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Monday, January 12, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 2 NFP)

For publication opinions today (4):

In Donald J. Lindsey and Jacquelyn Lindsey v. Johannes DeGroot, et al, a 22-page opinion in a case challenging Indiana's Right to Farm Act, Judge Bradford writes:

Appellants-Plaintiffs Donald J. Lindsey and Jacquelyn Lindsey (collectively, “the Lindseys”) appeal from the trial court's order granting summary judgment in favor of Johannes DeGroot, Egberdien DeGroot, and DeGroot Dairy, LLC (collectively, “DeGroot Dairy”). On appeal, the Lindseys contend that the trial court incorrectly interpreted and applied the Indiana Right to Farm Act to the facts of this case and that the trial court's award of summary judgment is erroneous because issues of material fact remain with regard to their criminal trespass, criminal mischief, and intentional infliction of emotional distress claims. Concluding that the trial court's award of summary judgment in favor of DeGroot Dairy was proper, we affirm. * * *

On December 9, 2003, the Lindseys filed suit against DeGroot Dairy seeking to enjoin the dairy from further operation and for compensation for nuisance, negligence, trespass, criminal mischief, and intentional infliction of emotional distress. DeGroot Dairy filed a motion for summary judgment on September 17, 2007. A hearing was held on DeGroot Dairy's motion on February 25, 2008. On April 24, 2008, the court issued an order granting summary judgment to DeGroot Dairy. In its summary judgment order, the trial court determined that the Indiana Right to Farm Act was constitutional and applied to the instant action, barring the Lindseys' nuisance claims. The trial court also determined that no genuine issues of material fact existed regarding the Lindseys' trespass, criminal mischief, and intentional infliction of emotional distress claims. This appeal follows. * * *

II. Constitutionality and Application of the Right to Farm Act [IC 32-30-6]

The Indiana Right to Farm Act (the “Act”) was adopted by the General Assembly in an attempt to limit the circumstances under which agricultural operations could become subject to nuisance suits. [IC 32-30-6-9] * * *

A. Whether the Indiana Right to Farm Act is Constitutional * * *

We note that like the Idaho and Texas courts, we have found nothing to suggest that Indiana has adopted the seemingly unique Iowa holding that the right to maintain a nuisance is an easement, and the Lindseys have failed to explain why we should. Therefore, we expressly decline the Lindseys' invitation to adopt Iowa's proposition that the right to maintain a nuisance contained in the Act creates an easement in favor of DeGroot Dairy. Having rejected the claim that the Act effectively grants an easement to DeGroot Dairy over the Lindseys' property, we turn our attention to the application of the Act to the instant matter.

B. Whether the Indiana Right to Farm Act Bars the Lindseys’ Nuisance Claim

The underlying basis of the Lindseys' nuisance claim against DeGroot Dairy is that the operation of DeGroot Dairy is a nuisance that interferes with the Lindseys' use and enjoyment of their property. * * *

Therefore, we conclude that the Lindseys' nuisance claim is barred by the Act unless they can establish that the alleged nuisance resulted from the negligent operation of DeGroot Dairy. C. Whether Application of the Right to Farm Act was Improper Because the Claimed Nuisance Resulted from the Negligent Operation of DeGroot Dairy.

C. Whether Application of the Right to Farm Act was Improper Because the Claimed Nuisance Resulted from the Negligent Operation of DeGroot Dairy

The Lindseys next contend that the application of the Act was improper because their claimed nuisance resulted from the negligent operation of DeGroot Dairy. The Lindseys' claim of negligence is based exclusively on DeGroot Dairy's alleged violations of IDEM's CFO regulations. * * *

Therefore, there is no issue of material fact as to whether the Indiana Right to Farm Act applies, and the trial court correctly awarded DeGroot Dairy summary judgment on the Lindseys' nuisance claim. * * *

In sum, having concluded that the Lindseys have failed to designate any evidence contrary to the trial court's determination that the Indiana Right to Farm Act applied to the instant matter and barred the Lindseys' nuisance claim against DeGroot Dairy, and that summary judgment was proper because no issue of material fact remained on the Lindseys' criminal trespass, criminal mischief, or intentional infliction of emotional distress claims, we affirm the summary judgment of the trial court.

In In the Termination of the Parent-Child Relationship of: J.H. - "Having concluded that neither A.C. nor Indiana Code section 31-32-9-1(d) operates to exempt ACDCS from required compliance with the Indiana Trial Rules regarding service of process, but having concluded that ACDCS nevertheless adequately complied with such rules to satisfy due process considerations, we reject Father's challenge to the trial court‟s termination of his parental rights to J.H. on the grounds that it did not have personal jurisdiction over him. The judgment of the juvenile court is affirmed."

In the Matter of T.K. - "T.K. appeals from his commitment to the Department of Correction (“DOC”) following the juvenile court’s adjudication that he committed child molesting, a Class B felony if committed by an adult. We affirm. "

Derrick Monroe v. State of Indiana - "Having concluded that the trial court did not err in considering certain hearsay
testimony and that there was sufficient evidence demonstrating Monroe’s constructive possession of a handgun, we affirm the trial court’s judgment revoking Monroe’s placement in home detention and changing his placement to the DOC."

NFP civil opinions today (1):

Bobbie L. Green v. Russell E. Green (NFP) - "Bobbie Green appeals the trial court‟s order in this dissolution proceeding awarding Russell Green custody of the couple‟s child, T.G.; requiring Bobbie to pay child support; and distributing property. On appeal, Bobbie raises three issues, which we restate as: (1) whether the trial erred when it granted primary physical custody of T.G. to Russell; (2) whether the trial court erred in its calculation of child support; and (3) whether the trial court erred in its distribution of property. Concluding the trial court committed no error, we affirm. "

NFP criminal opinions today (1):

Donald Doty v. State of Indiana (NFP)

Posted by Marcia Oddi on January 12, 2009 12:49 PM
Posted to Ind. App.Ct. Decisions