The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 20 NFP)

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Thursday, March 19, 2009

Ind. Decisions - Court of Appeals issues 5 today (and 20 NFP)

For publication opinions today (5):

In In the Matter of N.E.; N.L. v. Marion Co. Dept. of Child Svcs. and Child Advocates, Inc. , a 24-page, 2-1 opinion, Judge Riley writes:

Normally, a juvenile court would determine that a child is either a CHINS or is not a CHINS when presented with a CHINS petition. However, before the juvenile court, Father articulated the argument that although N.E. was a CHINS with respect to Mother, she was not a CHINS with respect to him. This is an interesting perspective which we feel deserves further consideration. * * *

Without allegations from the DCS alleging that Father has been negligent, deficient, or worse in his duties as a parent, the trial court's findings with respect to Father should be directed solely at his willingness and ability to appropriately parent N.E. This the trial court has not yet done. * * *

Once a non-custodial parent demonstrates that he or she is willing and able to parent to the child alleged to be a CHINS, due process requires that the DCS present allegations directed at that parent, which, if proved, would meet the requirements for a CHINS determination under Indiana Code chapter 31-34-1 if the DCS thinks it is appropriate for the court to intervene in that parent child relationship. This would require an amendment of the existing petition or the filing of a new petition. Thereafter, the DCS must prove those allegations by a preponderance of the evidence and the trial court must make specific findings based on the record concluding that the child is a CHINS.

Based on the foregoing, we conclude that the DCS has not alleged N.E. to be a CHINS with respect to Father. Therefore, we remand for the juvenile court to determine whether Father is willing and able to appropriately parent N.E. since N.E. is a CHINS with respect to mother. Reversed and remanded with instructions.

DARDEN, J., concurs.
VAIDIK, J., dissents with separate opinion. [which begins, at p. 17 of 24] I respectfully disagree with the majority's conclusion that N.E. is a CHINS as to Mother only. Rather, I believe that a child is either a CHINS or is not a CHINS and that the DCS has met its burden of proving that N.E. is a CHINS. However, because I believe that the juvenile court's dispositional order falls short of the statutory requirements and therefore we do not know the court's reason for its disposition, I would remand this case for a new dispositional order in accordance with Indiana Code § 31-34-19-10. Because the majority is remanding for a different purpose, I dissent.

As an initial matter, I believe that a child is either a CHINS or is not a CHINS because a CHINS determination regards the status of the child. For this reason, I believe that the act of one parent can be enough for a child to be adjudicated a CHINS.

In Gloria A. Murray, et al v. City of Lawrenceburg, et al, a 28-page, 2-1 opinion, Judge Mathias writes:

Gloria Murray et al. (“the Plaintiffs”) brought suit against the City of Lawrence (“the City”), the Lawrenceburg Conservancy District (“the Conservancy District”), and Indiana Gaming Company, L.P. (“Indiana Gaming”) (collectively “the Defendants”), claiming ownership of a certain portion of land being used by the Defendants. The Defendants filed a motion for a judgment on the pleadings, which the trial court denied. The trial court then denied the Plaintiffs' demand for a jury trial. The Plaintiffs now bring this interlocutory appeal and claim that the trial court erred in denying their demand for a jury trial. The Defendants cross-appeal and claim that the trial court erred in denying their motion for judgment on the pleadings. * * *

Conclusion. The Defendants' cross-appeal is properly before us, as our earlier decision to decline to accept interlocutory jurisdiction is not final, and we now, under these limited facts and circumstances, choose to reconsider our earlier decision to decline jurisdiction over the Defendants' appeal from the trial court's certified interlocutory order. Considering the merits of the Defendants' cross-appeal, we conclude that the Plaintiffs' were not required to bring a claim for inverse condemnation, because inverse condemnation is not an exclusive remedy and because ownership of the Disputed Property has not yet been determined. Therefore, the trial court did not err in denying the Defendants' motion for judgment on the pleadings. Lastly, the essential features of the Plaintiffs' lawsuit were not equitable, and the entire case is therefore not drawn into equity. On remand, as stated in footnote 8, supra, the trial court should resolve the timeliness of the Plaintiffs' claims; sever the timely-filed distinct, legal claims; and grant the Plaintiffs' demand for a jury trial as to these claims. The judgment of the trial court is affirmed in part, reversed in part, and the cause is remanded for proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

BROWN, J., concurs.
BAKER, C.J., dissents with opinion [which begins, on p. 25] I respectfully dissent. At first glance, the majority's analysis, which hinges on the identity of the property owner, is compelling. Upon taking a closer look, however, I must disagree. Of course “the Defendants' argument . . . assumes that the Plaintiffs own the real estate at issue”—that is what the complaint alleged. Slip op. p. 14 (emphasis in original). The Plaintiffs crafted their lawsuit around a central theory—that they are the rightful owners of the property. I believe that it is the nature of the complaint that frames the case, not the nature of the response. Thus, that the Defendants claim in their answer that they also own the property does not change the fact that all of the Plaintiffs' theories are premised on the opposite contention. I think that the result reached by the majority will effectively preclude most, if not all, inverse condemnation actions in the future, and I cannot countenance such a result.

In Jennifer Hovey v. Jimmy Hovey , an 11-page opinion, Judge Riley writes:

[Issue] Whether the trial court properly amended Father’s child support arrearage when no pleading was filed, no notice to Mother was given, and no evidentiary hearing was held. * * *

In light of these procedural irregularities—the lack of notice, no evidentiary hearing, and admission of evidence after the Order is entered—Mother requests us to declare the trial court’s Orders of March 8, 2006 and July 24, 2006 void and to strike them. As such, Mother implicitly invokes the void judgment provision of Indiana Trial Rule 60(B)(6).

The distinction between a void and voidable judgment is no mere semantic quibble. * * * Here, no notice was given of the alleged evidentiary hearing. We have previously held that a judgment is without legal efficacy for want of due process if a party was not given notice. Id. at 478-79 (stating that T.R. 41(E) requires an adversarial hearing prior to dismissal necessitating notice and an opportunity to be heard). Therefore, we reverse the trial court’s Order On Proceedings Of April 30, 2008, vacate the trial court’s Orders of March 8, 2006 and July 24, 2006, and remand to the trial court with instructions to hold an evidentiary hearing on Father’s claim that his child support arrearage was wrongly calculated.

Conclusion. Based on the foregoing, we conclude that due to trial court’s procedural irregularities, the trial court’s Order of March 8, 2006 and July 24, 2006 are void and vacated. We remand to the trial court with instructions to conduct an evidentiary hearing on Father’s child support arrearage. We reverse, vacate, and remand with instructions.

In Gulf Stream Coach, Inc. v. Joseph Cronin and Dawn Cronin, an 8-page opinion, Judge Riley writes:

In two recent cases, our supreme court has urged an adherence to the spirit and intent of the preferred venue rules. See Chamness, 879 N.E.2d at 558; R & D Transport, Inc. v. A.H., 859 N.E.2d 332, 336-37 (Ind. 2006). A holding that sanctioned the sort of hijinks described above would no doubt be contrary to that spirit and intent. As such, we hold that, when a party moves a chattel to a county, whether from out-of- state or from another Indiana county, solely for purposes of litigation, that county does not become the county where the chattel is “regularly located and kept” under Rule 75(A)(2) and therefore is not a preferred venue under Rule 75.

We understand the position the Cronins are in here. They have no connection to Indiana, yet they were required to bring suit here by the terms of their warranties. They had to pick a county in which to file suit, and they did that. And they did so in a county, Madison, with proper venue. See Chamness, 879 N.E.2d at 556 (“any case may be venued in any court in the state”). But just because a county would be a proper venue does not mean that it is a preferred venue. The right of a plaintiff to file suit in any county in the state is subject to the right of an objecting party to request that the case be transferred to a preferred venue listed in Rule 75(A). Id. Unfortunately for the Cronins and their attorney, Gulf Stream made such a request.

Conclusion. Based on the foregoing, we conclude that the trial court erred by denying Gulf Stream’s motion to transfer venue, and we remand this cause to the trial court with instructions to transfer venue to Elkhart County, pursuant to Indiana Trial Rule 75(A)(4). Reversed and remanded with instructions.

In Atul Kumar v. Bay Bridge, LLC, a 7-page opinion, Judge Mathias writes:

Bay Bridge LLC (“Bay Bridge”) filed a complaint in Lake Superior Court to quiet title to a parcel of real estate commonly known as 149 th and Colfax, Cedar Lake, Indiana (“the real estate”) and named Atul Kumar (“Kumar”) as a defendant. Kumar had purchased the real estate at a tax sale but failed to record his deed. The trial court granted Bay Bridge’s motion for summary judgment. Kumar appeals and raises several issues. However, we address only the following dispositive issue: whether Bay Bridge was a bona fide purchaser of the real estate at issue. * * *

From our review of the record before us, we conclude that Bay Bridge designated evidence establishing that it was a bona fide purchaser for value, and Kumar failed to designate any evidence that would create a genuine issue of material fact on this issue. Therefore, the trial court properly granted Bay Bridge’s motion for summary judgment on its complaint to quiet title. Affirmed.

NFP civil opinions today (4):

Terri McGuire v. Tami Sontag (NFP)

Madison Co. Baord of Commissioners and Madison Co. Auditor v. Town of Ingalls (NFP) - "Madison County contends that there are valid policy reasons which justify a conclusion that it has standing to challenge the annexations. Further, Madison County argues that it is not seeking to remonstrate against the ordinances, but rather it is seeking to “assert its statutory duty to carry out its taxing duty . . . its duty to maintain county roads . . . and zoning schemes.” However, the sole means for challenging an annexation is remonstrance. City of Hobart, 596 N.E.2d at 1375. And, Madison County does not satisfy any of the requirements for standing to remonstrate against the acts of annexation. See I.C. §§ 36-4-3-11, 15.5, 16, and 17. As such, Madison County must work with the Town of Ingalls and affected property owners to work out an amiable solution for its problems, or seek a solution from our legislature that may or may not involve the crafting of a method for recourse to the courts. We conclude, Madison County does not have standing to seek our intervention in the Town of Ingalls' acts of annexation, nor do we have the authority to provide the relief which Madison County requests.

"Conclusion. Based on the foregoing, we conclude that the trial court did not err when it granted summary judgment to the Town of Ingalls on Madison County's claims."

In Re: the Matter of the Paternity of Minor Child, M.A., by Next Friend, T.R. v. C.A. (NFP)

Randall and Linda West v. Theodore (Buck) and Catherine (Cathy) Retmier (NFP) - "In sum, the trial court’s conclusion that the Retmiers made a reasonable and good faith effort to obtain financing is not clearly erroneous. Because the Retmiers filled this obligation, they had legal cause to not close on the transaction and were entitled to the return of their earnest money. Finally, the trial court’s award of attorney’s fees to the Retmiers was not erroneous as such relief was agreed to by the contracting parties and enforcing this provision does not violate public policy. Affirmed. "

NFP criminal opinions today (16):

In the Matter of O.C. v. State of Indiana (NFP)

Devlyn R. Bowen v. State of Indiana (NFP)

Josefina Hernandez-Romulado v. State of Indiana (NFP)

Robert Duncan v. State of Indiana (NFP)

Richard L. Newman v. State of Indiana (NFP)

Harry A. Oberlin v. State of Indiana (NFP)

Edward Murrell v. State of Indiana (NFP)

Kurt C. Hobbs v. State of Indiana (NFP)

Eric Proffitt v. State of Indiana (NFP)

Mel A. Trowbridge v. State of Indiana (NFP)

Larry Latham v. State of Indiana (NFP)