The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 21 NFP)

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Friday, August 29, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 21 NFP)

For publication opinions today (4):

In Countrymark Copperative, Inc.; et al. v. Joseph Hammes, Trustee of Stephen Turner , a 19-page opinion, Judge Brown writes:

Countrymark Cooperative, Inc., (“Countrymark, Inc.”) and Countrymark Cooperative, LLP, (“Countrymark, LLP”) (collectively, “Countrymark”) appeal a judgment in favor of Joseph Hammes, Trustee of Stephen Turner, (“Turner”). Countrymark raises three issues, which we revise and restate as: I. Whether the trial court erred by denying Countrymark’s motion for summary judgment; II. Whether the trial court erred by granting Turner’s motion to amend his complaint to conform to the evidence; and III. Whether the trial court erred by denying Countrymark’s motion for judgment on the evidence pursuant to Ind. Trial Rule 50. We affirm. * * *

I II. The next issue is whether the trial court erred by denying Countrymark’s motion for judgment on the evidence pursuant to Ind. Trial Rule 50. * * *

Turner argues that Countrymark invited any error, and we agree. A party may not take advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct. Smith v. McLeod Distributing, Inc., 744 N.E.2d 459, 466 (Ind. Ct. App. 2000). Invited error is not subject to review by this court. Id. Countrymark, Inc., did not file an answer to Turner’s complaint, did not assert an affirmative defense that it was not the real party in interest, and did not file a motion to dismiss under Ind. Trial Rule 12(B)(6). In the remainder of the pleadings, Countrymark variously described itself as both Countrymark, Inc., and Countrymark, LLP. Additionally, although evidence was presented at the trial that Countrymark, LLP, owned the property in question, the insurance policy provided in discovery identified Countrymark, Inc., as the policyholder. Under these circumstances, we conclude that Countrymark invited any error, and we decline to find that the trial court erred by denying Countrymark, Inc.’s motion for judgment on the evidence. See, e.g., Smith, 744 N.E.2d at 465 (holding that equity required that Colonial Mat be held liable for the debt at issue in order to protect an innocent third party from unfairness because Colonial Mat and Colonial Industrial d/b/a Colonial Carpets were treated as if they were adjunct corporations, or mere alter egos or instrumentalities of each other that shared a common identity). For the foregoing reasons, we affirm the judgments against Countrymark, LLP, and Countrymark, Inc.

In Ace Bail Bonds, American Bail Bond Co., Bertholet Bail Bond, and Express Bail Bond v. Government Payment Service, Inc., an 8-page opinion, Judge Kirsch writes:

Ace Bail Bonds, American Bail Bond Company, Bertholet Bail Bond, and Express Bail Bond (collectively, the “Bail Agents”) appeal the trial court’s order: (1) granting the release of the Bail Agents’ $2,500 bond to Government Payment Service, Inc. (“GPS”); and (2) awarding GPS attorney fees in the amount of $88,564. On appeal, the Bail Agents raise the following restated issue: whether the trial court erred in awarding costs and attorney fees to GPS pursuant to Indiana Trial Rule 65(C) following the reversal of a permanent injunction against GPS. We vacate and remand. * * *

The Bail Agents contend that this court’s October 11, 2006 opinion, which denied GPS attorney fees, was binding on the trial court. As such, the Bail Agents argue that it was an abuse of discretion for the trial court to grant GPS the $2,500 bond and attorney fees. Citing to the “law of the case” doctrine, the Bail Agents argue that the issue of costs and attorney fees was previously decided against GPS. We disagree.

As a general rule, “the ‘law of the case’ doctrine designates that an appellate court’s determination of a legal issue is binding on both the trial court and the Court of Appeals in any subsequent appeal given the same case and substantially the same facts.” Herrell v. Casey, 609 N.E.2d 1145, 1146 (Ind. Ct. App. 1993) (quoting Cha v. Warnick, 476 N.E.2d 109, 114 (Ind. 1985), cert. denied, 474 U.S. 920, (1985)). In the 2006 decision, our court determined that costs and attorney fees were not appropriate; however, that decision arose from GPS’s counterclaim for malicious prosecution and not a determination under Trial Rule 65(C). * * *

Under Trial Rule 65(C), “no right of action accrues upon an injunction bond until the court has finally decided that the plaintiff was not entitled to the injunction or until something occurs equivalent to such a decision.” Nat’l Sanitary Supply Co. v. Wright, 644 N.E.2d 903, 906 (Ind. Ct. App. 1994), trans. denied. In Palace Pharmacy, Inc. v. Gardner & Guidone, Inc., we held that a defendant is entitled to attorney fees for defending an injunction if he prevails at a later hearing or otherwise ultimately wins the case. 164 Ind. App. 513, 515, 329 N.E.2d 642, 644 (1975). Here, the wrongfulness of the injunction was not “finally or ultimately determined” until April 12, 2007, when the Clerk certified the 2006 decision. Consequently, GPS’s entitlement to attorneys fees and costs pursuant to Trial Rule 65(C) did not arise until that date. Pflederer v. Kesslerwood Lake Ass’n, Inc., 878 N.E.2d 510, 514 (Ind. Ct. App. 2007). The instant case regarding attorney fees and the counterclaim for malicious prosecution are not the same action. Therefore, the “law of the case” doctrine has no application here. * * *

Here, the Bail Agents’ temporary restraining order was only valid from March 27, 2003 through April 7, 2003. Thereafter, the TRO expired. The trial court did not enter a preliminary injunction, but instead, entered a permanent injunction on July 12, 2005, following a trial on the merits. The Bail Agents are liable to GPS only for the damages that occurred as the result on the wrongfully issued TRO. While we agree that the trial court was within its discretion to grant costs and attorney fees pursuant to Trial Rule 65(C), we reverse and remand for the trial court to determine which fees GPS incurred in connection with its defense of the TRO. Vacated and remanded.

In Janella Matthew v. State of Indiana, a 12-page, 2-1 opinion, Judge Robb writes:

We conclude sufficient evidence exists to support Matthew’s conviction. We remand to allow the trial court to correct the abstract of judgment to indicate that it entered judgment as a Class A misdemeanor instead of as a Class D felony. Affirmed and remanded.

RILEY, J. concurs.
BAKER, C.J. dissents with opinion: [which begins] Although I very much agree in principle with the result reached by the majority, I believe that we are compelled by Willis v. State to reverse Matthew’s conviction. 888 N.E.2d 177 (Ind. 2008). [ILB note: Willis v. State is the 4-1 Supreme Court opinion on corporal punishment of children - see list of ILB entries.] * * *

Considering the propriety of the force used by Matthew, the record reveals that the children had been fighting all day and that throughout the day, Matthew had warned J.M. to stop hitting her brother and sister. Thus, as in Willis, Matthew had employed progressive forms of discipline. As for the nature of the punishment inflicted by Matthew, I observe that J.M. received approximately ten blows from Matthew’s hand and a belt. I see no reason to diverge from our Supreme Court’s conclusion in Willis that, in response to a serious offense, there is “nothing particularly degrading about this manner of punishment. Nor, in context, is it readily apparent that the punishment was disproportionate to the offense.” Id. And as in Willis, Matthew’s discipline left bruises and welts, but “[i]n essence it appears from the record that the bruises [and welts] were neither serious nor permanent,” militating “against a conclusion that the punishment was unreasonable.” Id. at 184. Under these circumstances, I do not see how we can avoid the Willis court’s conclusion that Matthew’s actions herein fall within the parental discipline privilege.

In Lloyd N. Huff, et al. v. Maxine Huff, et al. , a 13-page opinion, Judge Brown writes:

Lloyd N. Huff, as trustee of the Elihu W. Huff Trust, Lloyd N. Huff, as beneficiary of the Elihu W. Huff Trust, and Edith Ham, now deceased, by her duly authorized attorney-in-fact, John Ham, as beneficiary of the Elihu W. Huff Trust (collectively “Beneficiaries”), appeal the trial court’s grant of summary judgment to Maxine Huff and the Estate of Wayne Huff (“Wayne’s Estate”). The Beneficiaries raise three issues, which we consolidate and restate as whether the trial court erred by granting in part the motion for summary judgment filed by Maxine and Wayne’s Estate. On cross appeal, Maxine and Wayne’s Estate raise two issues, which we consolidate and restate as whether the Beneficiaries’ remaining claims against Wayne’s Estate are barred by the doctrines of laches and estoppel. We reverse and remand. * * *

We conclude that there remain questions of fact as to whether Wayne properly disclosed the material facts of the conveyance to the Beneficiaries in accordance with his duty as trustee and that, therefore, summary judgment on the expiration of the statute of limitations was inappropriate. * * *

The final issue raised by Maxine and Wayne’s Estate on cross appeal is whether the Beneficiaries’ breach of trust claim against Wayne’s Estate concerning Wayne’s failure to distribute the trust principal after Elihu’s death is barred by the doctrines of laches and estoppel. * * *

Here, Wayne never filed a final account, and the exception to the special pleading requirement for affirmative defenses for trustees does not apply. Accordingly, the failure of Maxine and Wayne’s Estate to specifically plead the affirmative defenses of laches and estoppel waived the defenses. * * *

For the foregoing reasons, we reverse the trial court’s grant in part of the motion for summary judgment filed by Maxine and Wayne’s Estate and remand for proceedings consistent with this opinion.

NFP civil opinions today (3):

Tram Development Group, Inc. v. Joseph and Florence Maginot (NFP) - "Tram appears to have performed its portion of the contract up until the point that it was no longer advantageous. Despite agreeing to purchase all fifty acres, Tram waited until the last minute to inform the Maginots that it was not willing to buy the last portion of the land, which just happens to be the portion that is not suitable for Tram’s purposes. Tram is essentially asking this Court to permit it to keep the best portions of the land, break its original agreement, and pay a nominal amount as compensation to the Maginots. We do not believe such a solution is equitable. Therefore, we conclude that the trial court did not abuse its discretion in ordering specific performance for the outstanding portion of the contract for real estate. Affirmed."

Tony Elliott v. Elayne Elliott (NFP) - "In sum, the trial court’s conclusions that Tony owed Elayne the principal sums of $2,891.04 in seized taxes and $28,065.11 for the Key Bank line of credit are not clearly erroneous. Further, the court did not abuse its discretion in finding Tony to be in indirect contempt of court. Thus, we affirm the trial court’s judgment in all respects."

JPMorgan Chase Bank, N.A, et al v. Rita E. Nicholson f/k/a Rita Campbell, et al (NFP) - "The trial court erred in granting summary judgment to EverHome because there remains a genuine issue of material fact as to whether Chase Bank was required to release its mortgage lien on Nicholson’s property. Accordingly, the judgment of the trial court is reversed, and this case is remanded to the trial court for further proceedings consistent with this opinion. Reversed and remanded."

NFP criminal opinions today (14):

Kail Fortson v. State of Indiana (NFP)

Elliot Carter v. State of Indiana (NFP)

Curtis N. Cooper v. State of Indiana (NFP)

Michael Myers v. State of Indiana (NFP)

T.H. v. State of Indiana (NFP)

John Prosser v. State of Indiana (NFP)

Anthony E. Miller v. State of Indiana (NFP)

Kevin Ingram v. State of Indiana (NFP)

Charles Wagner v. State of Indiana (NFP)

William D. Hammond v. State of Indiana (NFP)

Stephen Clark v. State of Indiana (NFP)