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Monday, January 28, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

For publication opinions today (4):

In In the Matter of the Unsupervised Estate of Carl Deiwert; Wallace Richard Deiwert v. Judith McKinney , a 6-page opinion, Judge Bradford writes:

Appellant/Cross-Appellee Wallace Richard Deiwert (“Dick”) appeals from the probate court’s order concluding that he failed to timely exercise an option to purchase certain real estate from the estate of his father Carl Deiwert (“Carl”). Appellee/Cross-Appellant Judith McKinney contends that this court does not properly have jurisdiction over this interlocutory appeal. We affirm. * * *

Because the ultimate effect of the probate court’s ruling was to deliver possession of the McKinney Tracts to McKinney, Dick had a right to appeal that ruling under Rule 14(A)(4), and we therefore decline McKinney’s request to dismiss this appeal. * * *

The probate court properly concluded that Dick failed to properly preserve his right of first refusal as provided for in Carl’s will.

In Indiana Department of Transportation and State of Indiana v. Robert Howard and Lynn Howard, et al., a 12-page opinion on a petition for rehearing, Judge Robb writes:
We grant the petition for rehearing, vacate our earlier decision, and consider the merits of the issue raised by INDOT’s appeal: whether the trial court properly set aside its prior entry of summary judgment. Concluding that the trial court did not abuse its discretion in granting the motions to correct error because a genuine issue of material fact kept INDOT from being entitled to summary judgment, we affirm.
In Tornatta Investments, LLC v. Indiana Department of Transportation , an 8-page opinion, Judge Mathias writes:
Tornatta Investments (“Tornatta”) filed a complaint for declaratory judgment in Warrick Superior Court against the Indiana Department of Transportation (“INDOT”) alleging that INDOT’s purchase of an adjacent property caused a substantial diminution in value of Tornatta’s real estate, which resulted in a taking without just compensation. The trial court concluded that INDOT’s actions did not constitute a taking and entered judgment in favor of INDOT. Tornatta appeals and argues INDOT’s purchase of the adjacent real estate interfered with Tornatta’s right to assemblage, and the interference of such right resulted in a compensable taking. We affirm.
In Samuel Lesjak v. New England Financial , a 10-page opinion, Chief Judge Baker writes:
Appellant-defendant Samuel Lesjak appeals the trial court’s order requiring that he arbitrate the claim filed against him by appellee-plaintiff New England Financial in a forum other than the National Association of Securities Dealers (NASD). We find that the substance of this appeal is moot, inasmuch as New England Financial began arbitration proceedings with the NASD during the pendency of this appeal, notwithstanding the fact that it had argued and represented to the trial court for months that the claim was not arbitrable by the NASD. We also find, however, that Lesjak has established that he is entitled to appellate attorney fees and costs for New England Financial’s bad faith during this appeal. Thus, we dismiss the appeal as moot and remand to the trial court with instructions to consider whether Lesjak is entitled to attorney fees and costs for the litigation that occurred prior to this appeal and to calculate the amount of appellate attorney fees and costs to which Lesjak is entitled.
NFP civil opinions today (2):

Paul W. Grim v. Golden Rule Insurance Company and Gary Fry (NFP) - "In this appeal, Grim argues that the trial court erred in granting summary judgment for Golden Rule because the designated evidence established that Grim was entitled to seek damages for breach of Golden Rule’s implied covenant of good faith and fair dealing. Grim also asserts that the trial court erred in concluding that an intervening bankruptcy necessarily terminated his action against Golden Rule for breach of contract. Concluding that the trial court properly entered summary judgment for Golden Rule, we affirm."

Jack & Pam Miller v. Eugene Wedekind (NFP) is a 2-1 opinion. "The Cass Circuit Court entered judgment in favor of Eugene Wedekind d/b/a Associated Builders (“Wedekind”) in a breach of contract action brought against him by Jack Miller (“Jack”) and Pam Miller (“Pam”) (collectively “the Millers”). The Millers appeal and claim that the trial court’s judgment erroneous. Specifically, the Millers argue that the evidence supports their claim that Wedekind failed to construct a pole building in a workmanlike manner. We reverse and remand for proceedings consistent with this opinion."

From the dissent: "We review findings of fact for clear error. LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 965 (Ind. 2006). Because the trial court’s findings and conclusions are not clearly erroneous, see Ind. Trial Rule 52(A), I must dissent."

NFP criminal opinions today (10):

Darrick Miller v. State of Indiana (NFP)

Christine Barkley v. State of Indiana (NFP)

Shane Locker v. State of Indiana (NFP)

Freeman Irby v. State of Indiana (NFP)

Jamaar Bess v. State of Indiana (NFP)

Steven E. Briscoe & Roger F. Briscoe v. State of Indiana (NFP)

Bradley J. Scott v. State of Indiana (NFP)

Thomas Smith v. State of Indiana (NFP)

Robin L. Schlusser v. State of Indiana (NFP)

Fred Garner v. State of Indiana (NFP)

Posted by Marcia Oddi on January 28, 2008 02:02 PM
Posted to Ind. App.Ct. Decisions