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Friday, July 18, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Indiana Dept. of Environmental Management v. Construction Management, LLC; et al , a 13-page opinion, the issue was whether the company's water supply system, under which each individual apartment building is supplied by a separate well, met the 327 IAC 8-2-1(60)* definition of a "public water supply." According to the trial court:

the Complex has twelve wells serving twelve buildings and that none of the wells have at least fifteen service connections and none of the buildings have at least twenty-five people. In other words, the trial court considered each building and well separately as if the buildings were not part of a phase of an apartment complex.
IDEM initially sought to treat the Complex as maintaining one public water system. According to the opinion, it now treats Hilltop Farms I and II as maintaining two public water systems in response to a request from Hilltop Farms I and II.

Judge Vaidik writes beginning at page 9:

IDEM’s interpretation of 327 I.A.C. 8-2-1(60) is that six wells unconnected to one another but each serving separate buildings of a phase of the Complex together constitute a public water system. IDEM’s interpretation of 327 I.A.C. 8-2-1(60) hinges on the meaning of “system,” a term undefined in the statute. In its brief, IDEM defines “system” as the “[o]rderly combination or arrangement, as of particulars, parts, or elements into a whole; especially such combination according to some rational principle. * * *

IDEM’s definition of “system,” as it applies to 327 I.A.C. 8-2-1(60), is reasonable. Moreover, Webster’s Third New International Dictionary defines “system” as “a group of devices or artificial objects forming a network or used for a common purpose.” Webster’s Third New International Dictionary 2322 (1993). Although this definition recognizes some systems as having a connection between individual objects, its second use of the disjunctive “or” clearly indicates that, when used for a common purpose, a connection between objects is not necessary. Under both Black’s and Webster’s definitions, the wells at Hilltop Farms I and II need not be connected to be considered “systems.” IDEM’s interpretation of 327 I.A.C. 8-2-1(60) is reasonable because it applies the common and ordinary meaning of “system.” * * *

The trial court concluded in its decision on IDEM’s motion to reconsider that the only ascertainable standard in 327 I.A.C. 8-2-1(60) is whether there are at least fifteen service connections or at least twenty-five people served daily more than sixty days a year. It stated that IDEM “appears to have . . . expanded [the definition of a public water system] to include some measure of ownership, or operation or proximity, without the usual process of notification and adoption as part of the regulatory scheme.” Accordingly, the trial court ruled that IDEM provided no fair warning of the “additional standards” of ownership, operation, and proximity and therefore could not adjudicate the statuses of Hilltop Farms I and II as public water systems using those standards.

Although IDEM argues that ownership, operation, and proximity are standards included within the language of 327 I.A.C. 8-2-1(60), we decline to go so far and find only that the language of 327 I.A.C. 8-2-1(60) provides all the guidance necessary to allow CMA and Hilltop Farms I and II to determine that Hilltop Farms I and II constitute public water systems. Hilltop Farms I and II each have six wells providing water to six apartment buildings. No party has refuted that the six wells of Hilltop Farms I and the six wells of Hilltop Farms II each serve at least twenty-five individuals. These wells provide the public with water for human consumption through conveyances and regularly serve at least twenty-five individuals daily at least sixty days of the year. * * *

We will not allow a developer to thwart the purpose of the SDWA simply by drilling unconnected wells. Reversed.

______________
*ILB
- The opinion cites "327 I.A.C. 8-2-1(60)" but not any specific version of that provision. IAC 327 IAC 8-2-1 has been modified a number of times. Moreover, some might ask what is the source of the "rule" the Court is citing, as there is no printed version of the rule.

In The Adoption of unborn child B.W.; Wilfrido Garcia v. Davie Heine Bos and Janea Herbst Bos , a 13-page opinion, CJ Baker writes:

Appellant-petitioner Wilfrido Garcia appeals the trial court’s refusal to set aside its grant of adoption regarding his minor child, T.B., in favor of appellees-respondents David Heine Bos and Janae Herbst Bos (collectively, the “Boses”). Specifically, Garcia argues that he contested the adoption in a timely manner and the facts and circumstances demonstrate that the trial court abused its discretion in concluding that he impliedly consented to the adoption. Concluding that Garcia failed to follow the proper statutory procedures in contesting the adoption, we affirm the judgment of the trial court.
In Safe Auto Ins. Co. v. American Family Mutual Ins. Co. , a 13-page opinion, CJ Baker writes:
Appellant-third-party-defendant Safe Auto Insurance Company (Safe Auto) appeals the trial court’s orders denying Safe Auto’s motion for summary judgment against appellee-third-party-plaintiff American Family Mutual Insurance Company (American Family) and granting summary judgment in American Family’s favor. Safe Auto raises the following arguments: (1) the trial court erroneously struck an affidavit that had been designated to support Safe Auto’s positions on the cross summary judgment motions; (2) the trial court erroneously concluded as a matter of law that Safe Auto waived all coverage defenses aside from non-cooperation because it sent a letter to its insured explaining that no coverage would be offered for the vehicle accident in question because of the insured’s failure to cooperate; and (3) the trial court erroneously found as a matter of law that coverage exists. Finding, among other things, that Safe Auto did not waive its coverage defenses and that coverage does not exist as a matter of law, we reverse and remand with instructions to enter summary judgment in Safe Auto’s favor.
NFP civil opinions today (2):

Ralph D. Millsaps, M.D. and Julio A. Morera, M.D. v. Ohio Valley Heartcare, Inc. (NFP) - "Appellants-defendants Ralph D. Millsaps, M.D., and Julio A. Morera, M.D. (collectively, the appellants), appeal the trial court’s order entering summary judgment in favor of appellee-plaintiff Ohio Valley Heartcare, Inc. (OVHC), on OVHC’s complaint against the appellants for breach of contract. The appellants argue, among other things, that the trial court erroneously enforced a contract against them to which they were not a party.
"Finding that the trial court properly concluded that the appellants are bound to the terms of a contract that they executed but erroneously calculated the amount that they owe pursuant to a different contract to which they are not a party, and finding that this court’s determination in a prior appeal of the same parties may affect the amount owed by the appellants to OVHC, we affirm in part, reverse in part, and remand with instructions contained herein."

Chris McGehee v. Travis and Tamara Elliott (NFP) - "In sum, the trial court calculated the Elliotts’ damages pursuant to our instructions upon remand. Thus, we affirm the judgment of the trial court."

NFP criminal opinions today (5):

Eric Anthony v. State of Indiana (NFP)

Johnnie D. Perry v. State of Indiana (NFP)

Justin Brooks v. State of Indiana (NFP)

John Rolston v. State of Indiana (NFP)

Derek Coleman v. State of Indiana (NFP)

Posted by Marcia Oddi on July 18, 2008 12:22 PM
Posted to Ind. App.Ct. Decisions