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Tuesday, July 15, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 13 NFP)

For publication opinions today (5):

In Lauth Indiana Resort & Casino v. Lost River Development, et al., a 14-page opinion, Judge Mathias writes:

Appellant-Defendant Lauth Indiana Resort & Casino, LLC (“Lauth”) brings this interlocutory appeal from the order of the Hamilton Superior Court denying its motion for partial summary judgment in the suit brought against Lauth by Appellees-Plaintiffs Merit Gaming Group, LLC (“Merit”), Auburn Gaming Co., LLC (“Auburn Gaming”), and Lost River Development, LLC (“Lost River”). We reverse and remand. * * *

[The opinion details the history of the riverboat casino project in Orange County, Indiana, and the involvement of "Trump Indiana Casino Management, LLC (“Trump Indiana”), Orange County Development, LLC (a group affiliated with French Lick native Larry Bird), and current Appellee-Plaintiff Lost River."]

Lauth admits that the Letter Agreement formed a joint venture for the development of the Lost River casino proposal, but Lauth claims that this joint venture ended as a matter of law when the IGC chose the proposal of Trump Indiana. Thus, Lauth claims, it could not have breached the Letter Agreement or breached any fiduciary duties to the other joint venturers because the joint venture was no longer in existence at the times in question.

Merit agrees that the Letter Agreement formed a joint venture. However, Merit argues that there is at least a genuine issue of material fact with regard to whether the joint venture was still in existence. Merit focuses its argument on the extensive contact between the parties which occurred after the times which Lauth now claims acted to end the joint venture as a matter of law. Merit argues that if Lauth truly believed that the joint venture had ended, then Lauth would not have communicated with the other joint venturers as if the joint venture were still in existence.

The parties further agree that this case presents an issue of first impression in Indiana regarding precisely when a joint venture terminates in those cases where the joint venture agreement itself contains no specific termination date. Although research has revealed no Indiana case which has addressed this issue, there does seem to be a consensus among our sister states and in federal jurisdictions with regard to this issue. Specifically, the generally accepted law of joint ventures is that “[a] joint venture without a termination date remains in force until its purpose is accomplished or that purpose becomes impracticable.” * * * Both parties urge us to adopt this rule, and we see no reason not to do so. But this does not end our discussion. To apply this rule, we must determine if and when the purpose of the joint venture between the parties was accomplished or became impossible or impracticable. * * *

In conclusion, we hold that if a joint venture is formed for the purpose of submitting a proposal or similar bid, and the joint venture agreement is silent as to when or under what circumstances the joint venture will end, then the joint venture ends, as a matter of law, when the proposal or bid is rejected. Therefore, the Lost River joint venture ended as a matter of law when the IGC chose the proposal of Trump Indiana. Lauth therefore did not breach the joint venture agreement or any duties it had to the other parties to the joint venture when it partnered with the Cook Group, and the trial court erred in denying Lauth’s motion for summary judgment. The judgment of the trial court is reversed, and the cause is remanded for proceedings consistent with this opinion. Reversed and remanded.

In Whitney Turner v. Franklin County Four Wheelers Inc., et al. , a 9-page opinion, Judge Brown writes:

Whitney Turner appeals the trial court’s grant of a motion to dismiss filed by Franklin County Four Wheelers, Inc., the Fair Board of Franklin County, the Franklin County 4-H Fairgrounds, and the Franklin County Commissioners (collectively, “Defendants”). Turner raises one issue, which we restate as whether the trial court abused its discretion by denying her motion to amend her complaint and granting the Defendants’ motion to dismiss. We reverse and remand.

The relevant facts follow. On May 25, 2007, Turner filed a complaint for damages against the Defendants. However, due to either a human error or an error in the computer program Turner’s counsel uses to generate his signature on pleadings, the complaint did not contain a signature of Turner’s counsel. At the same time Turner filed her complaint, her counsel also filed a notice of appearance, which contained his stamped signature.

On August 7, 2007, the Fair Board of Franklin County and the Franklin County 4-H Fairgrounds filed a motion to strike the complaint pursuant to Ind. Trial Rule 11(A) because the complaint was not signed. Turner responded by filing a motion for leave to amend the complaint. The Fair Board of Franklin County and the Franklin County Commissioners then filed an objection to Turner’s motion for leave to amend her complaint and filed a motion to dismiss. After a hearing, the trial court entered an order
denying Turner’s motion for leave to amend her complaint and granting the motion to dismiss pursuant to Ind. Trial Rule 11(A).

The issue is whether the trial court abused its discretion by denying Turner’s motion to amend her complaint and granting the Defendants’ motion to dismiss. Turner argues that the trial court’s dismissal of her action and failure to grant her motion to amend was “extreme” and an abuse of discretion. * * *

The dismissal of Turner’s action was an extreme remedy for the mistake of Turner’s counsel. The record reveals no undue delay, bad faith or dilatory motive on Turner’s part and no repeated failure to cure the deficiency. The Defendants argue that they would be prejudiced by the amendment because the statute of limitations has run. The Defendants also argue that the amendment would be futile because the complaint was stricken, leaving nothing to amend.

Given our preference for deciding cases on the merits, we must disagree with the Defendants’ arguments, concluding that, in conjunction with granting the motion to amend, the trial court should have denied the motion to strike. Thus, under Ind. Trial Rule 15(C), the amended complaint then would relate back to the date of the original complaint. We conclude that the trial court abused its discretion by granting the Defendants’ motion to strike and that the trial court abused its discretion by denying Turner’s motion to amend her complaint. Consequently, we conclude that the trial court abused its discretion by granting the Defendants’ motion to dismiss.

For the foregoing reasons, we reverse the trial court’s grant of Defendants’ motion to strike, the trial court’s denial of Turner’s motion to amend, and the grant of Defendants’ motion to dismiss and remand for proceedings consistent with this opinion.

In Donald D. Vanhorn v. State of Indiana , a 14-page, 2-1 opinion, Judge Crone writes:

Specifically, VanHorn asserts that the State failed to establish that his conduct constituted “harassment” of or “impermissible contact” with Franks. VanHorn observes that the complained-of conduct merely consists of parking near Franks’ house on four separate occasions and looking at Franks’ house through binoculars on two of those occasions. He points out that he made no actual physical contact with Franks and that he made no telephone calls, left no notes, or at any time stepped onto Franks’ property. Therefore, he argues, his conduct does not constitute contact, let alone meet the legal definition of “impermissible contact.”

VanHorn presents an issue of first impression. In fact, we have been presented with few opportunities to examine the parameters of “harassment” and “impermissible contact.” * * *

We think that when a defendant’s conduct in a public place where the defendant has a lawful right to be, and that conduct alone, is alleged to constitute harassment, the accused’s due process rights must be safeguarded. In other words, when the government prohibits an individual from engaging in otherwise lawful conduct, it is important to provide the accused with notice and an opportunity to be heard. * * *

The issuance of a protective order pursuant to Indiana Code Section 34-26-5 would address our concerns by providing notice to the individual, an opportunity to be heard, and, where the issuance of a protective order is justified, a clear statement that his or her conduct is impermissible.5 No protective order was sought in this case. * * *

Accordingly, we conclude that the evidence was insufficient to support VanHorn’s conviction for stalking. Reversed.

BARNES, J., concurs.
BRADFORD, J., dissents with opinion. [which begins] In my view, otherwise lawful contact may be “impermissible” and satisfy the “harassment” element of stalking without being defined as such by a protective order or other official means providing notice and an opportunity to be heard. I understand the majority’s reluctance to find apparently “lawful” conduct unlawful, but I am confident that the jury system is an adequate safeguard for preventing unfair convictions for lawful behavior. Indeed, otherwise lawful behavior only constitutes “stalking” if the jury, or factfinder, concludes beyond a reasonable doubt that it would cause a reasonable person to feel terrorized.

In M.S. v. State of Indiana , a 6-page opinion by Judge Brown, "M.S., while driving by the Indiana State Fairgrounds in a sports car, was playing a DVD containing nudity and sexual content on a fifteen-inch video screen mounted in the rearview window and visible to the public." The opinion concludes:

Here, the facts most favorable to the conviction reveal that M.S. was driving a sports car on a busy street near the Indiana State Fairgrounds. We agree with the State that “the area was a public area to which minors had both auditory and visual access to what occurred in the rear window of M.S.’s vehicle.” * * * We conclude that the State presented sufficient evidence that M.S. knowingly or intentionally displayed matter that is harmful to minors in an area to which minors have visual, auditory, or physical access.

For the foregoing reasons, we affirm M.S.’s adjudication as a delinquent for committing an act that would be disseminating matter harmful to minors as a class D felony if committed by an adult.

Harold Donnegan v. State of Indiana - "Harold Donnegan appeals from the denial of his petition for post-conviction relief. We affirm.

""Issues. 1. Whether Donnegan received ineffective assistance of appellate counsel. 2. Whether the prosecutor committed misconduct."

NFP civil opinions today (4):

Term. of Parent-Child Rel. of A.B.; and Cheryl B. v. Jennings Co. Dept. of Child Services - 802 (NFP) - "The trial court’s judgment terminating Mother’s parental rights to A.B. is supported by clear and convincing evidence. Accordingly, we find no error. Affirmed."

Term. of Parent-Child Rel. of C.B.; and Cheryl B. v. Jennings County Dept. of Child Svcs. - 803 (NFP) - "The trial court’s judgment terminating Mother’s parental rights to C.B. is supported by clear and convincing evidence. We therefore find no error. Affirmed."

Term. of Parent-Child Rel. of C.B.; A.B., Mother and M.H., Father v. Adams Co. Dept. of Child Services (NFP) - "A.B. (“Mother”) and M.H. (“Father”) appeal the trial court’s order that terminated their parental relationships with their son, C.B. We affirm."

Jeffrey N. Nelson v. Brooke E. Nelson (NFP) - "The trial court abused its discretion in modifying Mother’s parenting time without making a finding to support the modification. Reversed and remanded for proceedings not inconsistent with this Opinion."

NFP criminal opinions today (9):

Alex E. Castillo v. State of Indiana (NFP)

Kevin M. Cardwell v. State of Indiana (NFP)

Greg Tribby v. State of Indiana (NFP)

William R. Apple v. State of Indiana (NFP)

Mary Hedger v. State of Indiana (NFP)

Donald L. Morris v. State of Indiana (NFP)

Tahmarus Turner v. State of Indiana (NFP)

Thomas Lofton v. State of Indiana (NFP)

State of Indiana v. Willie Dumes (NFP)

Posted by Marcia Oddi on July 15, 2008 10:52 AM
Posted to Ind. App.Ct. Decisions