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Monday, November 15, 2010
Ind. Decisions - Court of Appeals issues 11 today (and 11 NFP)
For publication opinions today (11):
In Mary Booher, et al. v. Sheeram, LLC, an 8-page opinion, CJ Baker writes:
An attorney was facing major surgery and attempting to work with an expert who was unable to get a report completed in a timely fashion. Consequently, the attorney contacted opposing counsel to explain that an extension of time to file his client’s designated evidence in opposition to summary judgment would be needed. Opposing counsel agreed that an extension would be acceptable. Although we encourage collegiality among members of the legal profession, the attorney here should also have filed a formal request with the trial court for an extension of time. Having failed to do so, the trial court was without discretion to accept the technically late-filed documents.In Tony A. Holmes v. Celadon Trucking of Indiana, et al. , a 7-page opinion, Judge Bradford concludes:
Appellants-plaintiffs Mary and Steve Booher appeal the trial court’s order granting summary judgment in favor of appellee-defendant Sheeram LLC d/b/a Hampton Inn of Elkhart (Hampton Inn) on the Boohers’ negligence complaint. The Boohers argue that the trial court erroneously struck their designation of material facts in opposition to Hampton Inn’s summary judgment motion as untimely. They also contend that there are issues of material fact precluding summary judgment. Finding no error and no issues of fact, we affirm.
Because Trial Rule 3 explicitly states that an action commences when the initiating party files the original and necessary copies of the complaint, the prescribed filing fee, and the original and necessary copies of the summons, and the evidence before the trial court indicates that Holmes filed these required documents via certified mail on April 24, 2009, we conclude that Holmes commenced the instant action during the statutorily allotted time. Therefore, we further conclude that the trial court erroneously granted Celadon’s motion for judgment on the pleadings on the grounds that the action was not filed within the statutorily allotted time frame. Accordingly, we remand this action for the entry of partial summary judgment in favor of Holmes on the question of whether the instant action was timely filed.In City of Jeffersonville v. Hallmark at Jeffersonville, a 17-page opinion, Judge Brown writes:
The judgment of the trial court is reversed and the matter is remanded for further proceedings consistent with this opinion.
[T]he record suggests that a calculation error was made in computing the correct sewer tap fee under Ordinance 63.9 Accordingly, the voluntary payment doctrine is inapplicable in this case.In In the Matter of the Unsupervised Estate of Dwight M. Wilson v. Phyllis Steward, a 9-page opinion, Judge Crone writes:
To the extent that the City argues that the voluntary payment rule applies in this case because the City is a governmental entity, we disagree. * * *
In addition, as previously mentioned, Ind. Code § 36-9-23-28.5 provides that an overpayment which remains unclaimed for more than seven years becomes property of the municipality. We can think of no policy reason consistent with these statutes to permit the City to keep Hallmark's overpayment—which was seven times the proper sewer connection fee amount under Ordinance 63—under the facts of this case, especially where the City would be taking financial advantage of its own calculation error. Under the circumstances of this case, and in light of the Indiana Code sections above governing sewer fees, we cannot say that the policy justifications referred to in Time Warner, and perhaps demonstrated to some extent by City of Evansville and other cases cited by the City, favor application of the voluntary payment rule, even though the City is a governmental entity.
This case addresses the question of how long is too long to wait before enforcing a money judgment. In September 2009, shortly after a father's death, his ex-wife filed a claim against his estate for unpaid child support stemming from a July 1989 judgment against the father. The estate asked the court to dismiss the ex-wife's claim, arguing that she failed to make a timely claim under Indiana law. The trial court denied the estate's request and awarded the ex-wife damages.In Wayne & Susan Vanderwier v. Joshua & Stephannie Baker, a 10-page opinion, Judge Mathias concludes:
The estate of Dwight M. Wilson (“Father's estate”) appeals, arguing that Indiana's statutes of limitation bar the claim filed by Phyllis J. Steward (“Mother”) against Father's estate. Finding no error, we affirm.
This evidence supports the trial court's judgment that the Bakers established, by a preponderance of the evidence, that the Vanderwiers made fraudulent misrepresentations on the Sales Disclosure Form, and that the Bakers justifiably relied on the Vanderwiers' fraudulent disclosure of only “minor garage seepage.” For all of these reasons, we affirm the trial court's judgment in favor of the Bakers.In Robert Guy v. Commissioner, Indiana BMV , an 8-page opinion, Judge Vaidik writes:
Robert T. Guy appeals the trial court’s denial of his verified petition for order to renew his Indiana operator’s license. Because Guy only served the Commissioner of the Bureau of Motor Vehicles and did not also serve the Attorney General, as required by both the Indiana Administrative Orders and Procedures Act and Indiana Trial Rule 4.6(A)(3), we conclude that the trial court did not have personal jurisdiction and therefore could not enter any order in this case. We therefore vacate the trial court’s order. * * *Charlotte Manns v. Amos J. Richie, et al.
Because the Attorney General was not served as required by both the AOPA and Trial Rule 4.6(A)(3), it comes as no surprise that no one appeared on the Commissioner’s behalf at the December 29 expedited hearing. * * *
Because Guy did not serve the Attorney General, his service of process was ineffective in this case. The trial court did not have personal jurisdiction over the Commissioner and therefore could not enter any order in this case. We therefore vacate the trial court’s order. Vacated and Reversed.
NFP civil opinions today (5):
NFP criminal opinions today (6):
Posted by Marcia Oddi on November 15, 2010 11:30 AM
Posted to Ind. App.Ct. Decisions