Tuesday, February 15, 2011
Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)
For publication opinions today (3):
In Deborah J. Wise v. David T. Hays, et al. , a 16-page opinion, Judge Vaidik writes:
A buyer filed a complaint against the sellers of real estate for fraud and negligence. The sellers filed an Indiana Trial Rule 12(B)(6) motion to dismiss for failure to state a claim. The buyer now appeals the trial court's grant of the motion. Because the trial court relied on matters outside the pleading, we treat the sellers' motion as one for summary judgment. Concluding that genuine issues of material fact exist as to whether the sellers made fraudulent misrepresentations on the sales disclosure form required by statute, we reverse the trial court's dismissal order and remand for proceedings consistent with this opinion.ILB: This is a significant opinion re a seller's duty to disclose material facts about the property, see particularly continuing on from the last paragraph on p. 9.
In In the Matter of the Guardianship of J.Y., D.R. v. Carey Services, Inc. , a 12-page opinion, Judge Bailey concludes:
We acknowledge the attractiveness of D.R.’s approach, which seeks to permit only organizations that are also corporate fiduciaries to act as guardians. Nevertheless, the Legislature entrusted the courts with discretion to determine who should serve as a guardian, and circumscribed this decision with fewer limitations than it has the appointment of a personal representative.In K.D., et al. Alleged to be C.H.I.N.S.; S.S. v. I.D.C.S. , a 20-page, 2-1 opinion, Judge Vaidik writes:
We hold that the requirements of a personal representative are not the same as the requirements for a guardian, and that as a result a nonprofit corporation not authorized as a corporate fiduciary in Indiana may serve as guardian where it could not serve as a personal representative. Because this is the only issue raised by D.R. before this court—D.R. does not argue that the court abused its discretion in any other way when it appointed Carey as guardian of J.Y.’s person4—we conclude that the trial court was within its discretion to appoint Carey guardian of J.Y.’s person.
S.S. ("Stepfather") appeals the juvenile court‘s adjudication finding his stepchildren to be children in need of services (CHINS). The Department of Child Services (DCS) filed a petition alleging that Stepfather‘s stepchildren were CHINS. The petition named both Stepfather and the children‘s mother as parties to the proceeding. Mother admitted to the allegations in DCS‘s petition, but Stepfather denied the allegations and requested a factfinding hearing. The juvenile court adjudicated the children CHINS without a hearing and then proceeded to disposition. We conclude that the juvenile court erred by denying Stepfather a factfinding hearing on the CHINS allegations. Although the Indiana Code provides that the court "shall" enter judgment following the admission by a parent, guardian, or custodian to the CHINS petition, Ind. Code § 31-34-10-8(1), the Code also guarantees parents, guardians, and custodians "in proceedings to determine whether a child is a child in need of services" the rights "(1) to cross-examine witnesses; (2) to obtain witnesses or tangible evidence by compulsory process; and (3) to introduce evidence on behalf of the parent, guardian, or custodian," Ind. Code § 31-32-2-3. We conclude that where, as here, one party admits to CHINS allegations while another denies them, due process entitles the contesting party to a factfinding hearing and adjudication. We reverse and remand. * * *
ROBB, C.J., concurs.
MAY, J., dissents with separate opinion. [which begins, at p. 13 of 20] I do not believe the trial court violated Stepfather‘s right to due process when it declared his step-children to be in need of services based on their Mother‘s admission to the allegations in the amended CHINS petition, without hearing evidence from Stepfather following his denial of the CHINS allegations. I must therefore respectfully dissent.
NFP civil opinions today (1):
NFP criminal opinions today (4):
Posted by Marcia Oddi on February 15, 2011 10:13 AM
Posted to Ind. App.Ct. Decisions