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Wednesday, October 28, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 2 NFP)

For publication opinions today (4):

In Jeff and Nancy Ream v. Yankee Park Homeowner's Association, Inc. , a 22-page, 2-1 opinion, Judge Bradford writes:

Appellants/Plaintiffs/Counterclaim-Defendants Jeff and Nancy Ream (the “Reams”) appeal the trial court’s order in favor of Appellee/Defendant/Counterclaim-Plaintiff Yankee Park Homeowner’s Association, Inc. (“Yankee Park”) terminating the Reams’ leases for and evicting them from Lots 50 and 68 in Yankee Park. On appeal, the Reams raise three issues, which we restate as follows: I. Whether the trial court erred in finding that Yankee Park demonstrated a legal basis for evicting the Reams from Lots 50 and 68; II. Whether the trial court erred in denying the Reams’ claim for equitable relief to ensure that the Reams could place trailers on their lots as they saw fit; and III. Whether the trial court committed reversible error by denying the Reams’ claim for damages. We affirm. * * *

Having found no clear error in (1) the trial court’s determination that a legal basis existed to terminate and forfeit the Reams’ interest in Lots 50 and 68; (2) the trial court’s findings and conclusions relating to the Reams’ request that the trial court require Yankee Park to provide specific legal descriptions for each of the lots contained within the Park to secure the Reams’ right to place a trailer on each of their remaining lots; and (3) in light of the fact that the Reams committed the first material breach of the lease agreements for Lots 50 and 68, and cannot recover damages resulting from any alleged breach of the leases for lots 50 and 68 by the Board of Directors, we affirm the judgment of the trial court. The judgment of the trial court is affirmed.

BAILEY, J., concurs.
VAIDIK, J., dissents with opinion. [which begins, at p.20] I respectfully dissent. I agree that the Reams materially breached the terms of their lease and are not entitled to damages or equitable relief, but I disagree with the majority that forfeiture is the appropriate remedy in this case.

In Susan (Wood) Runkle v. Max A. Runkle, et al. , a 14-page opinion, Judge Brown concludes:
We conclude that Fifth Third Bank established as a matter of law that Susan (or her attorney) knew or in the exercise of ordinary diligence should have known more than two years before she filed her complaint that Fifth Third Bank had wrongfully issued a second mortgage on the marital residence. In the absence of any designated evidence that Max's Verified Financial Declaration was not promptly served on Susan's attorney in accordance with the Indiana Trial Rules, we conclude as a matter of law that she (or her attorney) knew or should have known prior to June 3, 2003, that she had suffered some sort of injury as a result of Fifth Third Bank's allegedly wrongful actions. See Minnick v. Minnick, 663 N.E.2d 1226, 1229 (Ind. Ct. App. 1996) (noting that “attorneys have a general duty to regularly check the court records and monitor the progress of pending cases”); Patton Elec. Co., Inc. v. Gilbert, 459 N.E.2d 1192, 1194 (Ind. Ct. App. 1984) (“It is the duty of an attorney to regularly check the court records and monitor the progress of pending cases.”).

For the foregoing reasons, we reverse the trial court's grant of Max's motion for summary judgment, and affirm the trial court's grant of Fifth Third Bank's motion for summary judgment, and remand for proceedings consistent with this opinion.

In State of Indiana v. Lindsey D. Schmitt, a 7-page opinion, Judge Mathias writes:
The Warrick Superior Court dismissed criminal misdemeanor charges against Lindsey Schmitt (“Schmitt”) due to the State’s failure to comply with court-ordered discovery. The State appeals and argues that the trial court erred when it dismissed the charges as a sanction for a discovery violation absent a showing of deliberate misconduct or bad faith. Concluding that the trial court did not clearly err when it dismissed the charges as a sanction for the discovery violation, we affirm.
In Cinergy Corp., et al v. St. Paul Surplus Lines Insurance Co., et al, a 22-page opinion in a much-lawyered, "duty to defend" case, Judge Mathias writes:
Cinergy Corporation, Duke Energy Indiana Inc., and Duke Energy Ohio Inc. (collectively “Cinergy”) appeal the Hendricks Superior Court's grant of summary judgment in favor of St. Paul Surplus Lines Insurance Co. (“St. Paul”), Travelers Casualty and Surety Co., and Associated Electric and Gas Insurance Services, Ltd. (“AEGIS”) (collectively “the Insurers”), and the trial court's determination that the Insurers have no obligation to defend, indemnify, or otherwise provide coverage to Cinergy in connection with Cinergy's alleged liability for violations of the Clean Air Act. Cinergy appeals and raises several issues, which we consolidate and restate as: I. Whether the trial court appropriately interpreted our supreme court's decision in Cinergy Corp. v. Associated Electric & Gas Insurance Services, Ltd., 865 N.E.2d 571 (Ind. 2007) in determining that the Insurers have no duty to defend or indemnify Cinergy in connection with Cinergy's alleged violations of the Clean Air Act; II. Whether the trial court erred when it determined that Cinergy's claims are not covered under the Insurers' policies; and, III. Whether the trial court should have postponed its coverage determination until the underlying federal lawsuit concerning Cinergy's alleged Clean Air Act violations was concluded.

Concluding that the trial court properly entered summary judgment in favor of the Insurers, we affirm. * * *

There was neither an actual or potential occurrence to bring the claims against Cinergy in the underlying federal litigation within the terms of the Insurers' policies. Therefore, trial court properly concluded that the Insurers have no obligation to defend, indemnify or otherwise provide coverage to Cinergy in connection with Cinergy's liabilities for alleged violations of the Clean Air Act for operations related to the Cayuga, Gallagher, Wabash, Gibson, Beckjord, Miami Fort and J.M. Stuart sites. Accordingly, we affirm the trial court's grant of summary judgment in favor of the Insurers.

NFP civil opinions today (1):

In Re The Marriage of Thomas L. Fine and Karen D. Fine (NFP) - "The evidence supports the trial court’s findings of fact that no written contract satisfying the Statute of Frauds for the sale of the Residence existed. In addition, there is no conclusive evidence to establish the equitable exceptions of promissory estoppel or part performance. Therefore, the trial court’s findings support its conclusions of law that Thomas has no ownership interest in the Residence. As a result, the judgment of the trial court is affirmed."

NFP criminal opinions today (1):

Randell Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on October 28, 2009 12:02 PM
Posted to Ind. App.Ct. Decisions