Wednesday, June 20, 2007
Ind. Decisions - Supreme Court decides three today
In James Rose and Robert Underwood v. Mercantile National Bank of Hammond, et al., a 7-page, 5-0 opinion, Chief Justice Shepard writes:
Judgment creditor pursued the two shareholders of the judgment debtor through a proceeding supplemental contending fraudulent transfer, then amended the complaint to bring a new tort claim, as well. The trial court allowed the amendment and granted summary judgment to the creditor, awarding attorneys’ fees and treble damages far in excess of the original judgment. Proceedings supplemental are only for collecting existing judgments, not for seeking new ones, so we reverse the trial court’s grant of leave to amend the complaint. * * *In Anthony Stockelman v. State of Indiana, a 5-page, 5-0 opinion, Chief Justice Shepard writes:
The trial court improvidently granted Mercantile leave to amend the proceedings supplemental complaint to add a claim for new damages. We think it prudent policy that any action to assist in collection of an original judgment, i.e. a proceeding supplemental, must be filed under the same cause number as the original action. Conversely, any action that may result in imposition of a new judgment should be filed under a new cause number.
Appellant Anthony R. Stockelman pled guilty to charges of murder and child molesting that arose out of the death of ten-year-old Katlyn Maria Collman. Stockelman challenges the propriety of the sentence of life without parole imposed by the trial court for the murder. We affirm. [The Court reviews the proffered mitigators and accords them minimal weight at best.] * * *In Marvin Hochstetler v. Elkhart Co. Highway Dept., et al , a 4-page, 4-1 opinion, Chief Justice Shepard writes:
All in all, given the aggravating circumstance of killing a ten-year-old girl, we find ourselves unable to say that the trial court was wrong to weigh that aggravator more heavily than the proffered mitigators or that the sentence imposed was inappropriate. We therefore affirm.
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., concurs in result with separate opinion. [which concludes:] While I agree with the majority's decision to affirm, I quibble with its concluding finding that the sentence was appropriate, which suggests that the defendant sought and the court exercised the appellate review and revise authority pursuant to Appellate Rule 7(B).
Riding his motorcycle sometime before 5 a.m. on the night of a substantial storm in Elkhart County, appellant Marvin Hochstetler struck a tree that had fallen down across a county road. The trial court granted judgment for various county entities on his negligence suit, concluding that the county was immune for losses resulting from temporary conditions of a public thoroughfare that result from weather. We affirm. * * *In keeping with the ILB entry June 18th titled "The slow wheels of justice in Ohio" and quoting from a Cleveland Plain Dealer story on how long it takes the Ohio Supreme Court to issue a ruling after oral arguments, the ILB will try to note the date that the oral argument were held in these posts about the rulings. In Ohio, according to the story:
The provision at issue in this litigation creates immunity for losses resulting from “[t]he temporary condition of a public thoroughfare . . . that results from weather.” Ind. Code Ann. § 34-13-3-3(3). We last explored the application of this section in Catt v. Bd. of Comm’rs of Knox County, 779 N.E.2d 1 (Ind. 2002). In that case, a driver was injured when he struck a water-filled ditch in the middle of the road during the early morning hours. A torrential rain overnight had washed out a culvert. The trial court granted summary judgment for the county, but a divided Court of Appeals reversed.
We observed in Catt that immunity under this section contains two key concepts, one temporal and one causal. As for the latter, conditions caused “due to weather” distinguish themselves from those in which the road condition was the result of, say, poor inspection, design, or maintenance. The act does not bar suits based on this sort of claim.
As for whether the condition was “temporary,” we noted that the county had no notice of the wash-out until the driver’s accident, that the county highway department was busy on the morning after the storm repairing other washed-out culverts of which it was aware, and had repaired this particular culvert when it had been washed out on previous occasions. We said these facts sufficed to carry the county’s burden to show it was entitled to immunity.
As we noted in Mangold and Catt, 779 N.E.2d at 3, immunity under the act is a matter of law for the court. In the present case, the storm had produced scores of trees and limbs down on the roads, county highway crews were on the job, and they were still at work hours after the storm had passed in the middle of the night. There might well be a case in which weather-related conditions remained untended for so long a period that it no longer qualified as “temporary.” This is not that case. The trial court was right that these facts sufficed to demonstrate that the county was immune. We affirm the judgment of the trial court.
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissenting, believing that granting summary judgment to find immunity is improper because of genuine issues of fact as to whether the hazard was temporary and whether its efficient cause was weather or the government’s failure to monitor and maintain its roads with reasonable care.
A Plain Dealer analysis of court opinions from orally argued cases from 2004 to 2006 shows that the amount of time it took to turn out majority decisions increased from an average of five months per case in 2004 to seven months last year.Here, the oral arguments in James Rose and Robert Underwood v. Mercantile National Bank of Hammond, et al. were heard 11/8/06; in Marvin Hochstetler v. Elkhart Co. Highway Dept., et al , 5/10/07. There were no oral arguments in the Stockelman case.
Posted by Marcia Oddi on June 20, 2007 12:34 PM
Posted to Ind. Sup.Ct. Decisions