The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)

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Friday, September 07, 2007

Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)

For publication opinions today (1):

In State Farm Mutual Automobile Insurance Company v. Troy E. Cox. an 11-page opinion, Judge Darden writes:

State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the order awarding to its insured, Troy D. Cox, the sum of $50,000.00 deposited with the trial court by Kentucky National Insurance Company (“Kentucky”) on behalf of Aaron McCauley. We affirm. * * *

The trial court found that State Farm’s claim to the $50,000.00 was one of subrogation, and we agree. The policy provides that State Farm may recover its uninsured motor vehicle coverage payments “only after the insured has been fully compensated.” (App. 136). Whether Cox had “been fully compensated” remained a material question of fact when State Farm made its second motion for summary judgment. After trial, the trial court determined that Cox’s damages totaled $182,000.00 and that he had only received a total of $130,000.00 to date from State Farm. Therefore, pursuant to the terms and the “Conditions” of State Farm’s policy, (App. 136), Cox had not been fully compensated, and State Farm was not entitled to any of the $50,000.00 made available by Kentucky.

The policy contains “clear and unambiguous” language regarding State Farm’s ability to recover payments from its insured. Dunn, 836 N.E.2d at 251. Specifically, the provision states that State Farm’s “right to recover [its] payments under uninsured motor vehicle coverage applies only after the insured has been fully compensated.” (App. 136). The provision does not reference its earlier anti-stacking and policy-to-policy comparison limitations. Observing its obligation to read the policy as a whole and to interpret the policy so as to harmonize its provisions rather than place them in conflict, Dunn, 836 N.E.2d at 251, the trial court did not err as a matter of law in concluding that State Farm was not entitled to the $50,000.00 because, after having received $130,000.00, Cox had not been fully compensated for the $182,000 in damages he suffered as a result of the accident.

NFP civil opinions today (5):

Jason Dobosiewicz v. David J. Drajer and Irene Carlson (NFP) - "The trial court’s conclusion that a partnership did not exist between Dobosiewicz and Carlson and Drajer was not clearly erroneous. We affirm."

Dennis Conwell, Frank Splittorff, and Piece of America, LP v. Gray Loon Outdoor Marketing Group, Inc. (NFP) - This is a 8-page opinion involving payments for making alterations to a web site. Senior Judge Hoffman concludes:

[I.] The trial court concluded that the changes to the website were made at POA’s request for the purpose of enhancing the website and giving it additional capabilities. (Trial Court’s Conclusion of Law #8). In this process, the original digital files were altered to create the requested website, and the digital files that POA originally paid for were incorporated into the new website. In this manner, the original digital files were “destroyed.” The trial court reasoned that because the “destruction” through incorporation of the original digital files took place at POA’s behest, Gray Loon could not be found liable for converting the original files by either appropriation or destruction of POA’s personal property. Stated differently, the trial court’s judgment acknowledged that “forfeiture” of the $8,500 invested in the original website was occasioned by POA, not Gray Loon. We see no engrafted forfeiture provision here. Furthermore, we cannot say that the trial court erred in concluding that there was no conversion under the facts of this case. * * *

[II.] We further note that even though the cost of creation of a new website exceeded $500.00, POA cannot avail itself of the protection provided by the Statute of Frauds. The oral agreement between the parties is enforceable under Ind. Code § 26-1-2-201(3)(a) because the website was specially modified for POA and is not suitable for sale to others in the ordinary course of Gray Loon’s business. Also, the oral agreement is enforceable under Ind. Code § 26-1-2-201(3)(b), which provides that an oral agreement is enforceable “if the party against whom enforcement is sought admits in his pleading, testimony, or otherwise in court that a contract for sale was made. . . .” Here, POA admitted in both its answer and in Conwell’s and Splittorff’s testimonies that it requested the creation of a new website. Furthermore, Conwell and Splittorff both admitted that Gray Loon created the new website at Conwell’s behest.

The parties’ failure to establish price at the time of the agreement does not render the contract unenforceable. Ind. Code § 26-1-2-305 governs contracts in which the price is not settled. Given the fact that the only evidence presented was that the price was $5,224.50, we cannot say that the trial court was clearly erroneous in assigning that price. Even though it may have been a better practice for Gray Loon to inform POA of the cost before performing the requested modifications, we cannot say that the failure to do so should render the contract unenforceable.

Matthew S. Strahle v. Lisa M. Rhorer (NFP) - "Matthew S. Strahle (“Father”) appeals the trial court’s order modifying child support. We dismiss. * * * Here, only a partial transcript of the final dissolution hearing has been made available for our review, and Father has not provided a verified statement of evidence.3 We therefore are unable to conduct a meaningful review of the issues presented by Father. Accordingly, we must dismiss Father’s appeal."

Charles A. Warnsley v. Sheila A. Warnsley (NFP) - "Charles A. Warnsley (“Husband”) appeals the trial court’s order dissolving his marriage to Sheila A. Warnsley (“Wife”). We reverse and remand with instructions. Issue. Whether the trial court erred in valuing Husband’s retirement fund."

In Alvena Perry v. Rick Patterson, Individually and d/b/a Record Cellar (NFP), a 4-page opinion, Judge Darden writes:

Alvina Perry appeals the trial court’s granting of the motion to correct error filed by Rick Patterson, individually and d/b/a Record Cellar (“Patterson”). We reverse.

Issue. Whether the trial court improperly granted Patterson’s motion to correct error. * * *

In this case, the trial court did not set a hearing on Patterson’s motion to correct error. Thus, the motion was deemed denied on or about August 28, 2006, or forty-five days after Patterson filed it. Patterson did not timely initiate an appeal after the motion was deemed denied. Perry, however, timely appealed the belated granting of the motion.

Given the facts before us, we find that the motion to correct error was deemed denied on or about August 28, 2006 pursuant to Trial Rule 53.3(A), and the trial court’s belated granting of the motion cannot stand. Reversed.

NFP criminal opinions today (13):

Ira C. White v. State of Indiana (NFP)

Ernest Smith v. State of Indiana (NFP)

Michael Kelnhofer v. State of Indiana (NFP)

Farrell Henderson v. State of Indiana (NFP)

Dale Mundy v. State of Indiana (NFP)

John Taylor v. State of Indiana (NFP)

Ronnie E. Polk v. State of Indiana (NFP)

Antonio Stoudemire v. State of Indiana (NFP)

Lynn Wiggins v. State of Indiana (NFP)

Jamel Gilbert v. State of Indiana (NFP)

Francis Lamarr Sims v. State of Indiana (NFP)