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Thursday, November 29, 2007

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Shafer & Freeman Lakes Environmental Conservation Corp. v. Justin and Corraine Stichnoth, a 19-page opinion, Judge Najam writes:

Shafer & Freeman Lakes Environmental Conservation Corporation (“Shafer”) appeals from the trial court’s judgment in favor of Justin and Corraine Stichnoth (collectively “the Stichnoths”) on their complaint alleging negligence. Shafer presents four issues for our review: 1. Whether the trial court erred when it denied Shafer’s summary judgment motion on the issue of whether Justin was a licensee when he dove into Lake Shafer [ILB - from p. 9: "While most visitors to those lakes may reach the water from private property, that fact alone does not convert a lake otherwise held open for public use into a private lake."] . 2. Whether the trial court abused its discretion when it denied Shafer’s motion to bifurcate the trial. 3. Whether the trial court abused its discretion when it permitted expert testimony regarding Justin’s impaired earning capacity. 4. Whether the trial court abused its discretion when it denied Shafer’s motion to withdraw its nonparty defense. We affirm.
NFP civil opinions today (5):

In Termination the Parent-Child Relationship of D.J., K.P. and K.R.; Teffany Reaves v. Marion County Department of Child Services (NFP), an 11-page opinion, Judge Bradford writes:

Appellants-Respondents Kevin and Teffany Reaves (the “Reaveses”) appeal the juvenile court’s order involuntarily terminating Teffany’s parental rights to K.P., D.J., and K.R. (“the children”) and Kevin’s parental rights to K.R.1 Specifically, the Reaveses claim that the Marion County Department of Child Services (“DCS”) did not present sufficient evidence to support the juvenile court’s order terminating their parental rights. Alternatively, they claim that DCS negligently provided them with services, thus impeding their ability to re-acquire custody of their children. We conclude that the sua sponte findings entered by the juvenile court hinder effective appellate review and therefore remand this matter to the juvenile court for the entry of further findings and conclusions thereon. * * *

The termination of one’s parental rights is of such importance that we must be convinced that the juvenile court has based its judgment on proper considerations. Therefore, we conclude that the findings of the juvenile court and its recitation of statutory language as its conclusions thereon are such that we cannot make a determination as to the validity of the termination of the Reaveses’ parental rights. Accordingly, we remand to the juvenile court with instructions to enter factual findings that are fully supported by the evidence and to include an explanation as to how its factual findings support its judgment.

In Spring Lake Chapter of the Izaak Walton League of America, Inc. v. Indiana Division of the Izaak Walton League of America, Inc., Charles Siar and Emil Garcia (NFP), an 11-page, 2-1 opinion, concerns an Izaak Walton League dispute involving the national chapter and the Spring Lake and Indiana Dvision local chapters. Judge Bailey writes:

Spring Lake presents five issues for appeal, which we consolidate and restate as the following two issues: I. Whether summary judgment was properly granted in favor of the Indiana Division upon the malicious prosecution claim; and II. Whether summary judgment was properly granted in favor of the Indiana Division upon the abuse of process claim. * * *

The grant of summary judgment upon the malicious prosecution claim is reversed. The grant of summary judgment upon the abuse of process claim is affirmed. Affirmed in part; reversed in part; and remanded.

VAIDIK, J., concurs.
BAKER, C.J., concurs in part and dissents in part with opinion.

In Estate of Jerome Mintz v. Connecticut General Life Insurance Company and Wayne E. Gruber (NFP), a 21-page opinion, includes a good discussion of the "law of the case" doctrine and Judge Bailey writes:
This opinion addressed the legal issue of breach of contract. It did not address or resolve the outstanding legal issue of whether Gruber was negligent. Therefore, the language in the prior opinion is not the law of the case as to the negligence claim against Gruber. However, the trial court’s entry of summary judgment is sustainable on other grounds. * * *

[As to bad faith, the Courte wrote] Without some evidence that the insurer’s actions departed from their normal routine or were deceitful, unfounded or fraudulent, a bad faith claim will not survive summary judgment. The trial court did not err in granting summary judgment in favor of Connecticut General.

Conclusion. Gruber’s actions were not the proximate cause of the Estate’s injuries and Gruber and Connecticut General were properly granted summary judgment on the Estate’s claims of negligence and vicarious liability. Connecticut General was also entitled to summary judgment for the remaining claim of bad faith because the Estate’s claim was essentially based on Connecticut General’s unwillingness to depart from its stated procedure and make an exception.

MAY, J., concurs.
SHARPNACK, J., concurs in part and dissents in part with [a 6-page] opinion. [which reads in part] A review of the facts most favorable to the Estate reveals that “Mintz told Gruber his health was failing and indicated his desire to convert the entire value of the group coverage to individual policies. Gruber told Mintz he would take care of ‘everything.’” In April 1995, Gruber mailed an application to Mintz to convert the $62,300 lost by the first reduction of group coverage into an individual policy. When Connecticut General informed Mr. Mintz that the check for the premium was incorrect, Mrs. Mintz spoke with Gruber who informed her that everything was fine and that she did not need to worry about anything. Gruber never sent the Mintzes an application for the second conversion nor did anything else to “take care of everything.” Based on the designated evidence, I cannot conclude, as a matter of law, that Gruber’s actions were not a proximate cause of the Mintzes’ injuries.

The Kroger Company v. Patricia K. Hammond (NFP), a 9-page opinion by Judge Robb, concludes: "In taking the cart from Hammond and moving it out of the way, Kroger failed to use ordinary care to protect Hammond’s personal property still in the cart. The record supports the small claims court’s conclusion that Kroger breached its standard of care." Judge Robb's summary:
The Kroger Company (“Kroger”) appeals a small claims judgment against it and in favor of Patricia Hammond in the amount of $570.00. For our review, Kroger raises two issues, which we consolidate and restate as one: whether the small claims court’s judgment was contrary to law. Concluding that the small claims court’s determination that a bailment existed between Hammond and Kroger and that Kroger breached its standard of care as bailee is not clearly erroneous, we affirm.
Invol. Term. of Parent-Child Rel. of O.E., S.E., and M.E., and Desirae Evans v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - "Concluding that the trial court acted within its discretion in denying Desirae’s motion for a continuance and that sufficient evidence supports the order, we affirm."

NFP criminal opinions today (3):

Gwendolyn Lewis v. State of Indiana (NFP)

Raymond J. Flack v. State of Indiana (NFP)

Jose Alfredo Brena v. State of Indiana (NFP)

Posted by Marcia Oddi on November 29, 2007 01:12 PM
Posted to Ind. App.Ct. Decisions