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Thursday, October 16, 2008

Ind. Decisions - Court of Appeals issues 12 today (and 4 NFP)

For publication opinions today (4):

In John D. and Stacy R. Hayes v. Robert Lee Chapman, Jr. , a 16-page, 2-1 opinion, Chief Judge Baker writes:

Appellants-defendants John D. Hayes and Stacy R. Hayes appeal the trial court’s order denying their counterclaim against appellee-plaintiff Robert Lee Chapman, Jr., and foreclosing Chapman’s mechanic’s lien on construction he performed on the Hayeses’ residence. The Hayeses argue that the trial court erroneously concluded that Chapman did not violate the Indiana Home Improvement Contract Act1 (HICA), that the mechanic’s lien was invalid because it contained mathematical errors when filed, and that the trial court erroneously awarded prejudgment interest to the Hayeses on the lien. Finding no error, we affirm. * * *

CRONE, J., concurs.
KIRSCH, J., concur and dissent with opinion. [which begins] I concur with the decision of my colleagues to affirm the decision of the trial court on the plaintiff’s complaint, but I respectfully dissent from their decision affirming the trial court’s order denying relief on the defendants’ counterclaim.

In Jesus Brown v. State of Indiana , a 9-page opinion, Judge Brown writes:
Jesus Brown appeals his conviction for escape as a class D felony. Brown raises one issue, which we restate as whether the trial court committed fundamental error in failing to instruct the jury about the offense of unauthorized absence from home detention. We affirm.
In Kory S. Foddrill v. Constance Crane , a 15-page opinion, Judge Bradford writes:
Appellant/Defendant Kory Foddrill appeals from a jury award of $194,100.00 in favor of Appellee/Plaintiff Constance Crane following trial on her negligence claim. Foddrill‟s arguments, partially restated, are that Crane produced insufficient evidence to sustain a negligence finding, the trial court abused its discretion in instructing the jury, and the jury award was excessive and not supported by the evidence. We affirm.
In Citizens Action Coalition of Indiana, Inc., et al. v. PSI Energy, Inc., et al. , a 25-page opinion, Judge Brown writes:
Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Valley Watch, Inc., and Sierra Club, Inc., (collectively, “Appellants”) appeal the Indiana Utility Regulatory Commission’s grant of a petition filed by PSI Energy, Inc., d/b/a Duke Energy Indiana, Inc. (“Duke”) for the construction of a powerplant. Appellants raise four issues, which we revise and restate as:

I. Whether the Commission erred by denying Appellants’ request to reopen the record;
II. Whether the applicable statutes allow Duke to recover costs while the facility is under construction;
III. Whether the Commission adequately considered all known costs and estimates of future costs of the plant; and
IV. Whether Ind. Code §§ 8-1-8.5, Ind. Code §§ 8-1-8.7, and Ind. Code §§ 8-1-8.8 violate the Commerce Clause because the statutes express a preference for Indiana coal.

We affirm.

NFP civil opinions today (2):

In Peter A. Wilson and Natalie M. Wilson v. Paul and Sara Danger (NFP), an 8-page opinion, Judge Brown writes:

Peter and Natalie Wilson appeal the small claims court’s judgment in favor of Paul and Sara Danger. The Wilsons raise one issue, which we revise and restate as whether the conclusion of the small claims court that the parties’ Proration Agreement was unenforceable is clearly erroneous. We affirm. * * *

Here, the parties agreed to a pro-rata division of the real property tax liability for 2006. At closing, the parties then signed a Proration Agreement, the significance of which was not explained to the Dangers, stating that the Dangers would be solely responsible for any real estate taxes billed after the date of the closing. The Wilsons argue that the consideration for this agreement “is the exchange of promises to allocate liability for taxes based on the date the taxes were billed.” However, in contrast to DiMizio, under the modified agreement, the Wilsons would benefit by reducing their tax liability but would incur no detriment. The Dangers, on the other hand, while facing a greater tax liability, would receive no benefit. Accordingly, we conclude that there was no bargained-for-exchange in support of the modification, and, thus, we cannot say that the small claims court’s finding that the tax proration agreement was unenforceable for lack of consideration was clearly erroneous.

[ILB Note] Although the opinion indicates "BAKER, C. J. concurs in result with separate opinion," the attached concurring opinion of CJ Baker is to another case.]

John M. Nwannunu v. Joshua Wayne Gidley and Mary Gidley (NFP) - "Based upon this testimony, we conclude that J.G. presented evidence from which a jury could have reasonably inferred that Dr. Nwannunu’s actions proximately caused J.G.’s injuries." Affirmed.

NFP criminal opinions today (10):

Jayme Owens v. State of Indiana (NFP)

Brian Gary v. State of Indiana (NFP)

Michael Eward v. State of Indiana (NFP)

Pedro Deleon v. State of Indiana (NFP)

Diana Lynn Groves v. State of Indiana (NFP)

Jonathan L. Rhodes v. State of Indiana (NFP)

Kevin Lebar Stone v. State of Indiana (NFP)

Thomas Sneed v. State of Indiana (NFP)

Bruce L. White, Jr. v. State of Indiana (NFP)

Brian Handlon v. State of Indiana (NFP)

Posted by Marcia Oddi on October 16, 2008 01:10 PM
Posted to Ind. App.Ct. Decisions