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Monday, February 28, 2011

Ind. Decisions - Court of Appeals issues 5 today (and 17 NFP)

For publication opinions today (5):

In B & B, LLC v. Lake Erie Land Company , a 20-page opinion, Judge Baker writes:

In this case of first impression, we consider whether a landowner, who raises the subterranean water table on his land and creates a federally regulated wetland, may invoke the common enemy doctrine of water diversion and shield himself from liability to adjoining landowners whose property also became federally regulated wetlands? We answer this question in the negative and conclude that the trial court erroneously granted the defendant-landowner’s motion for a judgment on the evidence.

Appellant-plaintiff B&B, LLC (B&B) appeals the trial court’s grant of judgment on the evidence with regard to its claims against appellee-defendant Lake Erie Land Company (LEL) for trespass, nuisance, and negligence. Specifically, B&B maintains that the order granting LEL’s motion for judgment on the evidence cannot stand because LEL failed to raise the common enemy doctrine as an affirmative defense in the pleadings and at trial. B&B also argues that the trial court misconstrued the evidence and improperly applied the common enemy doctrine in these circumstances. Moreover, B&B maintains that the trial court erred in determining that LEL did not commit an act of trespass as a matter of law and that the evidence clearly demonstrated that LEL breached a duty that it owed to it.

We conclude that the defense of the common enemy doctrine was properly raised and presented at trial. However, we find that the trial court erred in determining that that B&B’s action was barred by the common enemy doctrine and that its claims against LEL should have been permitted to proceed. Thus, we reverse the trial court’s grant of LEL’s motion for judgment on the evidence and remand for further proceedings consistent with this opinion. * * *

In light of our discussion above, we conclude that the issues pertaining to groundwater and surface water that related to the common enemy doctrine were tried by the parties’ consent, even though LEL did not raise the doctrine as an affirmative defense. Moreover, because the water in question in this instance was groundwater, B&B’s action against LEL was not precluded by the common enemy doctrine. B&B presented sufficient evidence in its case-in-chief establishing that LEL undertook a duty and breached that duty by not stopping the propagation of wetland species that culminated in the establishment of the wetlands on B&B’s parcel. Finally, we conclude that B&B presented sufficient evidence to support a claim for its causes of action against LEL. Thus, the trial court erred in granting LEL’s motion for judgment on the evidence.

In Hannah Lakes v. Grange Mutual Casualty Company , an 18-page opinion reversing the trial court finding that no uninsured motorist coverage was available to plaintiff, Judge Riley concludes:
We are mindful that courts may assume that an enactment of the Legislature changing a statute was a response to an interpretation placed upon that statute by the courts. Huff v. Biomet, Inc., 654 N.E.2d 830, 834 (Ind. Ct. App. 1995). In that regard, when the Legislature replaces the provision of an act which has been construed by the courts, it is presumed that it is responding to those appellate decisions which construed the legislation. Egan v. Bass, 644 N.E.2d 1272, 1274 (Ind. Ct. App. 1994).

It is evident that in the years since its inception, Indiana’s uninsured/underinsured motorist statute has undergone significant modification, culminating into an expansion of the underinsured liability coverage. See DePrizio, 705 N.E.2d at 461. We find that this history of expanding the availability of uninsured and underinsured motorist coverage manifests an intent by our Legislature to give insureds the opportunity for full compensation for injuries inflicted by financially irresponsible motorists. Thus, for the 1994 amendment to have any purpose, both the per person limit and per accident limit for underinsured coverage must be read as being $50,000 per person; reading the provision otherwise would make the coverage illusory as discussed in Richie. See Richie, 540 N.E.2d at 30-31. Accordingly, today, we expressly disagree with Petty, which lowered the UIM coverage to $25,000 per person and placed claimants back in the position they held between 1988 and 1994 when claimants paid a premium for mandatory UIM coverage that was illusory and allowed insurance companies to receive a windfall by collecting premiums without carrying the corresponding risk of loss. Because we now hold that the mandatory per person limit for underinsured coverage pursuant to I.C. § 27-7-5-2 is $50,000, we conclude that Hannah’s available UIM coverage under Grange Mutual’s coverage is $44,900.

Based on the foregoing, we conclude that Hannah is entitled to underinsured motorist coverage under Grange Mutual’s policy for an available per person limit of $44,900.Reversed.

In Derrick Smith v. State of Indiana , a 10-page opinion, Judge Crone writes:
Derrick Smith was charged with multiple drug offenses. At each of the first three hearings in his case and before he was represented by counsel, Smith orally moved for a speedy trial pursuant to Indiana Criminal Rule 4(B). The trial court noted his requests and recommended that he consult an attorney and have the attorney file a written motion. After seventy days passed, Smith filed a “Motion to Dismiss” seeking discharge pursuant to Indiana Criminal Rule 4(B). Appellant’s App. at 39. The trial court released him from incarceration, but did not dismiss the charges because it found that Smith had failed to object to the setting of his trial outside the seventy-day period. Smith ultimately was convicted of conspiracy to commit dealing in cocaine and was sentenced. Smith now appeals, arguing that the trial court erred by not dismissing the charges. The State contends that Smith waived the Criminal Rule 4(B) issue because he did not object to his trial setting and did not file a written motion. We conclude that Smith did not waive this issue. Because the charges should have been dismissed, we vacate his conviction.
In Tommie L. Dye v. State of Indiana , a 7-page opinion, Judge Riley writes:
Appellant-Defendant, Tommie L. Dye (Dye), appeals his conviction for failure to register as a sex offender, a Class C felony, Ind. Code § 11-8-8-17. We reverse. * * *

Given the fact that Dye is illiterate, was not assisted when registering, and complied with I.C. § 11-8-8-12(c) by appearing in person every seven days, we find that the evidence is insufficient to convict him of failing to register as a sex offender.

In David E. Schalk v. State of Indiana , a 10-page opinion involving a self-represented attorney, Judge Najam writes:
David E. Schalk appeals his conviction for Attempted Possession of Marijuana, as a Class A misdemeanor, following a bench trial. Schalk, an attorney, arranged a drug buy with a State witness. His ostensible purpose was to prove that the witness, a confidential informant, was actively dealing drugs and, thus, to discredit the witness who was scheduled to testify against his client at trial. Schalk contends that his conduct did not constitute a criminal offense because he was acting only in the defense of his client, that he did not intend to take possession of the drugs but only to deliver the drugs to law enforcement or the court for use at his client’s trial, and, further, that his conduct was no different than that of prosecutors, police officers and confidential informants when they plan and execute a controlled drug buy. Schalk asserts numerous grounds for error with a common theme, namely, that his conduct was lawful and that the evidence was insufficient to support his conviction. We affirm.
NFP civil opinions today (6):

Term. of Parent-Child Rel. of K.S.; T.S. & R.D. v. IDCS (NFP)

M.A.G. v. J.G. (NFP)

Rebecca Zoborosky v. Brian Zoborosky (NFP)

The Paternity of M.C.; A.H. . M.C. (NFP)

Gregory Sausaman v. Jennifer (Hutchens) Sausaman (NFP)

Angela L. Bauer v. David B. Bauer (NFP)

NFP criminal opinions today (11):

Jezrael Vaughn v. State of Indiana (NFP)

Terrence T. Miller v. State of Indiana (NFP)

Eric Markwith v. State of Indiana (NFP)

Khaleeq Williams v. State of Indiana (NFP)

Barry Johnson v. State of Indiana (NFP)

Tyrone Jones v. State of Indiana (NFP)

D.H. v. State of Indiana (NFP)

Constance Phillips v. State of Indiana (NFP)

Merritt A. Salyer v. State of Indiana (NFP)

Gregory Jacob v. State of Indiana (NFP)

Eric Daniels v. State of Indiana (NFP)

Posted by Marcia Oddi on February 28, 2011 12:41 PM
Posted to Ind. App.Ct. Decisions