« Ind. Decisions - More on "Inmates' sexual romps not a crime" | Main | About this Blog - Rare ATT DSL outage much of today »

Friday, October 09, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Daisy Farm Limited Partnership v. Michael and Jill Morrolf, a 16-page opinion, Judge Friedlander writes:

This is the second time this dispute between Daisy Farm Limited Partnership and Michael and Jill Morrolf concerning the ownership of land has come before us. In this iteration, Daisy Farm appeals the trial court's decision upon remand that Daisy Farm did not acquire title by adverse possession of a triangular-shaped parcel of land deeded to the Morrolfs. Daisy Farm presents the following restated issue for review: Did the trial court err in concluding that Daisy Farm failed to prove all of the elements necessary to take title to the disputed property by adverse possession? We affirm. * * *

Daisy Farm contends that it proved all of the elements necessary to acquire title to the disputed section of land by adverse possession. The traditional elements of adverse possession descending from the common law required the claimant to prove the possession was (1) actual; (2) visible; (3) open and notorious; (4) exclusive; (5) under claim of ownership; (6) hostile; and (7) continuous for the statutory period. In Fraley, our Supreme Court condensed and synthesized those elements to now consist of control, intent, notice, and duration. Those elements were defined as follows:

(1) Control--The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual,” and in some ways “exclusive,” possession);
(2) Intent--The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right,” “exclusive,” “hostile,” and “adverse”);
(3) Notice--The claimant's actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant's intent and exclusive control (reflecting the former “visible,” “open,” “notorious,” and in some ways the “hostile,” elements); and,
(4) Duration--the claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).
Fraley v. Minger, 829 N.E.2d at 486. * * *

In summary, there was conflicting evidence on each of the points to which Daisy Farm cites in support of its argument that it exercised exclusive control over the triangular area beyond that permitted to the general public via the public easement. * * * Even assuming for the sake of argument, however, that Daisy Farm had established the foregoing elements by clear and convincing evidence, we conclude that the claim must fail on the remaining element, i.e., the failure to substantially comply with the payment of taxes. * * *

In summary, Daisy Farm failed to establish that the trial court committed clear error in concluding that Daisy Farm failed to establish all elements of its claim of adverse possession.

In U.S. Bank, N.A. v. Integrity Land Title Corp. , an 11-page, 2-1 opinion, Judge Crone's majority opinion in a petition for rehearing concludes:
Consequently, we exercise our inherent authority to reconsider our original opinion and hereby vacate our reversal of summary judgment on U.S. Bank’s contract claim. In other words, we affirm the trial court in all respects.

ROBB, J., concurs.
MAY, J., dissents with separate opinion. [which begins, at p. 8] Our rules do not permit Integrity to raise the contract argument in what it characterizes as its “response” to the tort argument U.S. Bank raised in its petition for rehearing. Moreover, allowing Integrity to do so in a brief in response to a petition for rehearing is unfair because it effectively deprives U.S. Bank of an opportunity to respond to the contract argument. I must therefore respectfully dissent from the grant of rehearing.

NFP civil opinions today (2):

In the Matter of the Supervised Estate of Ronald M. Unger (NFP) - "Here, the co-executors did not testify regarding the work or the time they spent on Estate matters. Instead, Shaffer testified that he did not know precisely how much time the co-executors had worked on Estate matters, but did state that they were always available for such work. He later estimated that the co-executors had spent approximately 300 hours on Estate matters. He explained that he arrived at the requested $70,000 by roughly halving the requested amount of attorney fees. He also testified that $80 per hour would be a reasonable fee for the co-executors to charge. This hourly rate multiplied by Shaffer’s estimate of 300 hours of work performed by the co-executors, comes to only $24,000. Yet the requested fee was almost three times this amount. Under these facts and circumstances, we conclude that Brenda has established at least prima facie error with regard to the trial court’s award of co-executors’ fees.

"We therefore reverse the trial court’s order awarding fees and remand for proceedings to determine reasonable fees based upon the amount and description of services actually provided and the reasonable value of such services."

Mark Bunker v. Nicole Cherie Paradis (NFP)

NFP criminal opinions today (9):

Donald Lee Vacendak v. State of Indiana (NFP)

David Jackson v. State of Indiana (NFP)

Demarcus Priester v. State of Indiana (NFP)

Lenn Ivy v. State of Indiana (NFP)

Octavius Alexander v. State of Indiana (NFP)

James Cushinberry v. State of Indiana (NFP)

Justin May v. State of Indiana (NFP)

Ricky Wayne Anderson v. State of Indiana (NFP)

B.P. v. State of Indiana (NFP)

Posted by Marcia Oddi on October 9, 2009 10:50 AM
Posted to Ind. App.Ct. Decisions