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Friday, November 17, 2006

Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

For publication opinions today (3):

In In the Paternity of J.A.P., a 17-page opinion, Judge Riley writes:

Appellant-Petitioner, J.A.P., by next friend, Sheila Puckett (Puckett), appeals the trial court’s Order Determining Paternity and directing Appellee-Respondent, Daniel Jones (Jones), to pay child support to J.A.P. We reverse and remand with instructions. * * *

Based on the foregoing, we conclude: (1) the trial court’s finding that Puckett intentionally withheld information from the IV-D office is clearly erroneous; (2) the trial court’s entry of a Nunc Pro Tunc Order dismissing the Petition is improper; and (3) the trial court erred in its conclusion that the Petition was reinstated in 2004, and consequently erred in failing to order retroactive child support for J.A.P. to August 16, 1993, the date the Petition was filed. Reversed and remanded, with instructions to recalculate the amount of retroactive child support owed to J.A.P.

State Farm Mutual Automobile Insurance Co. v. Patricia Jakupko, et al - See this 12/20/06 ILB entry.

In James Johnson and Berma Johnson v. James L. Dawson, Earl E. Nelson, Jane Graham, and Brenda Kauffman, an 18-page opinion dealing with restrictive covenants (with a dissent beginning on p. 13], Judge Najam writes:

James and Berma Johnson (“the Johnsons” or “Defendants”) appeal from the trial court’s issuance of an injunction following a bench trial. The injunction prohibited the Johnsons from building a detached two-car garage on their property in the Meadowbrook Subdivision No. 1 (“Meadowbrook”). The trial court also awarded attorney’s fees to James L. Dawson, Earl E. Nelson, Jane Graham, and Brenda Kauffman (collectively, “Dawson” or “Plaintiffs”). T

he Johnsons raise three issues for our review: 1. Whether the trial court erred in its interpretation of a restrictive covenant. 2. Whether Dawson’s acquiescence in prior restrictive covenant violations by other Meadowbrook landowners bars an action against the Johnsons. 3. Whether the trial court properly awarded attorney’s fees. We affirm. * * *

Based on the foregoing, we hold that: (1) the Restrictive Covenant limits the cumulative total garage space to three cars; (2) the nonwaiver clause is valid and enforceable; (3) the Johnsons are barred by the nonwaiver clause from asserting the defense of acquiescence; and (4) the award of attorney’s fees to Dawson was not improper. Affirmed.

SHARPNACK, J., concurs.
ROBB, J., dissents with separate opinion. [which begins]

I respectfully dissent from the majority opinion with regard to the restrictive covenant because a less restrictive interpretation should be applied in light of ambiguity within the covenant. Indiana law disfavors restrictive covenants, and any doubt must be resolved in favor of the free use of property and against restrictions. Grandview Lot Owners Ass’n, Inc. v. Harmon, 754 N.E.2d 554, 557 (Ind. Ct. App. 2001), trans. denied. The intent of the parties to a restrictive covenant, which is a form of express contract, must be derived from the specific language used, as well as the circumstances of the parties, at the time the covenant was created. Mayer v. BMR Properties, LLC, 830 N.E.2d 971, 979 (Ind. Ct. App. 2005). The restrictive covenant must be considered in its entirety, rather than reading specific words and phrases to the exclusion of other provisions. * * *

The end result is that the ambiguity in the restrictive covenant requires an interpretation against the drafters, and favoring the Johnsons’s free use of their property. A narrow construction of the restriction applied to the present circumstances permits the Johnsons to build a separate garage structure limited to space for three cars or less. Although the trial court was correct that the covenant restricts the number of cars for which a garage structure may be built, it incorrectly applied that limitation to the entirety of the residential lot, including the landowner’s dwelling, rather than only to the proposed garage structure. This wrongly imposes the greater restriction where ambiguity in the restrictive covenant dictates lesser restriction. Given the presumption against the drafters, as well as the fact that prior conduct seemingly permitted the Johnsons’s actions, the less restrictive interpretation should govern the present outcome.

NFP civil opinions today (6):

Termination of Parent-Child Rel. of D.D.B., B.T.C., D.M.T., and S.T., and Melissa Sue Turpin v. Tippecanoe Co. Dept. of Child Services (NFP)

Victoria Barnes v. Madison County Department of Child Services (NFP)

Louis Polus, et al. v. Mary Scheurich, et al. (NFP)

Larry D. Cook and Bachly Cook v. Joyce B. Collins (NFP)

Richard Lindsey v. City of Clinton, Indiana (NFP) - From a report 11/21/06 in the Terre Haute Trib-Star:

Clinton — The Indiana Court of Appeals has reversed a ruling from Vermillion Circuit Court and ordered the reinstatement of Richard A. Lindsey back to his position as a corporal on the Clinton City Police Department.

The court ordered that Lindsey be reimbursed for back pay and benefits. The total could amount to about $40,000, based on Lindsey’s approximate pay.

Lindsey was fired shortly after an April 21, 2005, hearing by the Clinton Board of Public Works & Safety. The board found that he violated the department’s operating procedures by leaving the city limits while on patrol.

In the incident, Lindsey responded to a dispatch about a reckless driver on Indiana 63, who turned out to be drunk, and arrested him. The board also included Lindsey’s past disciplinary record with the department as reason for the termination. The county’s Circuit Court affirmed the board’s ruling.

In overturning, the appellate court ruled Friday that Lindsey did not violate the operating procedures, concluding that he “used common sense … in responding to the dispatch.”

Van's TV & Appliance Inc., Van S. Dick and Douglas A. Dick v. Wiggs Realty Co. of Indiana, Inc. (NFP)

NFP criminal opinions today (8) (link to cases):

State of Indiana v. Lee Ann Ortiz a.k.a. Savannah Ortiz (NFP)

Domonico Hogue v. State of Indiana (NFP)

David L. Stickel v. State of Indiana (NFP)

Victor Brewer v. State of Indiana (NFP)

Duane A. Pollard v. State of Indiana (NFP)

Tony V. Lott v. State of Indiana (NFP)

Alonzo C. Kirkwood v. State of Indiana (NFP)

Alonzo C. Kirkwood v. State of Indiana (NFP)

Posted by Marcia Oddi on November 17, 2006 10:40 AM
Posted to Ind. App.Ct. Decisions