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Monday, December 06, 2010

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Rex E. Breeden Revocable Trust v. Rebecca Hoffmiester-Repp , an 18-page opinion, Judge Riley writes:

Appellant-Plaintiff, Rex E. Breeden Revocable Trust appeals the trial court’s summary judgment in favor of Appellee-Defendant, Rebecca Jane Hoffmeister-Repp on the Trust’s Complaint for rescission and/or damages of an agreement to purchase a residence.

The Trust raises three issues on appeal, which we restate as:

(1) Whether the disclosure requirements set forth in Indiana Code chapter 31-21-5, which require the owner of a residence to disclose to a prospective buyer the working condition of certain key household components, apply to Hoffmeister-Repp’s sale of her residence to the Trust;

(2) Whether there are genuine issues of material fact regarding the Trust’s claim of fraud that would preclude a grant of summary judgment in favor of Hoffmeister-Repp; and

(3) Whether there are genuine issues of material fact establishing that the Trust and Hoffmeister-Repp made a mutual mistake when they entered into an agreement for the sale of the residence under the common assumption that the house was free of moisture problems. * * *

[W]e conclude that exception nine—transfers to a living trust—enacted in I.C. § 32-21-5-1(9) only applies when the transfer occurs between a seller and the seller’s own living trust. This is clearly not the case here, therefore, Hoffmeister-Repp was required to comply with the statute and to complete a Disclosure Form. * * *

Based on the designated evidence before us, we conclude that the Trust failed to show that Hoffmeister-Repp had actual knowledge of the moisture problems in the duct work at the moment she completed the Disclosure Form. Thus, finding no genuine issue of material fact, we hold that the Trust’s fraud claim fails. * * *

[W]e conclude that there is insufficient designated evidence to support a finding of mutual mistake.

Based on the foregoing, we conclude that the trial court properly granted summary judgment in favor of Hoffmeister-Repp.

In Charles E. Green v. State of Indiana , a 12-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the State presented sufficient evidence beyond a reasonable doubt to support Green’s conviction and the trial court did not abuse its discretion when it instructed the jury on accomplice liability. Affirmed.
In Peggy J. Rider and James R. Rider v. Larry L. McCamment, et al. , a 15-page, 2-1 opinion, Judge Riley writes:
Appellants-Plaintiffs, Peggy J. Rider (Peggy) and James R. Rider (collectively, Rider), appeal the trial court’s grant of summary judgment to Appellees-Defendants, Larry L. McCamment and Cynthia R. McCamment, individually, and Larry L. McCamment and Cynthia R. McCamment, d/b/a McCamment Homes, L.L.C. (collectively, McCamment), and Charles Lee, individually, and Charles Lee, d/b/a C&R Supplies, Inc. and Lee Construction Company (collectively, Lee) with respect to Rider’s claim for negligence resulting in personal injuries. We affirm, in part, and reverse, in part. * * *

Based on foregoing we conclude that the trial court properly entered summary judgment in favor of McCamment and erred in entering summary judgment in favor of Lee.

DARDEN, J., concur.
KIRSCH, J., concurring in part and dissenting in part with opinion. [that concludes] To me, the issue presented here is more properly stated not as the duty owed by Lee, but the risk incurred by Rider. I believe that one who enters upon an inherently dangerous construction site in the absence of either permission or notice incurs the risks of such inherent dangers as a matter of law.
I would affirm the trial court in all respects.

NFP civil opinions today (2):

Northeast Civic Association, Inc. et al. v. Gloria J. Beard, et al. (NFP)

Barry Wanner v. Jill Hutchcroft (NFP)

NFP criminal opinions today (5):

Guillermo Toledo v. State of Indiana (NFP)

Quantita L. Jackson v. State of Indiana (NFP)

Ira James Washington, Jr. v. State of Indiana (NFP)

Patrick T. Tolbert v. State of Indiana (NFP)

Stephen Ray Jones, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on December 6, 2010 01:35 PM
Posted to Ind. App.Ct. Decisions