The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 12 today (and 24 NFP)

« Ind. Courts - Zionsville schools health fee would become voluntary under settlement | Main | Ind. Courts - City Court Judge Brandy Goodman proposes a probation department »

Thursday, March 20, 2008

Ind. Decisions - Court of Appeals issues 12 today (and 24 NFP)

For publication opinions today (12):

Kevin Taylor v. State of Indiana - "Based upon the evidence submitted to the post-conviction court, the court did not err in finding that Taylor failed to establish that he received ineffective assistance of trial or appellate counsel. However, we conclude that Taylor was deprived of a procedurally fair hearing due to the performance of his post-conviction counsel. Therefore, we reverse and remand for a new post-conviction hearing."

Edward J. Allison and Henry Charles Safford v. Union Hospital and Wabash Valley Anesthesia, P.C. - "The appellants argue that the trial court erroneously entered summary judgment in the appellees’ favor on the appellants’ claims for tortious interference with contractual relationship against both appellees and constructive fraud and breach of the duty of good faith and fair dealing against Union. Finding that summary judgment was erroneously entered on the tortious interference claim against Union but properly entered on all remaining counts, we affirm in part, reverse in part, and remand for trial on the tortious interference claim against Union."

In Center Townhouse Corp et. al. v. City of Mishawaka , a 17-page opinion, Judge Kirsch summarizes:

Center Townhouse Corporation (“CTC”) and individual townhome owners John W. Schindler, Jr., Ann M. Schindler, Dennis Doordan, Marcia Rickard, Michael A. Nickol, Betty M. Nickol, Richard T. Johnson, and Jeffery A. Greco (“Owners”) brought an inverse condemnation action against the City of Mishawaka and its Parks and Recreation Board (collectively “the City”) relative to the construction of a pedestrian bridge connecting Lincoln Park and Kamm Island. Following a bench trial, the trial court determined that the City had taken property interests belonging to CTC and the Owners without just compensation. Subsequently, a jury trial was held on the issue of damages, and the jury returned a verdict of zero damages. In this appeal, Owners appeal the damages verdict and resulting judgment in favor of the City, and the City cross-appeals the decision that a taking occurred.

We consolidate and restate the issues raised by the parties as follows: I. Whether the trial court erred when it determined that the construction of the pedestrian bridge constituted a taking. II. Whether riparian rights in Indiana include the right to an unobstructed view of the body of water that created those riparian rights. III. Whether the trial court erred when it instructed the jury that it should not consider any loss of view when determining damages caused by the taking. We affirm.

In Larry Bowyer d/b/a Lakes Limited Liability Corp. v. Indiana Department of Natural Resources , a 15-page opinion, Judge Najam writes:

Larry Bowyer d/b/a Lakes Limited Liability Corp. (“Bowyer”) brings this interlocutory appeal from the trial court’s order establishing the average normal water level of Lake Cicott. Bowyer asserts three issues for review, which we consolidate and restate as: 1. Whether the trial court properly construed and applied Indiana Code Chapters 14-26-4 and 14-26-2. 2. Whether sufficient evidence supports the court’s determination of Lake Cicott’s average normal water level. We affirm.

In Elizabeth (Bevers) Dryden v. Kevin Bevers , a 13-page opinion, Judge Vaidik writes:

After a divorced couple and their three children all moved from Indiana to Florida, Kevin Bevers (“Father”) filed a motion to transfer the case. The trial court granted the motion and transferred the case to the State of Florida. Elizabeth Dryden (formerly Bevers) (“Mother”) filed a motion to correct error, alleging that the trial court erred in transferring jurisdiction over the case. The trial court denied her motion, and Mother appeals. She argues that Father waived the jurisdictional provisions of the Uniform Child Custody Jurisdiction Law (“UCCJL”) and the Uniform Interstate Family Support Act (“UIFSA”) by not objecting to the Indiana court’s exercise of jurisdiction at an earlier date and that Indiana must continue exercising jurisdiction pursuant to these statutes. Because the underlying dispute does not pertain to child custody matters, the UCCJL is irrelevant to this appeal. As it is unclear whether the trial court intended to transfer limited jurisdiction to enforce the order or exclusive jurisdiction to modify the order, we address both types of jurisdiction in this case. We conclude that Indiana has jurisdiction to enforce its order, and it was not an abuse of discretion to transfer the case to Florida for enforcement of the Indiana order. Regarding jurisdiction to modify Indiana’s order, while the Indiana statute indicates that we have continuing, exclusive jurisdiction over the parties’ child support order, we do not under the federal Full Faith and Credit for Child Support Orders Act (FFCCSOA). Because the FFCCSOA provides that Indiana no longer has continuing, exclusive jurisdiction over prospective modifications of the support order and because both Florida and Indiana have the authority to enforce the existing Indiana order, we affirm.

In Lake County Trust Company v. Advisory Plan Commission of Lake County, Indiana , a 20-page opinion, the Court discusses, on p. 19, "the requirements of the Open Door Law in the context of mediation."

In Darvous Clay v. State of Indiana , a 7-page opinion, CJ Baker writes:

Darvous Clay appeals his thirty-two-year sentence for Burglary,1 a class A felony. Specifically, Clay argues that (1) the provision of his plea agreement waiving his right to directly appeal his sentence is unenforceable, and (2) his sentence is inappropriate. We find the provision of the plea agreement in which Clay waived his right to directly appeal his sentence to be unenforceable because of the lack of evidence showing that Clay understood that he was waiving that right when he entered into the plea agreement. However, we do not find Clay’s sentence to be inappropriate and, thus, affirm the judgment of the trial court.

Garganus T. Moore v. State of Indiana

James Malone v. State of Indiana

Joshua E. Gale v. State of Indiana

Termination of Parent-Child Relationship of A.P.; Eduardo Perez v. Marion County Department of Child Services

In Maggie Bush and Leonard Bush v. State Farm Mutual Automobile Insurance Company , a 10-page, 2-1 opinion, Judge Kirsch concludes:

In the present case, we conclude that the language in State Farm’s policy, which purports to limit recovery of uninsured motorist benefits only to situations where the insured sustains bodily injury, violates Indiana’s uninsured motorist statute. As stated above, the statute mandates coverage (1) for the protection of persons insured under the policy (2) who are legally entitled to recover damages because of bodily injury, sickness, or disease, including death, (3) from the owner or operator of an uninsured motor vehicle. Here, the Bushes are persons insured under the policy, as they are the named insureds on the declarations page of the insurance policy. They are legally entitled to recover damages because of the death of Leonard. Pursuant to IC 34-23-1-2, the Bushes were entitled to recover damages for the loss and companionship of Leonard due to his death caused by the wrongful act or omission of another person. Additionally, the operator of the vehicle that caused Leonard’s death, Washington, was uninsured. Thus, the Bushes’ claim falls within the purview of Indiana’s uninsured motorist statute. State Farm’s requirement that bodily injury must occur to an insured precludes recovery of damages that the Bushes are legally entitled to recover. The policy requirement violates the statute and is therefore void. The trial court erred when it granted summary judgment in favor of State Farm. We reverse and remand with instructions for the trial court to enter summary judgment in favor of the Bushes. Reversed and remanded.

ROBB, J., concurs.
BARNES, J., dissents with separate opinion. [which begins] I respectfully dissent. I am unable to conclude that Indiana’s Uninsured Motorist Statute requires coverage for the Bushes under these facts. Despite the majority’s holding to the contrary, I believe this case must be controlled by our decision in Armstrong v. Federated Mutual Insurance Company,

NFP civil opinions today (10):

Susan Royer, DDS v. Four Season Group, LLC (NFP)

Clarence E. Lowe v. Northern Indiana Commuter Transportation (NFP)

In Re the Adoption of E.W.; Jeremy Behan v. Amanda & Brian Wawok (NFP)

William R. Knapp v. Kala M. Knapp (NFP)

A.R.B. by her Natural Parents and Friends v. Roy Defries, M.D., et al. (NFP)

Termination of Parent-Child Relationship of D.S.; Donald & Terri Stedman v. Greene County Department of Child Services (NFP)

Termination of Parent-Child Relationship of C.C. & A.M.; Eva A. Conrad v. Tippecanoe County Department of Child Services (NFP)

J.B. v. The Board of Trustees of Vincennes University (NFP)

In Re the Adoption of R.B.H.; Mark L. Harper v. David Eugene Elliott, Jr. (NFP)

Termination of Parent-Child Relationship of K.B. and T.B.; Tana Burwell v. Allen County Department of Child Services (NFP)

NFP criminal opinions today (14):