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Friday, August 31, 2007
Ind. Decisions - Court of Appeals issues 7 today (and 19 NFP)
For publication opinions today (7):
In Mari O. Hunter v. Anne Klimowicz, a 5-page, 2-1 an opinion on rehearing, Chief Judge Baker writes:
We grant the petition for rehearing filed by appellant-defendant Mari O. Hunter, individually and as trustee of the Anne Klimowicz Irrevocable Trust (the Trust), for the limited purpose of correcting the test applied to evaluate the capacity of appellee-defendant Anne Klimowicz to execute the Trust. In our opinion, we evaluated Anne’s capacity pursuant to Indiana Code section 30-4-2-10(c), which provides that to create an irrevocable trust, the settlor must “be of sound mind and have a reasonable understanding of the nature and effect of the act and the terms of the trust.” As Hunter points out in her petition, however, this section of the statute did not exist until the statute was amended in January 2006. Inasmuch as the Trust was executed in 2000, the statute is not the correct tool to use to evaluate Anne’s capacity. * * *In Asbestos Corporation Limited v. Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield, an 8-page opinion, Judge Najam writes:Given this evidence, we are persuaded that the trial court properly concluded that Anne met her burden of establishing that she lacked sufficient capacity to execute the Trust. In all other respects, we deny Hunter’s petition for rehearing.
DARDEN, J., concurs. ROBB, J., dissents with opinion:
For the reasons set forth in my original concurring in result opinion, I dissent from the majority’s conclusion on rehearing that under the pre-2006 test, Anne met her burden of establishing that she lacked sufficient capacity to execute the Trust. As I previously noted, I do not believe Anne rebutted the presumption that she was of sound mind when she created the Trust, as the testimony shows that Anne did know the extent and nature of her property, the natural objects of her bounty, and their desserts. Therefore, I would reverse the decision of the trial court.
Asbestos Corporation Limited (“ACL”) brings this interlocutory appeal from the trial court’s denial of its motions for summary judgment on the claims of Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield. We address a single dispositive issue on review, namely, whether Akaiwa presented sufficient evidence of exposure to ACL asbestos to survive summary judgment. * * *International Union of Police Associations, Local No. 133 v. George Ralston, et al - "Unlike Ind. Code §§ 19-1-29.5-1.5, 19-1-29-10, and 19-1-31.5-4, the statute applicable to Terre Haute, Ind. Code § 19-1-29.5-13, does not specifically limit the mayor’s power to appoint a chief of police. Rather, Ind. Code § 19-1-29.5-13 focuses on the protection of members of the police department that are appointed to the position of chief of police and this protection does not compel the conclusion that only members of the police department can be appointed as the chief of police. Accordingly, even assuming, without deciding, that the Police Merit Commission could not amend the merit plan, we cannot say that Ind. Code § 19-1-29.5-13 prevented the appointment of Ralston as chief of police. Thus, the trial court did not err by granting Terre Haute’s motion for summary judgment. See, e.g., Langman v. Milos, 765 N.E.2d 227, 236 (Ind. Ct. App. 2002) (holding that the trial court did not err by granting defendant’s motion for summary judgment). For the foregoing reasons, we affirm the trial court’s grant of summary judgment to Terre Haute."Thus, we do not consider the additional evidence proffered by Akaiwa on appeal, and we must conclude that Akaiwa has not produced sufficient evidence to support an inference that he inhaled asbestos dust from an ACL product. Reversed.
In DAP, Inc. v. Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield, a 9-page opinion, Judge Najam writes:
DAP, Inc. (“DAP”) brings this interlocutory appeal from the trial court’s denial of its motion for summary judgment on the claims of Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield. We address a single dispositive issue on review, namely, whether the trial court properly determined that the ten-year statute of repose contained in Indiana Code Section 34-20-3-1 does not apply to Akaiwa’s cause of action. We reverse. * * *Dawn Elizabeth McDowell v. State of Indiana - "The court did not abuse its discretion by admitting evidence or by prohibiting the re-opening of McDowell’s case. Neither did the court abuse its discretion by giving the jury an instruction regarding intent to kill. The evidence was sufficient to support McDowell’s conviction, and the court did not err in sentencing her. For all these reasons, we affirm."However, we need not address the contentions of the parties and amici concerning the operation and effect of Jarboe because DAP is protected by Section 1’s statute of repose.
In sum, we reverse the trial court’s denial of DAP’s motion for summary judgment. Because DAP is not a miner, Section 2 cannot apply to DAP, and Akaiwa’s cause of action is barred by Section 1’s ten-year statute of repose. Further, ITLA’s contention that the “Ott interpretation of Section 2 is unconstitutional,” ITLA’s Brief at 6, 8, is beyond the scope of our review. Akaiwa lacks a cognizable harm from which to challenge any constitutional defect, and DAP, as a non-miner, lacks standing to challenge Section 2.
TH Agriculture & Nutrition, LLC v. Frank Akaiwa, et al - "TH Agriculture and Nutrition, L.L.C. (“THAN”) brings this interlocutory appeal from the trial court’s denial of its motion for summary judgment on the claims of Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield.1 We address a single dispositive issue on review, namely, whether the trial court properly determined that the ten-year statute of repose contained in Indiana Code Section 34-20-3-1 does not apply to Akaiwa’s cause of action. We reverse."
Mary Ann Novatny v. Christopher S. Novatny - "Through the passage of time, by operation of law, Indiana may now be children’s home state, but the court did not have jurisdiction over Father’s Petition when he filed it. “When a court lacks subject matter jurisdiction, its actions are void ab initio and may be challenged at any time.” Allen v. Proksch, 832 N.E.2d 1080, 1095 (Ind. Ct. App. 2005). As noted above, Mother timely objected to the court’s jurisdiction, and the court overruled her objection. The court never reviewed Mother’s contention that the children had a home state that was not Indiana. Just as in Hepner, “[t]he Indiana court lacked power to act because of its failure to seriously address the issue of its jurisdiction under the [UCCJA].” Hepner, 469 N.E.2d 786. Thus, we are constrained to vacate the court’s modification order."
NFP civil opinions today (7):
In John and Dorothy Arndt & Arndt, LLC v. Porter County Plan Commission (NFP), a 6-page opinion, Judge May writes:
John and Dorothy Arndt, and John Arndt LLC (collectively, “Arndt”) appeal the denial of their application for a primary plat by the Porter County Plan Commission (“Commission”). Arndt asserts the Commission had no discretion to deny his application because he submitted all documentation required by the Porter County Subdivision Control Ordinance. The Commission did not abuse its discretion in finding Arndt failed to provide sufficient information to demonstrate compliance with Porter County’s Open Space Ordinance, and we accordingly cannot find the Commission erred when it denied his application. Therefore, we affirm. * * *In Stephen Summers v. Kenneth Davis and Jennifer Davis (NFP), a 13-page 2-1 opinion, Judge Najam concludes:The Commission had before it both lay testimony and scientific evidence regarding the soil, water table, “swampy conditions,” “undisturbed natural features,” and “fragile environment” at Rilan Acres. We must defer to the Commission’s expertise in finding “[s]tandard management practices may not be sufficient to protect this fragile environment” and “[n]atural features on this property . . . may require a greater set aside under the open space requirements.” Those findings support the Commission’s conclusion Arndt did not provide sufficient evidence to demonstrate the land was suitable for development under the Open Space Ordinance. Therefore, we affirm the denial of his application for primary plat approval.
Here, the court did not hold an evidentiary hearing on the attorney’s fee issue, and there is no indication that it considered the parties’ resources, economic condition, or other factors that would bear on the reasonableness of the award of attorney’s fees. When it awarded attorney’s fees without such a hearing, the trial court abused its discretion. Allen v. Proksch, 832 N.E.2d 1080, 1103 (Ind. Ct. App. 2005). Thus, we reverse the portion of the court’s order that Summers pay the Davises’ attorney’s fees in the amount of $907 and remand for a hearing for the court to consider the necessary factors bearing of the reasonableness of the award.George Long, Jr. v. Wood-Mizer Products, Inc. (NFP) - "Appellant-defendant George A. Long, Jr., d/b/a George’s Wood Yard (Long), appeals the trial court’s order finding Long liable for his breach of a promissory note and security agreement with appellee-plaintiff Wood-Mizer Products, Inc. (Wood-Mizer), for the purchase of a portable sawmill. Long makes a number of unsuccessful arguments that are supported by scant citations to the record and little supporting authority. Finding no error, we affirm the judgment of the trial court."In summary, the trial court correctly denied Summers’ Motion to Correct Error and it did not commit reversible error when it denied Summers’ the opportunity to make an offer of proof. The court, however, abused its discretion in awarding attorney’s fees, and we reverse that portion of its order. Affirmed in part and reversed and remanded.
MATHIAS, J., concurs. FRIEDLANDER, J., concurs in part and dissents in part with separate opinion:
I agree with the Majority in all respects except for its reversal of the award of attorney fees. It is clear from the material before us that Summers’s lack of cooperation drove up the Davises’ legal costs. Moreover, in the context of the amount of legal representation that was obviously required in this case, the amount of attorney fees awarded, i.e., $907, is simply too low to quibble about. I would affirm that award.
Sun Chemical v. Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield, Deceased (NFP)
In Linda Harter v. Larry Couch and Rose Couch (NFP), a 9-page opinion, Judge Friedlander concludes:
At a deposition, Harter explained the incident, in pertinent part, as follows:NFP criminal opinions today (12):I – when I started out, I started out to start my car to warm it up and then go back in and finish getting ready for work. So I inched out. I held onto the side of the house and inched – I knew the ice was there. Now how bad it was. I didn’t know that until the EMTs came to get me. But I inched across there. I knew it was slick and made it to the last – the last step just before you step down to another step, and that’s when I went off.Appellant’s Appendix at 38-39 (emphasis supplied). Elsewhere in the deposition, Harter described the conditions outside when she awoke that morning: “It was raining a heavy – not a heavy rain but a mist. It had snowed though sometime during the night because there was snow and ice both on the – on the ground and on the porch.” Id. at 41. Clearly, Harter acknowledged not only that the ice on the porch was open and obvious, but also that she was specifically aware of its presence.Considering the facts most favorable to Harter, and after reviewing the materials designated by the parties, we affirm the grant of summary judgment in favor of the Couches.
Robertson Fowler v. State of Indiana (NFP)
Randy Beck v. State of Indiana (NFP)
Jodi Lynn Gillman v. State of Indiana (NFP)
Anthony Harvey v. State of Indiana (NFP)
Sheri K. Buston v. State of Indiana (NFP)
Mark A. Rodgers v. State of Indiana (NFP)
Donald E. Weaver, Jr. v. State of Indiana (NFP)
James Kanable v. State of Indiana (NFP)
Tyrone LaSalle Noble v. State of Indiana (NFP)
John Dean, Jr. v. State of Indiana (NFP)
J.R. v. State of Indiana (NFP)
Keith Derrick Bibbs v. State of Indiana (NFP)
Posted by Marcia Oddi on August 31, 2007 01:08 PM
Posted to Ind. App.Ct. Decisions