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Wednesday, June 25, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Burns-Kish Funeral Homes, Inc. v. Kish Funeral Homes, LLC, a 20-page opinion re an interlocutory appeal, Judge Vaidik writes:

Burns-Kish Funeral Homes, Inc. is a family-run funeral home in northwest Indiana that has been in existence for a century.

When part of the Kish family broke off and opened up a competing funeral home down the road from the Burns-Kish Munster, Indiana, location, litigation by part of the Burns family ensued. Burns-Kish Funeral Homes, Inc., Thomas J. Burns, and Jean Burns (collectively “Plaintiffs”) now appeal the trial court’s denial of their Verified Application for Preliminary Injunction against Kish Funeral Homes, LLC, Kevin Kish, and Patricia Kish (collectively “Defendants”) and the appointment of a custodian over Burns-Kish pending a hearing on Patricia Kish’s Counter-Claim for Judicial Dissolution of Burns-Kish.

Specifically, Plaintiffs argue that because Kevin Kish was an officer of Burns-Kish, he owed a fiduciary duty to the corporation and that he breached that duty when he made plans to open his own funeral home, Kish Funeral and Cremation Services; that the trial court erred in not considering evidence that Kish Funeral and Cremation Services would cause confusion and irreparable harm to Burns-Kish; and that the trial court erred in appointing a custodian over Burns-Kish because it cited the wrong statute.

Because the trial court found that Kevin Kish was not an officer of Burns-Kish and the evidence supports this finding, we conclude that Kevin does not owe a fiduciary duty to Burns-Kish and is free to compete with his former employer. In addition, we conclude that the trial court properly excluded evidence from Plaintiffs’ expert on the topic of confusion between the two funeral homes because he was not properly qualified and also properly excluded evidence from Thomas Burns on the topic of confusion. Although the trial court cited the receivership statute in its conclusions, it also cited and properly applied the custodian statute. We therefore affirm the trial court.

In State of Indiana v. John M. Dunn , a 23-page opinion (including a concurrence in result), Judge Vaidik writes:
The State’s construction of a median strip that makes the route of travel to a business property more circuitous is not a compensable taking. We therefore reverse the trial court’s partial summary judgment in favor of business owner John M. Dunn against the State and the subsequent damages awarded to Dunn by a jury. * * *

Dunn filed an inverse condemnation action against the State, alleging that the erection of the median “has completely eliminated all access to the Hotel and Subject Property from the southbound lane of Green River Road,” as it “prevents all left-hand turns from the southbound lanes of Green River Road into the Hotel’s vehicular entrance.” Therefore, according to Dunn, the median “substantially and materially limited and impaired vehicular access to the Subject Property and vehicular egress from the Subject Property,” and this constitutes “a taking of [his] property without just compensation.” He sought monetary compensation for the taking. The State answered and acknowledged that the median “prohibit[ed] left hand turns to and from Green River Road and the public service road.” However, the State contended that Dunn is not entitled to compensation as a matter of law because the erection of medians resulting in circuitous travel to a business is conducted according to the State’s police powers and does not effect a compensable taking. * * * The jury returned a verdict in favor of Dunn in the amount of $3,650,000, and the trial court entered judgment accordingly. * * *

We find one issue dispositive: whether the trial court erred as a matter of law in granting partial summary judgment in favor of Dunn and against the State when the State built a median that forces traffic moving in certain directions to travel a more circuitous route to and from Dunn’s business property. * * *

We recognize that another panel of this Court recently authored State v. Kimco of Evansville, Inc., 881 N.E.2d 987 (Ind. Ct. App. 2007), reh’g denied, trans. granted, an appeal involving another Evansville business owner’s inverse condemnation action in response to the median on Green River Road. * * * In any event, our Supreme Court recently granted transfer in Kimco, thereby vacating the opinion.

In conclusion, landowners have no property right to the free flow of traffic past their properties. Thus, the construction of a median in a roadway that causes traffic traveling to and from an abutting property to travel a circuitous route does not constitute a compensable taking under Indiana eminent domain law. Therefore, Dunn was not entitled to judgment as a matter of law on the issue of whether he suffered a compensable taking, and the trial court erred in granting Dunn’s motion for partial summary judgment. Reversed.

NFP civil opinions today (3):

The Term. of Parent-Child Rel. of A.B.(child) and Cheryl B. (mother) and Jon R. (father) v. Dept. of Child Svcs. (NFP) - "Appellant Jon R. (“Father”) appeals the involuntary termination of his parental rights to his son A.B. We affirm."

Mark Gallagher v. Kathleen Gallagher (NFP) - "Mark Gallagher (“Husband”) appeals the trial court’s order as to the division of assets and debts in the dissolution of his marriage to Kathleen Gallagher (“Wife”). Husband raises two issues, which we consolidate and restate as whether the trial court abused its discretion in dividing the marital assets and debts. We affirm in part, reverse in part, and remand."

Estate of Elsie F. Powell, Sandra K. Bennett, Judith J. Short, et al v. Neva M. Caplinger (NFP) - "In conclusion, Neva’s position as Elsie’s guardian and attorney-in-fact, combined with Neva’s actions of withdrawing money from the joint accounts prior to Elsie’s death, gave rise to a presumption of undue influence with regard to the transactions in question. However, Neva presented sufficient evidence from which the trial court could have concluded that Neva successfully rebutted that presumption. Affirmed."

NFP criminal opinions today (2):

Paul Mayes v. State of Indiana (NFP)

Quentaun Speller v. State of Indiana (NFP)

Posted by Marcia Oddi on June 25, 2008 12:52 PM
Posted to Ind. App.Ct. Decisions