The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 19 NFP)

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Monday, March 31, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 19 NFP)

For publication opinions today (4):

In Sally Gibbs, et al v. Jack David Kashak, et al , a 9-page opinion, Judge May writes:

Sally Gibbs and Jack David Kashak are siblings and the beneficiaries of their parents’ trusts. Jack served as trustee until he was removed by court order on August 5, 2005. Sally filed suit seeking partition of land held by the trust and damages from Jack for breach of fiduciary duty. Sally wanted the land sold and the proceeds divided. Instead, the trial court ordered the land divided. It also denied Sally’s claim for damages. We affirm. * * *

As trustee, Jack had authority and discretion to make disbursements for the education, health, maintenance, and support of the beneficiaries. There is no indication the $65,000, which was drawn over a period of three years, was disproportionate to the beneficiaries’ needs or unnecessarily depleted the trusts, which were worth over $2 million. The trial court made a general judgment on this issue, which we will affirm if it can be sustained on any legal theory supported by the evidence. Estate of Skalka, 751 N.E.2d at 771.5 The foregoing evidence supports a conclusion Jack did not misappropriate or misuse trust funds, and the trial court’s judgment is not erroneous.

In Wayne House v. First American Title Company, Security Title Services, LLC, et al, an 11-page opinion, Judge May writes:

Wayne House appeals the dismissal of his complaint against First American Title Company, Security Title Services, and Centex Home Equity Company. We affirm in part, reverse in part, and remand. * * *

The trial court properly dismissed House’s claim against Centex and his claim under Ind. Code § 34-24-3-1 against First American. However, the trial court erred by dismissing his claim against Security Title and the remaining claims against First American, and we remand for further proceedings on those claims. Affirmed in part, reversed in part, and remanded.

In Barbara Burcham, Christine Balt, and Crooked Creek Community Council, Inc. v. Metropolitan Board of Zoning Appeals Div. 1 of Marion County, et al , a 19-page opinion, Judge May writes:

Crooked Creek Community Council, Inc., appeals the trial court’s affirmation of a zoning variance granted to Celebration Fireworks [to sell fireworks at 5860 North Michigan Road]. On cross-appeal, Celebration and the Metropolitan Board of Zoning Appeals Division I of Marion County (“BZA”) assert we should dismiss this appeal because Crooked Creek does not have standing to challenge a zoning variance. We hold the Appellees waived Crooked Creek’s alleged lack of standing, the trial court did not commit reversible error when it declined Crooked Creek’s request to submit additional evidence, the BZA had authority to modify its 2002 order, and the record supports the grant of the variance. Accordingly, we affirm. * * *

Because the evidence in the record supports all five of the statutory findings [necessary to the granting of a variance], we affirm the BZA’s grant of the variance to Celebration.

Richard K. Klaff v. State of Indiana - "Appellant-Defendant Richard K. Klaff challenges his conviction, following a jury trial, for one count of Class C felony Burglary and one count of Class D felony Theft. Klaff specifically contends that the evidence at trial was insufficient to support his conviction. Concluding that the evidence was sufficient, we affirm. * * *

"Here, the evidence establishes not merely that Klaff was at the house, but also that Klaff was an active participant. The recorded images clearly depicted Klaff walking down the stairs carrying a long, thin object, which resembled the eight-foot copper pipe that was later determined to be missing from the house. The recorded images further depicted Klaff walking, with the long thin object, toward the rear of the house where police later found an open window. Even though the recorded images depict Klaff walking out the front door of the house without the object in his hand, a reasonable jury could infer that he slipped the object out the open rear window because the copper pipe was never recovered anywhere in or surrounding the house. We therefore conclude that the evidence establishes that not only was Klaff present at the house, but also that he was an active participant, and thus the evidence may raise a reasonable inference of guilt."

NFP civil opinions today (5):

In Marlene Mattocks v. Larry and Karen Albanese (NFP), a 13-page opinion, Judge Kirsch writes:

Marlene Mattocks, as the Personal Representative of the Estate of Darwin Schultz, (the “Estate”) appeals the trial court’s decision granting judgment in favor of Larry and Karen Albanese (“Albanese”) and denying the Estate’s counterclaim. The Estate raises three issues, which we restate as: I. Whether the trial court erred in awarding Albanese damages and denying the Estate’s counterclaim; II. Whether the trial court abused its discretion when it did not allow several of the Estate’s witnesses to testify based on Indiana’s Dead Man’s Statute; and III. Whether the trial court abused its discretion when it denied the Estate’s request for discovery sanctions. We affirm.

Term. of Parent-Child Rel. of S.L.H.S., and Andrew Thompson v. Elkhart County Office of Family & Children (NFP) - Termination, affirmed.

In Brenda and Joseph Ottinger v. Patricia Sawyer and Ashwood I Homeowners' Association (NFP), a 13-page, 2-1 opinion, Judge May writes:

Displeased with a fence built by Brenda and Joseph Ottinger, Patricia Sawyer sued to enforce the Covenants of Ashwood I Subdivision. The Ottingers filed a third party complaint against the Ashwood Homeowners’ Association (“Association”), alleging they had detrimentally relied on a voicemail message from an Association board member when they built the fence. The trial court ordered the Ottingers to reconstruct their fence and pay Sawyer’s attorney fees, and it found the Association was not liable to the Ottingers. We conclude the Ottingers violated the Covenants and did not demonstrate that the voicemail estopped the Association from enforcing the covenants. However, the award of attorney fees to Sawyer is not supported by the record; therefore, we affirm in part and reverse in part. * * *

The Ottingers did not comply with the Covenants or the written approval, and they did not establish the elements of promissory or equitable estoppel. Therefore, the Ottingers must reconstruct their fence as ordered by the trial court. However, Sawyer did not support her full request for attorney fees, and the award must be reduced to $6,598.50. Affirmed in part and reversed in part.

RILEY, J., concurs.
KIRSCH, J., dissents, with opinion. [which begins] Do fences make good or bad neighbors?

Apparently, in the Ashwood subdivision in Hamilton County, it depends on which way they face. To me, the trial court’s resolution of this dispute between neighbors is a triumph of form over substance, formalism over fairness, and legalism over reasonableness. Accordingly, I respectfully dissent.

Invol. Term. of Parent-Child Rel. of S.M., and Idowa H. v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - Termination, affirmed.

April M. Hines v. Timothy A. Hines (NFP) - Dissolution decree, motion to correct errors, "We affirm in part, reverse in part, and remand."

NFP criminal opinions today (14):

Richard L. Joiner v. State of Indiana (NFP)

Josh Griffith v. State of Indiana (NFP)

Nicholas Allen Gaunt v. State of Indiana (NFP)

Lucino Martinez Magno v. State of Indiana (NFP)

Harry Keene v. State of Indiana (NFP)

Ronald E. Rogers v. State of Indiana (NFP)

Miguel Gutierrez v. State of Indiana (NFP)

Rojae Brown v. State of Indiana (NFP)

Scott W. Chappell v. State of Indiana (NFP)