The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

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Tuesday, June 23, 2009

Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

For publication opinions today (5):

In Kenneth E. Smith, Jr. and Cathy Smith, et al v. Gerhard King and Christine King, a 3-page opinion on rehearing, Judge Brown writes:

Jeffrey Harbrecht petitions for rehearing of this court's published opinion in Smith v. Harbrecht & King, 902 N.E.2d 878 (Ind. Ct. App. 2009), in which we affirmed the trial court's grant of summary judgment to Gerhard King and Christine King. On rehearing, Harbrecht raises two issues, which we restate as:

I. Whether this court erred by holding that Harbrecht waived the argument that King was performing work as a general contractor; and II. Whether a question of fact exists regarding King's duty to perform his work in a safe manner.

For the following reasons, we grant Harbrecht's petition for rehearing and clarify and affirm our prior opinion.

In Sheehan Construction Co., Inc., et al. v. Continental Casualty Co., et al. , a 16-page, 2-1 opinion, Judge May concludes:

The damage to the class members' homes was not “property damage” covered by the Continental and Indiana policies, and the trial court correctly granted summary judgment for the insurers. Sheehan's action against MJ for negligent failure to procure insurance was brought more than two years after Sheehan, in the exercise of ordinary diligence, could have discovered it might not have had the coverage it expected. Summary judgment for MJ was therefore correct. We affirm the trial court.
Affirmed.

RILEY, J., concurs.
BROWN, J., dissents with separate opinion [that begins] I respectfully dissent. I conclude that summary judgment is improper because there is a question of fact regarding whether the Class's and Sheehan's claims are for “property damage” caused by an “occurrence.”

In William Groome and Vicki Groome v. Donlin Corp., et al, a 13-page opinion, Judge Friedlander writes:

In this consolidated appeal, William and Vicki Groome appeal the trial court's order setting aside tax deeds for royalty interests from an oil and gas lease relating to parcels of real estate owned jointly and/or individually by Donlin Corp., Kevin Masterson, Anne Nestrick Trust, Beverly Masterson Family Trust, Don Masterson Family Trust, and John Werner (the Appellees). The Groomes present the following restated issues on appeal:

1. Did the trial court lack subject matter jurisdiction to rule upon the Appellees‟ complaints to set aside the tax deeds? 2. Did the trial court err in determining that the Appellees were persons entitled to notice pursuant to Ind. Code Ann. § 6-1.1-25-4.5 (West, PREMISE through 2008 2nd Regular Sess.)? 3. If the Appellees were entitled to notice, does the evidence support a finding that they were not properly given notice?

We affirm.

In In the Matter of the Visitation of C.L.H.; B.L.H. v. G.L.H. and B.J.H., a 16-page opinion, Judge Najam writes:

B.L.H. (“Mother”) appeals from the trial court's order awarding G.L.H. (“Grandfather”) and B.J.H. (“Grandmother”) (collectively “Grandparents”) visitation of Mother's son, C.L.H. Mother presents a single dispositive issue for our review, namely, whether the trial court abused its discretion when it awarded Grandparents visitation with C.L.H. We reverse.

[See pp. 12-14 for overview of grandparents' visitation rights in Indiana.]

The decision to deny Grandparents visitation is not something that Mother took lightly. And, while Grandparents enjoyed a very significant relationship with C.L.H. during the first five years and eight months of his life, that fact is not the touchstone in determining C.L.H.'s best interests. See Woodruff, 762 N.E.2d at 228. Rather, the presumption is that Mother, a fit parent, has made a decision that is in C.L.H.'s best interests, and that decision deserves special weight under the law. We conclude that the trial court's findings do not support the conclusion that visitation is in C.L.H.'s best interests. Grandparents have failed to meet their burden and to rebut the presumption accorded to Mother. See Hicks, 884 N.E.2d at 876 (reversing trial court's grant of grandparents visitation where, contrary to trial court's finding, Father's decision to deny visitation was based on his reasonable concerns). Under the circumstances, we reverse the trial court's order awarding visitation to Grandparents.
Reversed.

In Jay B. Stokes v. State of Indiana , a 15-page, Judge May writes:

Jay Stokes was convicted of attempted armed robbery, possession of a handgun by a serious violent felon, and being an habitual offender, and was sentenced to serve sixty years. He argues 1) there should have been a mistrial because an alternate juror was involved in the jury deliberations; 2) the State improperly indicated to the jury Stokes had been involved in other crimes; 3) there was insufficient evidence he attempted to take anything from the liquor store he was accused of trying to rob; 4) there was insufficient evidence he was the person who committed the crimes that made him an habitual offender; 5) the court should not have admitted evidence of his prior convictions; and 6) his sentence is excessive.
We affirm

In Gabino Gonzalez v. State of Indiana , an 11-page opinion, Judge May writes:

Gabino Gonzalez drove his pickup truck into a school bus while intoxicated. A jury found him guilty of criminal mischief and operating while intoxicated. Before his trial, while he was attempting to negotiate a guilty plea, Gonzalez wrote a letter to the school corporation in which he apologized for the accident and admitted he had been drinking that day. The trial court allowed the State to enter that letter into evidence. Gonzalez argues on appeal that was error because the letter was hearsay and because a letter written as part of guilty plea negotiations is inadmissible at a trial.

The letter should not have been admitted and the error was not harmless. We accordingly reverse and remand for a new trial.

NFP criminal opinions today (12):

Stephen Taylor v. State of Indiana (NFP)

August Trotter v. State of Indiana (NFP)

Valarie S. Dooley v. State of Indiana (NFP)

Joseph Craig Cassel v. State of Indiana (NFP)

Jared Henson v. State of Indiana (NFP)

Tyshawna Carpenter v. State of Indiana (NFP)

Ralph Rogers v. State of Indiana (NFP)

Warren V. Graham Jr. v. State of Indiana (NFP)

John L. Smith v. State of Indiana (NFP)

Allen Parker v. State of Indiana (NFP)

Frank Jenkins, IV v. State of Indiana (NFP)