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Wednesday, November 30, 2005

Ind. Decisions - Court of Appeals posts eight decisions today

Court of Appeals posts eight decisions today, here are some descriptions and highlights:

Carey D. Helmuth v. Distance Learning Systems involves a dispute over unpaid commissions and costs sought by a resigned employee. Affirmed in part, reversed in part, and remanded with instructions.

In Cynthia Cox, Administrator of the Estate of William Eric Cox v. Stoughton Trailers, Inc. the issue was "whether the trial court properly concluded that Stoughton owed no duty to William to maintain the safety of a trailer that it had manufactured and that caused William’s death." Judge Barnes concludes: "The trial court correctly entered summary judgment in Stoughton’s favor because there is no designated evidence that would support finding that Stoughton owed a duty to William to maintain the trailer."

In a 27-page opinion by Judge May, Simon Property Group, L.P. v. Michigan Sporting Goods Distributors, Inc., with Chief Judge Kirsch concurring in part and dissenting in part, Judge May writes:

Simon Property Group, L.P., (“Simon”) brings this interlocutory appeal of the trial court’s grant of the motion to correct error filed by Michigan Sporting Goods Distributors, Inc., (“MC Sports”) after the court granted Simon’s motion for summary judgment. Simon raises one issue, which we restate as whether the trial court abused its discretion when it granted MC Sports’ motion to correct error because MC Sports had waived its arguments by failing to raise them prior to the court’s grant of summary judgment. MC Sports cross-appeals, arguing the trial court erroneously granted summary judgment to Simon regarding the availability of additional remedies under the relevant section of the contract. * * *

Because Simon’s brief in opposition to MC Sports’ motion for summary judgment was insufficient to place the issue of breach before the trial court, the trial court did not abuse its discretion when it granted MC Sports’ motion to correct error. Nor did it err when it granted summary judgment to Simon, because reduced rent is the only remedy available for a breach of Section 24.23. Therefore, we affirm and remand for further proceedings consistent with this opinion.

CJ Kirsch: I fully concur with the majority’s holding that the trial court did not err in granting Michigan Sporting Goods’ Motion to Correct Error, but I respectfully dissent from its holding that the remedy set out in Section 24.23 of the lease is the exclusive remedy for breach of that section.

Terry L. Hall v. Jerry J. Terry involves a dispute about a tax sale of real property.

Travelers Casualty, et al. v. Siemens Building Technologies, Inc. involves a prime-sub contractor dispute.

Sean T. Lachenman v. Mitchell & Josephine Stice is a 30-page opinion by Judge Sullivan that begins:
Appellant-Plaintiff, Sean T. Lachenman, as the personal representative of the estate of Chere Lachenman (“Lachenman”), challenges the trial court’s grant of partial summary judgment in favor of Appellee-Defendants, Mitchell Stice and Josephine Stice (collectively “the Stices”), and also challenges the trial court’s rulings on the Stices’ motion in limine. Upon appeal, Lachenman claims that summary judgment was improperly granted because there are genuine issues of material fact as to whether Lachenman may recover on her claims of intentional and negligent infliction of emotional distress and that the trial court erred in ruling to exclude evidence regarding the vicious propensity of the Stices’ dogs and the value of Lachenman’s pet dog. We affirm.
In State of Indiana v. Raphael M. Helton, a 4-page opinion, Judge May concludes:
We must decline Raphael’s invitation to adopt reasoning that might allow the dismissal of most cases in which the victim recants his or her testimony. The police officers who would have been called to testify to Barbara’s prior statements and condition at the time she made her initial statement might not have been called to impeach her; it is more likely they would have been called to report what they personally observed. The probable cause affidavit indicates Barbara was “crying,” “fearful” and “afraid” when the police responded to her call. Their testimony would probably have been allowed under the excited utterance exception to the hearsay rule.

A victim’s decision to recant her prior statements or to not testify at all does not necessarily prevent a trial. See, e.g., Fowler v. State, 829 N.E.2d 459, 462 (Ind. 2005) (victim declined to testify after taking the stand, but the defendant was convicted and the conviction was affirmed), reh’g denied.

Raphael’s motion to dismiss should not have been granted. We must accordingly reverse and remand for trial.

Donald W. Snover v. State of Indiana deals with a question of the exclusion of evidence.

Posted by Marcia Oddi on November 30, 2005 10:57 AM
Posted to Ind. App.Ct. Decisions