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Tuesday, June 16, 2009

Ind. Decisions - Court of Appeals issues 7 today (and 7 NFP)

For publication opinions today (7):

In Highland Springs South Homeowners Association, Inc. v. Vanessa Reinstatler, a 14-page opinion, Judge Robb writes:

Highland Springs South Homeowners Association (“HOA”) filed a complaint for injunctive relief against Vanessa Reinstatler, seeking to keep her from building an addition to her home in the Highland Springs South subdivision. HOA appeals the trial court's order dismissing its complaint with prejudice as premature. HOA also appeals the trial court's subsequent denial of its motion to amend to conform to the evidence. HOA raises several issues, of which we find the following dispositive: whether the trial court properly granted summary judgment to Reinstatler and dismissed HOA's complaint. We also address HOA's contention that the trial court erred in denying its motion to amend its complaint to conform to the evidence. Concluding that the complaint is not premature and should not have been dismissed and that the trial court abused its discretion in denying HOA's motion to amend, we reverse and remand to the trial court for further proceedings. * * *

HOA's complaint was not premature, as there is the present existence of an actual threat that Reinstatler will begin construction of a room addition in violation of the restrictive covenants. HOA's motion to amend its complaint to conform to the evidence should have been granted, as the evidence supports the amendment and Reinstatler will not be prejudiced thereby. We therefore reverse the trial court's dismissal of HOA's complaint and remand to the trial court to grant HOA's motion to amend and to proceed to the merits of HOA's complaint for injunctive relief.

In Gangloff Industries, Inc. v. Generic Financing and Leasing Corp., a 13-page opinion, Judge Robb writes:
Gangloff Industries, Inc. appeals the trial court's judgment on Generic Financing and Leasing Corp.'s complaint for immediate possession and damages filed after Gangloff took possession of a certain truck of which Generic claimed ownership. Gangloff raises six issues for our review, which we consolidate and restate as two: 1) whether the agreement between Generic and Robert Bougher was a lease or a security interest in the truck, and 2) if it was a security interest, whether the possessory lien Gangloff asserted took priority. Concluding that the agreement is a security interest and that Gangloff's possessory lien had priority, we reverse and remand.
In Saundra Smithson and Clyde Smithson v. Howard Regional Health System, an 8-page opinion, Judge Kirsch writes:
Saundra Smithson (“Saundra”) and Clyde Smithson (“Clyde”) (collectively “the Smithsons”) appeal from the trial court’s order granting summary judgment in favor of Howard Regional Health System (“Howard Regional”) in the Smithsons’ premises liability case based on negligence against Howard Regional after Saundra slipped and fell on black ice in the hospital parking lot. Of the many issues presented for our review, the following issue is dispositive: whether the trial court erred by granting summary judgment in favor of Howard Regional after finding that the Smithsons had failed to comply with the notice provisions of the Indiana Tort Claims Act (“the Act”). We reverse and remand for further proceedings. * * *

Howard Regional contends that the trial court’s order granting summary judgment in its favor was proper based on the Smithsons’ failure to comply with the notice requirements of the Act. The Smithsons argue that the trial court erred by granting summary judgment because the purposes of the notice requirements under the Act were fulfilled. In other words, Howard Regional, a governmental entity, was provided with the opportunity to investigate an incident for the purposes of making liability determinations and preparing a defense. The Smithsons also claim that Howard Regional is estopped from arguing that it is a governmental entity because of its failure to identify itself as a county hospital. However, assuming that Howard Regional is a county hospital, the Smithsons argue that they have substantially complied with the notice requirements of the Act. * * *

Here, Howard Regional knew that Saundra had fallen in the parking lot, that she had sustained personal injuries from that fall, and the nature and extent of those injuries. Additionally, Howard Regional admitted and treated Saundra for those injuries, and was aware of the Smithsons’ phone number and address. * * * Further, a Howard Regional social worker prepared a report in which she noted that Clyde “states that he expects [Howard Regional] to cover the bills associated with [Saundra’s] care [secondary] to [her] fall in the parking lot. [Howard Regional] has not agreed to accept financial responsibility.” Id. at 133. On January 3, 2006, within 180 days of Saundra’s fall, the Smithsons’ attorney sent a letter of representation to Howard Regional seeking copies of Saundra’s medical records arising from her fall. Id. at 159. On the same date, the attorney sent a letter to Howard Regional’s insurance carrier * * * Consequently, assuming that Howard Regional is a governmental entity, the notice requirements of the Act have been substantially complied with in the present case. Furthermore, notice to Howard Regional was sufficient notice to the government. The trial court therefore erred by granting summary judgment in favor of Howard Regional on the issue of compliance with the notice provisions of the Act. * * *

Because we have found that the Smithsons’ have substantially complied with the notice provisions of the Act, we remand this matter to the trial court for a determination of the remainder of the issues raised by the parties in their respective motions for summary judgment. We reverse the trial court’s entry of summary judgment in favor of Howard Regional on the issue of compliance with the notice provisions of the Act and remand for further proceedings consistent with this opinion.

In Illinois Bulk Carrier, et al. v. Robert W. Jackson, et al. , a 28-page opinion, Judge Crone writes:
Illinois Bulk Carrier, Inc. (“IBC”), and Illiana Disposal Partnership, doing business as Allied Waste Services of Northwest Indiana (“Allied Waste”) (collectively “Appellants”), bring this interlocutory appeal of the denial of their summary judgment motions on the personal injury complaint filed against them by Robert W. Jackson and Daniel Jackson, minors, by their next friends Robert D. Jackson and Margie Jackson; Suzanna R. Postma and Jolene Postma, minors, by their next friends Jeff Postma and Tina Postma; Jeff Postma; Tina Postma (collectively “Appellees”); and Kirk Shule. We reverse.

Issues: I. Whether Allied Waste and IBC have demonstrated that as a matter of law neither is liable for the negligence of Wireman Trucking & Excavating, Inc. (“Wireman”), and its employee, Allan Irvine, under the Federal Motor Carrier Safety Regulations; and II. Whether Allied Waste and IBC have demonstrated that as a matter of law neither is liable for the negligence of Wireman and its employee, Irvine, under Indiana common law. * * *

BRADFORD, J., concurs.
BROWN, J., concurs in part, dissents in part with separate opinion.

In U. S. Bank, N.A. v. Integrity Land Title Corp. - "We hold that the trial court abused its discretion in denying U.S. Bank’s motion to correct error and motion for relief from judgment as to U.S. Bank’s contract claim against Integrity but did not abuse its discretion in denying the motions as to U.S. Bank’s tort claim. Because the stricken material at issue is substantially similar to material designated on summary judgment, we decline to reach the issue of whether the trial court abused its discretion in granting Integrity’s motion to strike. Accordingly, we affirm in part, reverse in part, and remand for further proceedings. "

State of Indiana v. Robin Montgomery - "We therefore grant the petition for rehearing and affirm our earlier decision remanding this case to the trial court."

Robbie Lynn Flickner v. State of Indiana - "After due consideration of the trial court's decision, we cannot say that the six-year sentence with two and one-half years suspended to probation imposed by the trial court is inappropriate in light of the nature of the offense and the character of the offender. For the foregoing reasons, we affirm Flickner's sentence for nonsupport of a dependent child as a class C felony."

NFP civil opinions today (1):

Estate of Theresa G. Cappelleti v. George F. and Palma M. Petriella (NFP)

NFP criminal opinions today (5):

Derrick Whitson v. State of Indiana (NFP)

Anthony J. Loveday v. State of Indiana (NFP)

Robert Dupree White v. State of Indiana (NFP)

Donald Tyrone Shell v. State of Indiana (NFP)

Eugene Cardwell v. State of Indiana (NFP)

Ebony Bell v. State of Indiana (NFP)

Posted by Marcia Oddi on June 16, 2009 10:20 AM
Posted to Ind. App.Ct. Decisions