Tuesday, December 20, 2005
Ind. Decisions - Two from Supreme Court, on credit agreements, and on termination of parental rights
In John Thomas Sees v. Bank One, Indiana, N.A. Justice Rucker writes:
The question presented is whether a statute that prohibits a debtor from “bring[ing] an action upon a credit agreement” unless it is in writing applies also to a debtor’s assertion of an affirmative defense. We conclude it does not.Justice Rucker's opinion is 11 pages of the total 16 pages. In a footnote, the opinion states:
In August 1995, Bank One loaned Sees Equipment $500,000. John Thomas Sees (“Sees”) and his brother Robert Sees, as officers of Sees Equipment, executed a note in favor of Bank One in that amount. Sees also executed an “Unlimited Continuing Guaranty” that assured full payment of all debts Sees Equipment owed. Sees Equipment was later sold, and the buyers assumed the Bank One debt. The buyers then defaulted. Bank One filed a complaint against all parties involved, including Sees as guarantor.
Thereafter, designating the guaranty agreement, Bank One filed a motion for summary judgment claiming no genuine issues of material fact existed as to Sees’ liability as guarantor. In opposition, Sees argued that he was fraudulently induced to sign the agreement. According to Sees, he signed the document only after receiving an oral assurance from a loan officer that the purpose of the guaranty was to provide leverage to guarantee Sees’ cooperation in the event of corporate default. * * * Having previously granted transfer we now affirm in part and reverse in part the judgment of the trial court.
Dickson and Sullivan, JJ., concur.
Shepard, C.J., concurs and dissents with separate opinion
Boehm, J., concurs in part and dissents in part with separate opinion, in which Shepard, C.J., concurs.
While this case was pending on transfer the parties settled their differences and filed a joint motion to withdraw this appeal and to dismiss it as moot. Although as between the parties this matter is now settled, we nonetheless believe the legal issues raised in this case are significant and warrant this Court’s attention. We therefore deny the parties’ motion. * * *In Robert Bester v. Lake Co. Office of Family and Children, a 15-page opinion, Justice Rucker writes:
The trial court terminated Robert Bester’s parental rights on the ground that the parent-child relationship posed a threat to the well being of the child. The Court of Appeals affirmed. Concluding that the evidence does not clearly and convincingly demonstrate that Bester’s parental rights should be terminated, we reverse the judgment of the trial court. * * *
Several of the trial court’s findings were either misleading or unsupported by the evidence. And those findings supported by the evidence did not support the trial court’s judgment. As a result, the trial court’s conclusion that there is reasonable probability that the continuation of the parent-child relationship poses a threat to Child’s well being has not been demonstrated by clear and convincing evidence and thus is clearly erroneous. We therefore reverse the judgment of the trial court.
Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., not participating.
Posted by Marcia Oddi on December 20, 2005 10:54 AM
Posted to Ind. Sup.Ct. Decisions