. While the accident in which Hammock
was involved did ultimately result in a loss of electric service
to Red Gold, this only establishes that Hammock was the cause-in-fact
of the harm suffered by Red Gold. In order for Hammock to be liable
for that harm, he first must owe a duty to Red Gold. In this case,
the consequences of the accident were not reasonably foreseeable
because the Plant was located some distance from the scene of
the accident, outside of the zone of danger. Also, the scarcity
of cases from across the United States which have dealt with the
issue of whether a motorist owes a duty to a business following
the disruption of electric service as a result of an accident
leads to the conclusion that the harm is not so common as to normally
be expected. Finally, in viewing public policy, a combination
of factors, including the size of the operation at the Plant,
Red Gold’s failure to have a second power source, and the
fact that Red Gold was in a better position to prevent the significant
amount of harm which resulted as a consequence of the accident,
lead us to conclude that public policy weighs against the existence
of a duty. Balancing these considerations together, we can only
conclude that Hammock did not owe a duty to Red Gold. . . .
. . . .
BARNES, J., concurred.
BAILEY, J., filed a separate written opinion in which
he dissented, in part, as follows:
I think Hammock had a legal duty to use due care
to avoid accidents and to keep his vehicle under reasonable control,
and I therefore respectfully dissent from the majority’s
conclusion that summary judgment was improperly denied.
As the majority notes, the main focus of the Court’s
analysis is the foreseeability of the harm to Red Gold as it relates
to the existence of a legal duty on the part of Hammock. . . .
. . . .
. . . As a business that could be expected to sustain
damage as a result of a reasonably foreseeable accident caused
by a negligent motorist, Red Gold had enough of a relationship
with a driver like Hammock to support the imposition of a duty.
Moreover, the imposition of such a duty is entirely consistent
with the sound policies of encouraging careful driving and compensating
those injured by negligent motorists.
. . . The majority’s foreseeability analysis
here, while addressed to the duty component, amounts to a persuasive
case that Red Gold’s damages were not the proximate result
of Hammock’s alleged negligence. Hammock did not, however,
seek summary judgment on this basis, and has not presented this
argument upon appeal. I therefore respectfully dissent from the
majority’s conclusion that Hammock was entitled to summary
judgment on the ground that he owed no duty to Red Gold.
BOSTIC v. HOUSE OF JAMES, INC.,
No. 29A02-0207-CV-529, ___ N.E.2d ___ (Ind. Ct. App. Feb. 28, 2003).
SHARPNACK, J.
. . . At common law, our supreme court held the
following with respect to venue of actions on judgments:
The owner of a judgment may enforce its collection
by the process of the court wherein it was rendered, or he may,
if he so elect, use his judgment as a cause of action, and bring
suit thereon in the same court, or any court of competent jurisdiction,
and prosecute such suit to final judgment.
Becknell v. Becknell, 110 Ind. 42, 47, 10
N.E. 414, 416 (1887). However, venue is now
governed by Ind.
Trial Rule 75. [Citation omitted.]
. . . .
Ind.
Trial Rule 75(A)(2) provides that preferred venue exists
in:
the county where . . . the chattels or some part
thereof are regularly located or kept, if the complaint includes
a claim for injuries thereto or relating to . . . such chattels,
including without limitation claims for recovery of possession
or for injuries, to establish use or control, to quiet title
or determine any interest, to avoid or set aside conveyances,
to foreclose liens, to partition and to assert any matters for
which in rem relief is or would be proper.
T.R.
75(A)(2). Thus, to establish whether Hamilton County is a
preferred venue, we must determine if: (1) the judgment is a chattel;
(2) the chattel “or some part thereof” is “regularly
located or kept” in Hamilton County, and (3) the complaint
“includes a claim for injuries thereto or relating to”
the chattel.
. . . .
. . . [W]e agree with the trial court that a judgment
is “in the nature of a chattel.”
. . . Here, the original judgment was issued in
Hamilton County Superior Court No. 3. Thus, record of the judgment
can be found in Hamilton County. Consequently, we conclude that
the chattel or some part thereof is located in Hamilton County.
[Citation omitted.]
. . . .
A clear nexus exists between the chattel, i.e.,
the judgment, and House of James’s action to renew the same
judgment against Bostic. A resolution of House of James’s
complaint necessarily requires that the trial court consider the
judgment. Moreover, the trial court cannot render any determination
regarding House of James’s complaint without considering
the judgment. Thus, under the broad interpretation of the “relating
to” language in Ind.
Trial Rule 75(A)(2), the complaint to renew the judgment “relates
to” the judgment. [Citation omitted.]
Each requirement of Ind. Trial
Rule 75(A)(2) is satisfied. Thus, preferred venue for House
of James’s complaint on the judgment exists in Hamilton
County. . . .
. . . .
KIRSCH, J., concurred.
SULLIVAN, J., filed a separate written opinion in
which he concurred in the result, in part, as follows:
I fully concur in the majority’s conclusion
that this judgment is a chattel, albeit an intangible. . . . I
do not subscribe to the clear implication of the majority opinion
that a judgment is always “regularly located or kept”
in the county where it was originally entered merely because it
was originally rendered there.
. . . .
. . . It is clear to me therefore, that the existence
and location of a person or entity having ownership or control
over the judgment so as to enforce it is more than a mere circumstance
or coincidence.
. . . .
[T]here is no issue in the case as presented to
us as to whether House of James, Inc. is or is not a corporation
domiciled in Hamilton County. Therefore, it would be wholly inappropriate
to conclude that preferred venue lies in Hamilton County only
because the judgment was originally entered there.
. . . .
ROBINSON v. GAZVODA, No. 55A01-0204-CV-128,
___ N.E.2d ___ (Ind. Ct. App. Mar. 4, 2003).
VAIDIK, J.
Jim Robinson, the tenant, argues that the trial
court erred in finding that Bruce Gazvoda, the landlord, complied
with the Indiana security deposit statute. . . .
. . . .
Robinson argues, and Gazvoda concedes, that Gazvoda
never sent Exhibit B, the itemized list of repair costs, to Robinson
and that Exhibit A, Gazvoda’s first letter, alone does not
satisfy the itemized list of repair costs requirement of the statute.
[Citation to Brief omitted.] [Footnote omitted.] Nevertheless,
Gazvoda asserts that the trial court’s judgment was still
proper because Robinson’s failure to supply him with a forwarding
address within forty-five days of the termination of the lease
eliminated the itemized list requirement. In support of this argument,
Gazvoda draws our attention to Lae v. Householder, 767
N.E.2d 1044 (Ind. Ct. App. 2002), trans. granted. Lae
held that a landlord’s duty to provide the written itemization
is tolled until a tenant supplies a forwarding address to the
landlord; and, if the tenant does not supply the forwarding address
within forty-five days after the termination of the lease, the
landlord cannot violate the terms of the security deposit statute
because the landlord’s own forty-five day notice period
never begins to run. [Citation omitted.] However, we note that
the Indiana Supreme Court granted transfer in that case, and therefore
the opinion to which Gazvoda cited has been vacated. [Citation
omitted.] Thus, the precedent Gazvoda relies upon no longer exists.
Nevertheless, while for precedent purposes Lae
is useless to us, we will still consider the analysis contained
in the former Lae decision to help us in this case. Initially,
we note that in arriving at its conclusion, the Lae Court
relied upon Raider v. Pea, 613 N.E.2d 870 (Ind. Ct. App.
1993). Lae, 767 N.E.2d at 1048. According to Raider,
under Indiana Code §§ 32-7-5-12(a) and 32-7-5-14, a
tenant is required to provide a landlord with his change of address
before the duty of the landlord to provide an itemized list of
repair costs within forty-five days arises. See Raider,
613 N.E.2d at 872-73, 872 n.1. The Raider Court noted that
it could find no explanation for why the legislature wrote Indiana
Code § 32-7-5-12(a) with language requiring tenants to notify
landlords of their new address while nearly identical Indiana
Code § 32-7-5-14 has no such requirement. Id. However,
the Raider Court did not require a tenant to provide his
address within forty-five days of termination of the rental agreement
or else waive his right to the security deposit, as required by
Lae. Instead, Raider held that Indiana Code §
32-7-5-12(a) “imposes an affirmative obligation upon the
tenant to provide a mailing address to the landlord to facilitate
giving the required forty-five day notice, and it tolls the
running of the forty-five day period against the landlord until
the tenant meets his obligation.” Id. at 872
(emphasis added).
Faced with differing interpretations of the statute
by panels of this Court, we find that we must turn to the language
of the statute and the intent behind its passage for guidance.
. . . We accept that the statutory provision at issue in this
case, Indiana Code § 32-7-5-12(a), may be subject to more
than one interpretation. That section requires a landlord to send
“a written notice delivered to the tenant together with
the amount due within forty-five (45) days after termination
of the rental agreement and delivery of possession.”
Ind. Code § 32-7-5-12(a) (emphasis added). However, the next
sentence qualifies this statement by stating, “The landlord
is not liable under this chapter until supplied by the tenant
in writing with a mailing address to which to deliver the notice
and amount prescribed by this subsection.” [Citation omitted.]
Yet, no time frame is expressly given during which a tenant must
provide the landlord with notice of a new address. Hence, it could
be argued, as done in Lae, that the two sentences should be read
to require that both the landlord’s notice of damages to
the tenant as well as the tenant’s notice of new address
to the landlord must be delivered within forty-five days after
termination of the tenancy. Alternatively, it may be argued, as
construed in Raider, that the landlord’s obligation
to deliver notice of damages within forty-five days after termination
would be tolled until receiving notice of the tenant’s new
address, even if the tenant provides notice beyond the initial
forty-five days after vacating the premises. . . .
. . . .
. . . We read the forty-five day requirement, as
first articulated in Raider, to apply only to how long
a landlord has to respond after receiving notice of a tenant’s
new address. Failure by the tenant to provide his new address
within the initial forty-five days after vacating the premises
tolls the reciprocal obligation of the landlord to provide the
tenant with an itemized list of repair costs for a reasonable
period of time until the landlord receives notice of the tenant’s
new address.
There are a number of reasons for adopting the Raider
rationale. First, there is no doubt that in other contexts the
legislature is well aware how to provide time limitations upon
claims or else have them forfeited. [Citation omitted.] . . .
Second, after reviewing the language of the entire
security deposit statute, we find that the overarching purpose
of the statute is for the protection and benefit of tenants. .
. .
Finally, we consider the effects and consequences
of our interpretation of the statute. If we construe the forty-five
day time limitation only to apply to landlords, more tenants will
have their day in court to seek recovery of their security deposits.
. . . Because the overall purpose of the statute is better served
by the Raider rationale, we choose to follow that interpretation.
. . . .
BAKER and BARNES
|
