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Wednesday, November 17, 2010

Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

For publication opinions today (5):

The Village Pines at the Pines of Greenwood Homeowners' Assn. Inc. v. The Pines of Greenwood Homeowners' Assn. Inc. is a 9-page opinion concerning dueling homeowners' associations. Judge Darden writes:

We find the critical question to be: does the Master Plan Ordinance require that there be a master homeowners’ association; and, if so, what areas of the PUD does it control? The answer must turn on the statutes – here, the PUD Zoning Ordinance and the Master Plan Ordinance. * * *

We hold that as a matter of law, the trial court erred when it concluded that the controlling ordinances – the PUD Zoning Ordinance and the Master Plan Ordinance – did not require the creation of a master homeowners’ association and for the shared use of amenities located in The Pines. Moreover, this error affects existing recorded covenants. * * *

We note that ab initio, the VP-HOA has sought equitable relief. Consistent therewith, we find that in order for the governance of The Pines to proceed in accordance with the law, i.e., by means of a master homeowners’ association, equity requires that the parties engage in mediation. The parties would work together to create governing documents for the master homeowners’ association -- with covenants as to both its management and its maintenance of The Pines’ common areas and amenities, and its structure for the assessment and collection of fees therefor; said covenants would thereafter run with the land within The Pines. The parties would also mediate the corollary reformation of existing POG and VP covenants consistent with the foregoing. Therefore, we instruct the trial court to order the parties to engage in mediation accordingly. Reversed and remanded.

In Gregory M. Small v. Frank A. Rogers , a 13-page opinion, Judge Darden writes:
As the Indiana Code is silent as to the liability between co-guarantors, we must look to common law. Id. In so doing, we apply the same theory of contribution that has been applied to co-sureties to co-guarantors, namely, “'[t]he right of contribution operates to make sure those who assume a common burden carry it in equal portions.'” Id. (quoting Fleck v. Ragan, 514 N.E.2d 1287, 1288-89 (Ind. Ct. App. 1987)). * * *

[I]n this case, the debt still exists. Rogers did not discharge the debt, either by paying the debt or a judgment on the debt. See Balvich, 894 N.E.2d at 243 (noting that contribution involves the reimbursement of one who has discharged a common liability). Furthermore, the amounts paid by Rogers do not constitute more than his proportionate share of the more than $5,000,000.00 of debt incurred. He therefore is not entitled to contribution from his co-guarantors at this time. Finding that Rogers is not entitled to judgment as a matter of law, we hereby reverse the trial court's entry of summary judgment for Rogers. Reversed.

In Randy Horton v. State of Indiana , a 21-page opinion, Judge Robb writes:
Randy Horton appeals, after a jury trial, his convictions of six counts of child molesting as Class A felonies, three counts of child molesting as Class C felonies, and consecutive sentences for an aggregate of 324 years. He raises two issues for our review that we expand and restate as three: whether the trial court erred by allowing a videotaped interview of a child-witness under the recorded recollection exception to the hearsay rule; whether the trial court erred by sentencing him to consecutive maximum sentences for each offense for a total of 324 years in prison; and whether his sentence is inappropriate. Concluding the trial court did not abuse its discretion in admitting evidence or sentencing Horton, and the 324-year sentence is not inappropriate considering the nature of the offenses and Horton's character, we affirm.
In Darrian Bunch v. State of Indiana , a 19-page opinion, Judge Kirsch writes:
Bunch's conviction in Count III was based upon his removing K.V., at gunpoint, from
the hallway of her home, taking her to the den, and forcing her to lay face down. His conviction under Count XI was based upon his removing her from the den and taking her, at gun point, upstairs to her bedroom in order to obtain the money and lottery tickets. Finally, Bunch's conviction under Count XII was based upon his ordering K.V. to leave the den and go to the front door in order to dissuade her niece from entering the home. There was no evidence, nor does the State point to any, suggesting that K.V. felt free and was, in fact, free from detention at any time within the span of her confinement during Bunch's home invasion. Regardless of the number of rooms to which she was confined, this was but one continuous period of confinement, and Bunch's convictions under Counts III, XI, and XII flowed from that offense. Bunch's convictions and sentences in Counts III, XI, and XII violated the double jeopardy clause of the Indiana Constitution. Accordingly, his convictions and sentences in Counts XI and XII, which merged into his conviction and sentence in Count III, must be vacated.
In R.A. v. State of Indiana , a 5-page opinion, Judge Darden writes:
R.A. appeals the juvenile court’s order that he be committed to the Indiana Department of Correction (the “DOC”). We reverse and remand.

ISSUE: Whether the juvenile court abused its discretion by committing R.A. to the DOC. * * *

Given the facts and circumstances of this case and the statutory policy favoring the least-harsh disposition, we reverse the juvenile court’s commitment of R.A. to the DOC. See, e.g., D.P. v. State, 783 N.E.2d 767, 771 (Ind. Ct. App. 2003) (finding that where the juvenile’s conduct did not rise to a level of repetitive and serious misconduct, the juvenile court abused its discretion in committing the juvenile to the DOC). Noting that the State “does not oppose remand in order to place R.A. in a secure residential treatment facility,” we hereby remand with instructions to the juvenile court to vacate its dispositional decree and order R.A.’s placement in an appropriate rehabilitative setting.

NFP civil opinions today (4):

Lisa Burress v. Brad Wells (NFP)

Robert Burch, et al. v. Vern Penner (NFP)

K.W. v. L.W. (NFP)

Michele Michaylo v. Event Experts (NFP)

NFP criminal opinions today (8):

Marty McConnell v. State of Indiana (NFP)

Anthony J. Woods v. State of Indiana (NFP)

Curtis E. Cash v. State of Indiana (NFP)

Kyle E. Beals v. State of Indiana (NFP)

Tracy Trimble v. State of Indiana (NFP)

Steve D. Eller v. State of Indiana (NFP)

Hirman Jackson v. State of Indiana (NFP)

Jared Beeler v. State of Indiana (NFP)

Posted by Marcia Oddi on November 17, 2010 02:15 PM
Posted to Ind. App.Ct. Decisions