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Thursday, August 21, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

In Wesley H. Fueger v. CNH America LLC, et al. , a 6-page opinion on a petition for rehearing, Sr. Judge Barteau writes:

Case Corporation, Case IH, Case Equipment Corporation, Case LLC, CNH America LLC (collectively “Case”) bring this petition for rehearing, requesting that we reconsider our conclusion that the trial court erred by granting Case’s motion to strike the expert affidavit of Walter Yeager (“Yeager”). We reaffirm our opinion on that issue, but grant Case’s petition for rehearing solely for the purpose of more fully explaining our decision on the issue of summary judgment. * * *

It appears from the testimony available to the trial court at the summary judgment stage that there was a question of fact regarding whether the skid loader was state of the art. Accordingly, Case was not entitled to summary judgment, and the trial court erred.

In Steven Rudnick v. Northern Indiana Commuter Transportation District , a 9-page opinion, Judge May writes:
Steve Rudnick sued his employer, Northern Indiana Commuter Transportation District (“the District”), under the Federal Employers’ Liability Act (“FELA”). The trial court granted summary judgment for the District because Rudnick did not substantially comply with the notice requirement of the Indiana Tort Claims Act. We affirm. * * *

We find the following issues dispositive: (1) whether Rudnick was required to comply with the Tort Claims Act’s notice requirements, and (2) whether Rudnick substantially complied with the notice requirements. * * *

Rudnick addressed due process in his reply brief, but did not respond to the District’s waiver argument or cite any facts demonstrating the District had unequivocal notice of the issue. Rudnick has waived his due process argument. * * *

Rudnick urges a lenient approach to substantial compliance because the District is a state agency and it did not make claim forms available. Notice to state agencies is governed by Ind. Code § 34-13-3-6. * * * This provision requires state agencies to make claim forms available; however, they are not required to take affirmative action to hand out forms to employees who may have claims. Rudnick never sought a claim form; therefore, we decline to reverse on the ground the District did not make them available. Rudnick did not notify the District of his intention to sue, and summary judgment for the District was appropriate.

In State of Indiana v. Jeanette Serowiecki , a 16-page opinion complete with graphics, Judge Friedlander writes:
The State of Indiana appeals the trial court’s grant of summary judgment in favor of Jeanette Serowiecki, as Trustee under the provisions of the Louise Sikora Declaration of Trust dated July 30, 1984, (the Trustee) on the State’s complaint to quiet title to an 18.6-acre tract of land in Newton County. On appeal, the State presents three issues for our review: 1. Did the State acquire legal title to the disputed property based on the existence of a fence along a ditch and the long-time assumption that the ditch and fence represented the true boundary line? 2. Did the State acquire title to the disputed property through adverse possession? Did the State acquire title to the disputed property under the doctrine of title by acquiescence? We affirm. * * *

We therefore agree with the Trustee that the State waived the argument of title by acquiescence by failing to first present it to the trial court.

Having concluded that the State did not acquire legal title to the disputed property because of a mistake as to the boundary line or under the doctrine of adverse possession, we affirm the trial court’s grant of summary judgment in favor of the Trustee. Judgment affirmed.

ILB Note: I've pulled this portion out of the above opinion for special highlighting. It begins on p. 14 [emphasis added]:
As a third argument in support of its claim that the State acquired title to the disputed land, the State asks this court to consider the doctrine of title by acquiescence, a theory the State admits it did not present to the trial court. Generally, a party may not raise an issue on appeal that was not presented to the trial court, even in summary judgment proceedings.

In Huntington v. Riggs, 862 N.E.2d 1263 (Ind. Ct. App. 2007), trans. denied, this court applied the doctrine of title by acquiescence in a case involving a boundary line dispute between property owners who had treated a county road as the boundary line between their properties although the road did not coincide with the actual boundary-line. Huntington v. Riggs was decided by this court on March 21, 2007, twenty-six days prior to the State filing its motion for summary judgment in this case. The State, however, did not argue application of the doctrine of acquiescence to the trial court. In its reply brief, the State points to sparse case law on the subject of title by acquiescence, see Huntington v. Riggs, 862 N.E.2d 1263, and the timing of the Huntington v. Riggs decision as excusing its failure to argue application of the doctrine because such “would not [have] be[en] a likely word search on Westlaw.” Reply Brief at 7.

The State’s failure to argue application of the doctrine of title acquiescence to the trial court is not excused by the fact that a search on Westlaw would not have revealed the Huntington v. Riggs decision. As recognized by the Huntington court, the doctrine of title by acquiescence was “especially popular during the turn of the century” but “disappeared out of case law altogether in the sixties and seventies.” Huntington v. Riggs, 862 N.E.2d at 1267. Even so, it remains that the doctrine is not new to the legal world. The State could have argued its application notwithstanding unawareness of this court’s recent analysis of the doctrine in Huntington v. Riggs. Moreover, we note that the State failed to present this argument to the trial court during the summary judgment hearing, which was held nearly three months after the Huntington v. Riggs decision. We therefore agree with the Trustee that the State waived the argument of title by acquiescence by failing to first present it to the trial court.

In The Paternity of Brennan McGuire-Byers; Raymond S. Byers v. Brennan McGuire-Byers, Mary S. McGuire - "As a necessary party, Mary was a party to the paternity action. It was within the trial court’s discretion to award retroactive child support; however, Mary, not Brennan is the proper recipient of those payments. The trial court did not abuse its discretion in ordering Raymond to pay approximately one-half of the attorney fees incurred by the Appellees. We remand for the trial court to determine the proper recipient of the payments incurred after 2005 and to determine appellate attorney fees. We affirm in part, reverse in part, and remand."

NFP civil opinions today (3):

Kevin M. Gertiser v. Ann T. Gertiser (NFP) - "Kevin Gertiser (“Husband”) appeals the decree dissolving his marriage to Anne Gertiser (“Wife”). He asserts his motion to correct error in the original decree should not have been deemed denied even though more than thirty days passed between the date of the hearing and the court’s ruling; the trial court should not have ordered him to co-sign a mortgage Wife would obtain after the dissolution; and Wife was not entitled to incapacity maintenance. We affirm in part, reverse in part, and remand."

Nailah Alaka-Muhammad v. Review Board of the Indiana Dept. of Workforce (NFP) - "Nailah D. Alaka-Muhammad appeals the determination of the Review Board of the Indiana Department of Workforce Development (“Review Board”), which affirmed the decision of the Administrative Law Judge (“ALJ”) dismissing her appeal for lack of jurisdiction. Alaka-Muhammad presents two issues for review, namely: 1. Whether the Review Board abused its discretion when it refused to accept additional evidence. 2. Whether the Review Board erred when it affirmed the dismissal of her appeal for lack of jurisdiction. We affirm."

The Involuntary Term. of Parent-Child Rel. of Ma.H., My.H. and Veronica R. v. Marion Co. Dept. of Child Svcs., Child Advocates, Inc. (NFP) - "Veronica R. (“Mother”) appeals the involuntary termination of her parental rights to her children, Ma.H. and My.H. As the juvenile court did not abuse its discretion when it denied Mother’s motion to continue and admitted several of the State’s exhibits into evidence, and its judgment is supported by clear and convincing evidence, we affirm."

NFP criminal opinions today (7):

Jeremy J. Sutton v. State of Indiana (NFP)

Michael Hamilton v. State of Indiana (NFP)

Diana Saylor v. State of Indiana (NFP)

Paul Harris v. State of Indiana (NFP)

Kenneth E. Hatchett, II v. State of Indiana (NFP)

Herbert S. Foust v. State of Indiana (NFP)

Zachariah J. Blanton v. State of Indiana (NFP)

Posted by Marcia Oddi on August 21, 2008 11:33 AM
Posted to Ind. App.Ct. Decisions