*1 548 Agent Only", including his "UPL many of "For Use requires
tive and
a consideration
(iv)
"08984";
repre-
Agent
and
UPL
According
Judge
Rucker:
Code"
factors.
Haynes
at trial that
sentative Karen
testified
determining
In
whether one is a broker or
agent until
Kobielak was UPL's
the General
necessary
agent,
it is
to consider the
an
August,
in
Agent Agreement was terminated
case,
facts and circumstances of the
ample
1988. Because Benante did introduce
actions,
parties,
of the
their
their
relation
tending
that Kobiclak was
evidencе
to show
dealing, any
course of
instructions
usual
UPL,
agent
an
we do not believe that
given
person by
company, the
to the
ap-
judgment
case
on the evidence was
this
generally,
parties
conduct of the
and the
propriate. We believe the issue of whether
v.
nature of the transaction. Weinisch
agent
or not Kobielak acted as an
for UPL
(1991),
Sawyer
A.2d
123 N.J.
587
liable for
and therefore whether UPL was
620;
Freeport
American Ins.
v.
Cold
Co.
proper
Kobielak's actions was
for detеrmina-
Inc.,
Storage,
F.Supp.
1480
703
by
jury.
tion
(D.Utah 1987);
Couch,
§
supra
3
26:30.
ed that Kobielak insurance Appeals, affirm opinion of the Court of and Also, panies than Kobielak had other UPL. judgment court. of the trial applied product not UPL for Be- nante. This evidence tends to show that agent not indeed the of UPL
Kobielak was SHEPARD, C.J., DeBRULER, and could be held and that therefore UPL DICKSON, SELBY, JJ., concur. However, liable for Kobielak's actions. Be- to show that nante also introduced evidence agent, particular
Kobielak acted as UPL's parties
the fact that Kobielak and UPL were Agent Agreement" at the time "General accepted funds.
Kobielak Benante's While contract, title, despite
this its referred to contractor", "independent
Kobielak as an question agent of whether one acts as an Stephen CLARK, Leo Defendant- independent generally contractor is one Appellant, Consultants, Mortgage fact. Inc. v. Maha v. (1995),Ind., ney 655 N.E.2d 496. That parties may have characterized their re Indiana, Plaintiff-Appellee. STATE of lationship independent as that of contractor No. 79S05-9503-CR-00306. (quot significant dispositive. but not Id. R.R., ing Ward v. Atlantic Coast Line Supreme Court of Indiana. 789, 792, 4 80 S.Ct. L.Ed.2d U.S. (1960) curiam)). contract, (per In Dec. made undertak Kobielak UPL certain reasonably
ings to each other which could be agency relationship.
determined to create an (i) addition,
In there evidence that when Benante,
Kobielak first met he introduced () UPL; agent
himself as an Benante
gave monеy signing docu Kobielak after provided printed
ments Kobielak and (iii) stationery; signed
UPL Kobielak Be- annuity application in
nante's the two areas "Signature Agent" and he com
marked
pleted application the areas of the entitled *2 jail an indict- Knecht, held If defendant Knecht, & Vonderheide Steven early for an shall move an affidavit
P.C.,
Appellant.
ment or
Lafayette, for
brought
if not
trial,
discharged
he shall
General, Cynthia
Carter, Attorney
Pamela
(7O)
days
seventy
calendar
tо trial within
General,
Attorney
India-
Ploughe, Deputy
L.
*3
motion, except where
of such
from the date
Appellee.
napolis, for
had on
period is
within said
continuance
a
delay
otherwise
motion,
or
the
his
To Transfer
Petition
On
act,
was not
or whеre there
by his
caused
during
try him
such sev-
to
time
sufficient
DICKSON, Justice.
(70)
the
days
of
because
enty
calendar
time
4Rule
establishes
Criminal
Indiana
Provid-
calendar.
the court
congestion of
held but
must be
trials
which
deadlines
however,
ed,
in the last-mentioned
that
the
courts to exceed
trial
authorizes
attorney
also
cireumstance,
prosecuting
the
of
required to do so because
when
deadlines
continuance
timely motion for
a
shall file
the
Today we address
congestion.
(A)
court
this rule.
of
in subdivisiоn
as set forth
trial schedul-
priority
for
requirements
rule's
may
further,
trial court
that a
Provided
by a
taken
emergency
must be
ing,
steps which
an
congestion or
the
note of
take
rule and
of the
claiminga violation
defendant
motion,
necessity
aof
thе
without
claim,
a
denies such
court that
by the trial
may
a continuance.
finding
order
upon so
of such
appellate review
and the standard
congest-
due to a
granted
Any continuance
a denial.
be reduced
emergency shall
calendar or
ed
order,
the
shall also set
which order
to an
defendant,
interlocutory appeal, the
In this
time.
a reasonable
for trial within
case
Clark,
trial
that
the
contends
Stephen Leo
4(B)(1).
for Dis-
erroneously
his Motion
con-
denied
The defеndant
court
Ind.Crim.Rule
Appeals
conges-
affirmed the
no court
charge. The Court
in fact
that there was
tends
(1994), Ind.App.,
7, 1994,
the date on which
January
v. State
denial. Clark
tion on
75,
on which the
begin and
N.E.2d
76.
set to
his trial was
At the
"congestion."
entry declared
cоurt's
26, 1992,
defendant was
the
October
On
Discharge,
the
for
hearing on the Motion
theft,
felony. At
D
a class
charged with auto
testimony of the bailiff
the
defense
29, 1992, he
hearing on October
his initial
County.
Tippecance
juries for
charge
in
trial,"
speedy
orаlly requested a "fast and
in
jury trial was held
that no
testified
She
defense
50,
appointment of
and the
Record at
1998,
7,
January
Thursday,
on
that court
Indiana Crimi-
with
In accordance
counsel.
ap-
to
jurors
even summoned
no
were
that
jury trial
4(B)(1),
set
the trial cоurt
Rule
nal
of cases
The calendar
on that date.
pear
7,
later,
January
seventy days
on
begin
to
7, 1998,
January
included sev-
for
however,
arrived,
the
day
1993. When
jury
and two eviction
trials
criminal
enteen
"Due
providing,
an order
entered
trial court
dеfen-
denied the
hearings. The trial court
calendar,
or-
Court
congestion of Court's
Discharge, noting the
Motion for
dant's
pre-trial confer-
reassigned for
cause
ders
assigning several
practice of
routine
court's
5, 1998,
and for
at 8:80 A.M.
May
encе on
date, with
jury
on the same
for
trial
cases
A.M.
at 8:80
by jury to commence
firm trial
Friday as the "cut-off"
previous
noon
20,
at 12. On Febru-
May
1993." Record
on
"number
assigns the
the court
point at which
defendant,
had been
who
ary
"ready docket" and
case to bе on
one"
County Jail
Tippecanoe
at the
incarcerated
because
"continued
cases are
the other
letter with the
filed a
since October
If the case on
at 72.
congestion." Record
discharge pursuant
requesting
сourt
disposed of
ready
is continued
docket
4(B).
14-16.
Record at
Rule
Criminal
held,
afternoon,
because
no trial is
Friday
Thereafter,
the defen-
on March
as
[of]
be effective
congestion would
"the
attorney,
filed a formal
dant,
through his
setting."
Id.
Friday noon before
Discharge, asserting Indiana
Motion
4(B)(1),
per-
of his Motion
provides
from the denial
appeal
which
In his
Rule
contends
Discharge,
the defendant
part:
tinent
congestion
no court
January
existed on
an order continuing a scheduled trial it is
acknowledges
He
may
that a trial
unduly
burdensome for that court
past
seventy-day
add a sentence or two setting forth the
continued
limit on the
court's own
congested
motion due to a
court
nature of the
congestion
which dic-
argues
сalendar but
that he demonstrated
tates the continuance.
not,
fact,
that the calendar was
congested.
(Sullivan,
Id. at 440
dissenting).
J.
These
Emphasizing that
the continuance was not
differing perspectives are not irreconcilable.
granted
very day
until the
for which his trial Accordingly, our
today
resolution
seeks to
scheduled,
the defendant
argues
further
accommodate both concerns.
that according to the trial court's announced
right
The
of an
speedy
accused to a
рractice,
congestion
if court
actually
had
ex-
guaranteed
trial is
by the Sixth Amendment
*4
isted, the continuance would have been made
to the United States Constitution
by
and
date,
at an earlier
when the "number one"
I,
Article
Section 12 of the Indiana Constitu
"ready
case and
docket" were determined.
tion. This
principle
"fundamental
of consti
argues
The State
that
the record reveals
law,"
(1957),
tutional
Castle v. State
237 Ind.
congestion
calendar,
of the court
noting that
83, 85,
570, 572,
143 N.E.2d
long
has
been
sixteen
jury
other criminal
trials were sched
zealously guarded by this Court. See id. To
7,
January
19983;
uled for
that at least four
end,
this
provisions
of Indiana Criminal
teen of these were older than the defendant's
implement
Rule 4
speedy
defendant's
case;
testimony
and thаt no
right.
trial
(1987), Ind.,
v. State
Huffman
as to whether or not a
may
bench trial
have
906,
502 N.E.2d
907.
express
While the rule
7,
been
January
conducted on
or
ly requires that a defendant be discharged if
plea
whether a
brought
agreement
last-minute
to trial within
or con
preseribed
certain
tinuance had
"ready
occurred on the
docket."
limits,
time
the rule
subsequent
and
interpre
court,
1
In affirming the trial
the Court
recognized
tations have
that
congestion
court
Appeals
noted
conflicting precedent,
and
еxigent
other
may
cireumstances
justify
choosing to follow
(1994),
Bridwell v. State
a
delay beyond
reasonable
seventy-day
(court
period.
Ind.App.,
Loyd
(1980),
See
v. State
640 N.E.2d
439
272 Ind.
declara
404,408,
1260,1265,
congestion
tion of
denied,
398 N.E.2d
will
accepted
cert.
be
absеnt
449
U.S.
101
claim of subterfuge)
S.Ct.
declining
adequate congestion and the findings explaining appellate In the
justifying the continuance. case, expla the trial court's
review of such defer reasonable accorded
nations will be his establish
ence, must and a defendant showing that the trial to relief entitlement Defendant-Appellant, BRIDWELL, Ray clearly erroneous. court was v. case, the defendant present In the Plaintiff-Appellee. Indiana, of his Motion suppоrt STATE evidence that, day establishing Discharge No. 49S05-9503-CR-293. postpone the decision trial court made finding conges the order trial and enter Indiana. Supreme Court tion, conflicting jury trial was no Dec. In re jurors had been summoned. no prove the attempted to
sponse, the State emphasizing that congestion, existence cases, criminal in sixteen other
jury trials filed be originally had been of which
most were scheduled defendant's
fore the date; not estab did but State
the same them any trials were of these
lish whether setting under priority entitled
selves nor the Rule 4. Neither State or asserted
trial court established or other in fact conducted trial was
bench finding of supported the explained or
wise trial court's
congestion. We find clearly congestion was errone
declaration Discharge should and that the Motion
ous granted.
have been variety of cireum-
Notwithstanding may arise in trial in which this issue
stances develop
courts, courts that trial it is essential