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Thursday, July 17, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Terra Nova Dairy, LLC v. Wabash Co. Board of Zoning Appeals , a 12-page opinion involving the denial of an improvement location permit for the construction of a CAFO by the BZA, Judge Crone writes:

Terra Nova Dairy, LLC, appeals from the denial of its application for an improvement location permit (“ILP”) for the construction of a concentrated animal feeding operation (“CAFO”). We affirm.

Issue. We restate the issue as whether the decision of the Wabash County Board of Zoning Appeals (“BZA”) to deny Terra Nova’s ILP application was arbitrary and capricious. * * *

Thus, as of February 28, 2007, the Ordinance required Terra Nova to submit both an application for an ILP and an application for a certificate of occupancy. Because Terra Nova failed to submit the latter, the BZA deemed the former to be incomplete.

At this point, we reiterate the well-established principle that “[p]roperty owners are charged with knowledge of ordinances that affect their property.” * * *

Having found no error, we affirm the BZA’s decision.

In Monica Joyner-Wentland, M.D. v. Pamela J. Waggoner, a 12-page opinion, Judge Kirsch writes:
Monica Joyner-Wentland, M.D. (“Dr. Joyner-Wentland”) appeals a jury verdict in favor of Pamela J. Waggoner (“Waggoner”) in a medical malpractice case arising from Dr. Joyner-Wentland’s failure to order a pre-surgery mammogram before breast augmentation surgery. Dr. Joyner-Wentland raises the following restated issue: whether the trial court abused its discretion in failing to give her tendered final jury instructions on contributory negligence given Waggoner’s admission that she provided incorrect information regarding the date of her last mammogram prior to her surgery. We affirm. * * *

The evidence at trial was overwhelming that Waggoner’s incorrect information on her intake sheet about the date of her last mammogram did not contribute to her injuries.

Mark Hurst v. State of Indiana - "The maximum sentence imposed by the trial court is appropriate in light of Hurst’s character and nothing about the nature of the offense supports a contrary conclusion. Judgment affirmed."

NFP civil opinions today (3):

Talib Alway, et al v. Big C Lumber Company, Inc. (NFP) - "Talib Alway appeals the trial court’s order finding him liable as a personal guarantor to Big C Lumber Co. (“Big C”) for debts incurred by Joseph Saviano d/b/a Classic Builders. We reverse.

"Issue. Whether the trial court erred when it considered extrinsic evidence as to the guaranty and proceeded to reform the guaranty’s terms."

Shoney's, Inc., et al v. Mid-American Five & Casualty Co. (NFP) - "Shoney’s has not demonstrated that a question of material fact exists as to whether Mid-American breached its duty of good faith and fair dealing to the Estate. The claims raised by Shoney’s in support of its bad faith argument are either waived, contradicted by the record, otherwise unsupported, or incorrect as a matter of law. Because the waiver and estoppel claim is based solely on the allegation of bad faith, Shoney’s has not demonstrated the existence of a question of material fact regarding waiver and estoppel. Thus, we conclude that the trial court did not err when it granted Mid-American’s motion for partial summary judgment on the bad faith and waiver and estoppel claims. Affirmed."

Robina N. Mount v. Richard Paul Mount (NFP) - "Robina N. Mount (“Mother”) appeals from the trial court’s order granting a motion filed by Richard Paul Mount (“Father”) to modify custody of the parties’ minor children, J.M. and D.M. (“the boys” or “the children”). Mother presents a single issue for review, namely, whether the trial court abused its discretion when it granted Father’s motion. We affirm."

NFP criminal opinions today (3):

Christopher Arbuckle v. State of Indiana (NFP)

Q.T.F. v. State of Indiana (NFP)

Allen Lee Howell v. State of Indiana (NFP)

Posted by Marcia Oddi on July 17, 2008 12:28 PM
Posted to Ind. App.Ct. Decisions