Tuesday, July 28, 2009
Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)
For publication opinions today (1):
In James Nichols v. Estate of Ernest M. Tyler, a 16-page opinion, Judge Brown writes:
James Nichols appeals a judgment in favor of Maureen Utley, personal representative of the Estate of Ernest M. Tyler. Nichols raises two issues, which we revise and restate as: I. Whether the trial court erred when it concluded that Ernest Tyler was incompetent on February 8, 2005 to convey real property; and II. Whether the trial court erred by determining that Nichols failed to rebut the presumption of undue influence over Ernest Tyler with regard to a real property transfer. * * *NFP civil opinions today (1):
The first issue is whether the trial court erred by concluding that Tyler was mentally incompetent to sign the Contract on February 8, 2005. * * *
We conclude that the trial court's judgment that Tyler was incompetent to sign the Contract on February 8, 2005 was not clearly erroneous. * * *
The next issue is whether the trial court erred in determining that Nichols failed to rebut the presumption of undue influence over Ernest Tyler with regard to a real property transfer. * * *
The trial court determined that Nichols was not a credible witness. Nichols did not defeat the presumption that the transaction was the product of undue influence by clear and unequivocal proof. Specifically, Nichols failed to demonstrate that he did not take advantage of the opportunity to exercise heavy and undue influence on Tyler, an elderly man not his relative, and who had a history of mental infirmity, between 2001 and 2005. Unlike in Meyer v. Wright, relied upon by Nichols, Nichols never had Tyler examined by a doctor who might have provided independent judgment as to Tyler's ability to enter into an arm's length transaction. 854 N.E.2d 57, 61 (Ind. Ct. App. 2006), trans. denied. Nichols instead relied entirely on a determination made by an attorney who was not a medical expert and who was never made aware of, nor inquired into, Tyler's mental health history.
Though couched differently, Nichols's arguments are little more than an invitation for this Court to reweigh the evidence presented at trial, which we cannot do. ... At trial, two very different images of Ernest Tyler were depicted by the parties, and the trial court found that the depiction presented by Tyler's Estate was the more accurate one. We cannot say that the trial court erred by determining that Nichols failed to rebut the presumption of undue influence. * * *
For the foregoing reasons, we affirm the trial court's judgment.
Mark Jones v. Marlene (Jones) Huckaby (NFP) - "The trial court’s decisions to continue the joint custody arrangement and increase Father’s share of the child support are not clearly erroneous. It was unnecessary for the trial court to include additional directives regarding contacts with maternal grandfather."
NFP criminal opinions today (4):
Posted by Marcia Oddi on July 28, 2009 12:58 PM
Posted to Ind. App.Ct. Decisions