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Tuesday, July 27, 2010

Ind. Courts - How Have the Judges Fared? Judge Steven Nation

As explained in the post headed "How Have the Judges Fared?" the ILB is examining the records on appeal of the four trial judge semi-finalists for the Supreme Court vacancy. This feature on Judge Steven Nation's record, from IU Law-Indy Prof. Joel Schumm, is the fourth and final of those entries.

[Note: This entry has been updated to include today's (7/27/10) COA ruling in Wilson Revocable Trust.]

Judge Steven Nation has presided over the Hamilton County Superior Court 1 since January 1995. His application notes that he has resolved nearly 30,000 cases and has about 3,000 pending; “[i]n addition to the growing number of cases, such cases have increased in their complexity and pleading volume.” (p. 8)

Of the 91 appealed cases reviewed, Judge Nation was reversed in 32 (or 35%).

Supreme Court

Civil/Probate cases

In re Estate of Inlow (2009) - “We reverse the court's September 5, 2007, order to the extent that such order approves the claim of the Successor Personal Representative for the distribution of the full amount of funeral and burial expenses from the wrongful death settlement proceeds. This case is remanded to the court for a determination of the portion of said expenses to be distributed to the Estate from the wrongful death settlement in a manner consistent with this opinion.”

City of Carmel v. Steele (2007) - “The legal description in annexation Ordinance C-265 describing territory the City of Carmel sought to annex demonstrates that the territory is contiguous to the City's corporate boundaries. The trial court thus erred in failing to deny the Steeles' appeal and dismiss the proceeding.”

ISP.com LLC v. Theising (2004) - “The order of the trial court denying the motion to compel arbitration is reversed. This case is remanded with instructions to order the plaintiff, ISP.com, LLC and ISP.net, LLC to arbitrate their dispute under section 9.16 of the Asset Purchase Agreement.”

In re Adoption of Infant Child Baxter (2003) - “After signing consents to the adoption of their baby, the biological parents attempted to withdraw their consents on grounds that they had not been properly notarized in accordance with the provisions of the Indiana adoption statute. We hold that if the written consent is not properly notarized, the validity of the consent may nevertheless be satisfied by evidence that the signatures are authentic and genuine in all respects and manifest a present intention to give the child up for adoption.”

Wal-Mart Stores, Inc. v. Wright (2002) - “The second paragraph of the instruction told the jurors that because Wal-Mart has established certain rules and policies, those rules and policies are evidence of the degree of care recognized by Wal-Mart as ordinary care. But Wal-Mart is correct that its rules and policies may exceed its view of what is required by ordinary care in a given situation. . . . There is a second problem with the instruction. Even if the Manual reflected Wal-Mart's subjective view of ordinary care, the second paragraph of the instruction incorrectly states the law because it invites jurors to apply Wal-Mart's subjective view-as evidenced by the Manual-rather than an objective standard of ordinary care.”

Original action

State ex rel. Johnson v. Hamilton Superior Court No. 1 (2009) - “Relator has filed a verified petition for writ of mandamus and accompanying application papers under the rules governing original actions. Relator alleges the trial court failed to rule on motions for summary judgment within the time limit in Trial Rule 53.1(A).”

Criminal cases

Neff v. State (2006) - “This appeal raises familiar questions regarding the permissibility of aggravators used in sentencing a criminal defendant. It also raises the novel question of whether the appropriate remedy when aggravators are found improper is always remand with opportunity for the State to prove to a jury those aggravators found improper under Blakely. We conclude the Court of Appeals was correct simply to revise Neff's sentence.”

Court of Appeals

Civil/Probate cases

In re Wilson Revocable Trust (2010) - "We find that the Trustee breached duties owed to the Objecting Beneficiaries and that the trial court properly ordered the Trustee to pay the Objecting Beneficiaries’ attorney fees, reduced the Trustee’s requested fiduciary fees, and ordered that the Trust only be responsible for a portion of the Trustee’s attorney fees. We also find, however, that it was error to order that the Trustee bear the remaining portion of his attorney fees personally. Therefore, we affirm in part and reverse in part."

Hammack v. Hammack (2009) - “We reverse in part and remand with instructions to (1) either clarify why the trailer should be awarded to Susan or award it to Rodger as a part of his Hammack construction business and (2) either clarify why half of the life insurance policy's cash surrender value should not be awarded to Rodger or award Rodger an additional $1250. In all other respects, we affirm the judgment of the trial court.”

McClure & O’Farrell, P.C. v. Grigsby (2009) - “Inasmuch as none of the four primary arguments raised by the Law Firm in opposition to Patricia's petition were unreasonable, the trial court erred by ordering the Law Firm to pay Patricia's attorney fees, and the judgment of the trial court is reversed.”

Gunnell v. State (2009) - “Because the summons and forfeiture complaint were not delivered or mailed to the official in charge of the Hamilton County Jail and then immediately delivered to Gunnell, service on Gunnell at the Indianapolis address was defective. The default judgment is void based on the improper service. The trial court therefore erred in denying Gunnell's motion to set aside the default judgment.”

Smyth v. Hester (2009) - “We acknowledge that the record may include some questionable litigation tactics that might support the trial court's exercise of its discretion to award attorney fees. However, our review in that regard is impaired by the fact that the order appealed does not provide us with any insight as to the trial court's reason for the award of attorney fees in this case, i.e., what the trial court found to be frivolous, unreasonable, and bad faith conduct. Accordingly, we remand to the trial court for further consideration and explanation of its judgment in that regard.”

Bank One v. Surber (2009) - “By denying Bank One a set-off for its September 29, 2005 payment to Jeannene, the trial court has given Jeannene a windfall and has placed her in a better position than she would have been in had Bank One not acted negligently and not breached its contract with Jeannene. Therefore, we conclude that the trial court's refusal to award Bank One a set-off for the September 29, 2005 payment constituted an abuse of discretion.” & “Before the trial court could award Jeannene attorney fees for the estate litigation, it was incumbent upon it to find that Jeannene personally incurred attorney fees in that litigation and the total amount of fees incurred.”

Lauth Indiana Resort & Casino v. Lost River Dev. (2008) - “In conclusion, we hold that if a joint venture is formed for the purpose of submitting a proposal or similar bid, and the joint venture agreement is silent as to when or under what circumstances the joint venture will end, then the joint venture ends, as a matter of law, when the proposal or bid is rejected. Therefore, the Lost River joint venture ended as a matter of law when the IGC chose the proposal of Trump Indiana. Lauth therefore did not breach the joint venture agreement or any duties it had to the other parties to the joint venture when it partnered with the Cook Group, and the trial court erred in denying Lauth's motion for summary judgment.”

Sanders v. Sanders (2008) - “The denial of the motion to compel was based entirely on credibility assessments by the trial court; on its face, McNamar's motion to compel was not unreasonable. We conclude McNamar was ‘substantially justified’ in filing that motion. Thus, we reverse the imposition of $750.00 in sanctions against McNamar in connection with that filing.”

Mueller v. Karns (2008) - “Finding that Karns's offer was never accepted, that even if there was a contract its enforcement is barred by the Statute of Frauds, and that Karns is entitled to quantum meruit compensation but failed to provide evidence supporting the valuation of his services apart from evidence that he has received between $2500 and $10,000 on past projects, we reverse the judgment of the trial court and remand with instructions to hold a hearing on the amount of compensation to which Karns is entitled, with a minimum of $2500 and a maximum of $25,000.”

In re Guardianship of Atkins (2007) - “We find, among other things, that although the trial court did not abuse its discretion by naming the Atkinses to be Patrick's co-guardians, there is overwhelming evidence in the record establishing that it is in Patrick's best interest to continue to have contact with Brett, his life partner of twenty-five years. We also find that the trial court erroneously refused Brett's request to have a portion of his attorney fees and costs paid by the guardianship estate. Thus, we affirm in part, reverse in part, and remand with instructions to grant Brett the visitation and contact with Patrick that he requested and to calculate the amount of Brett's attorney fees and costs to be paid by the guardianship estate.”

Drees Co., Inc. v. Thompson (2007) - “[T]he trial court erred in granting the permanent injunction against Drees, because Thompson/Estridge were not able to succeed on the merits of their claim of unreasonable interference of their ingress/egress rights. The permanent injunction was granted pursuant to a summary judgment motion and was based on the same materials and application of law as used to support the issuance of the preliminary injunction. Therefore, we come to the same conclusion that the preliminary injunction was not warranted, because when the law is applied to the facts, Thompson/Estridge was not able to demonstrate unreasonable interference with their easement rights.”

Adams ex rel. Adams v. Sand Creek, Inc. (2007) - “Kahn P.C. raises one issue, which we restate as whether the trial court abused its discretion by ordering Kahn P.C. to post bond to the Hamilton County Clerk to provide security for RBPBB's attorney fee lien on the proceeds of a confidential settlement agreement between plaintiffs and several defendants in the above-captioned lawsuit.”

Daimler-Chrysler Corp. v. White (2006) - “DaimlerChrysler argues that the trial court erred in denying its Motion to Dismiss and Compel Arbitration. Specifically, it contends that binding arbitration agreements are enforceable under the MMWA. The parties' arguments on appeal are the same as those we address today in the companion case of Walker v. DaimlerChrysler Corp., No. 27A02-0507-CV-596, ---N.E.2d ---- (Ind. Ct. App. Nov. 2, 2006). For the reasons we set forth in that opinion, we agree with DaimlerChrysler that the MMWA permits binding arbitration. Therefore, we reverse the decision of the trial court and remand this cause with instructions to the trial court to grant DaimlerChrysler's Motion to Dismiss and Compel Arbitration.”

CWE Concrete Const., Inc. v. First Nat. Bank (2004) - “CWE Concrete Construction, Inc. d/b/a Elbrecht Concrete and Christopher Elbrecht (collectively, ‘Elbrecht’) appeal the trial court's grant of summary judgment in favor of First National Bank (‘FNB’), raising several issues, one of which we find dispositive: whether Elbrecht's revolving line of credit had a borrowing base. Because we find that the revolving line of credit did not have a borrowing base, we conclude that Elbrecht was not in default at the time that FNB froze its bank account, accelerated its other loans, and filed its complaint. Consequently, we find that the trial court erred by granting summary judgment in favor of FNB and reverse and remand for further proceedings.”

Bobrow v. Bobrow (2004) - “The Public Records Act permits the trial court to seal public records that fall within a mandatory exception to the Act either before or after they are admitted into evidence. Accordingly, the trial court erred by denying E & Y and Cap Gemini's Motion to Seal the eighteen exhibits. Although interested third persons may request that records be sealed after they are admitted into evidence, this is a right that can be waived. Richard has waived his right to seal the various records because he stood silently by as the records were admitted into evidence and as the trial transcript was being made.”

In re Adoption of Infant Female Fitz (2002) - “Because we have concluded that if the facts as alleged by Rudd are true, he has established fraud on the court and made a prima facie showing of a meritorious defense, we reverse and remand with instructions for the trial court to hold a hearing on Rudd's motion for relief from judgment.”

Ind. Family & Soc. Svcs. Admin. v. Legacy Healthcare (2001) - “Because there was no irreparable harm and the trial court's order disrupted the administrative process, the trial court lacked subject matter jurisdiction to address the merits of New Horizon's petition. When there is a lack of subject matter jurisdiction, the court is without jurisdiction to do anything in the case except to enter an order of dismissal. The trial court was without jurisdiction to grant the stay. Therefore, the stay is void and we vacate the trial court's order and dismiss.”

In re Guardianship of C.M.W. (2001) - “None of these due process considerations were afforded Grandfather before the trial court found him in contempt. Therefore, we must reverse that portion of the trial court's order finding Grandfather in contempt.”

Ind. State Dep’t Health v. Legacy Healthcare (2001) - “The trial court erred in reversing the appeals panel's final order in this case, in which the panel determined that the Department has the authority to terminate the certification of Medicaid facilities, and in granting summary judgment in favor of New Horizon.”

Wallace v. Wallace, 714 N.E.2d 774 (Ind. Ct. App. 1999)
- “In summary, the record demonstrates that the trial court systematically excluded from the marital estate those assets that were attributable to gifts or inheritance from Chris's family. Thus, the presumption that the trial court complied with the applicable law in dividing the assets has been rebutted and we conclude that the trial court abused its discretion and the division of the marital estate must be reversed.”

Brownsburg Conservation Club v. Hendricks County Bd. of Zoning Appeals (1998) - “We conclude the BZA erred in failing to give the Club notice and an opportunity to be heard on the question of whether the conditions for approval have been met. We also conclude the BZA erred in failing to enter findings of fact to support its decision. Therefore we reverse the judgment of the trial court, and remand to the court with instructions that it remand this action to the BZA for further proceedings consistent with this opinion.”

DRW Builders, Inc. v. Richardson (1997) - “Although Richardson is entitled to reimbursement for attorneys' fees on his derivative claim, those fees must be assessed against DRW and not the Witskens. Therefore we reverse that portion of the trial court's judgment which entitles Richardson to recover attorneys' fees from the Witskens and remand to the trial court for an entry of judgment entitling Richardson to recover such fees from DRW. On remand, the trial court is also directed to compute that portion of attorneys' fees attributable only to Richardson's derivative claim and to amend the amount of the attorney fee award accordingly.”

Whyde v. Czarkowski (1995) - “However, in Czarkowski's deposition, he testified he did not perform any passive motion on Whyde during the examination. He stated several times that he did not assist in any motion of her arm. Specifically, Czarkowski stated ‘I do not recall moving her shoulder. I do recall the visit and the only thing I observed was her active range of motion [self-induced motion] and the patient underwent palpation to determine where she was tender.’ As a result, there are facts in dispute which would dispose of this litigation and, therefore, summary judgment was improper.”

Criminal cases

Mateyko v. State (2009) - “[W]e are dealing with ‘triple-hearsay,’ i.e. hearsay within hearsay within hearsay. The witness, Fishburn, testified regarding what Mateyko's probation officer, Nunn, told her regarding what Mateyko's therapist told Nunn regarding what Mateyko said to her. Importantly, there is no indication in the record that the trial court explained why hearsay within hearsay within hearsay was reliable or why any reliability was substantial enough to support good cause for not producing a live witness.”

Sigler v. State (2000) - “Based upon the foregoing, we conclude that the trial court improperly limited Sigler's cross-examination of the State's witnesses, and the error was not harmless.”

Posted by Marcia Oddi on July 27, 2010 12:00 PM
Posted to Vacancy on Supreme Ct