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Thursday, May 26, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Jerry French, et al. v. State Farm Fire & Casualty Company, et al. , a 22-page opinion, Judge Bradford writes:

Appellants-Plaintiffs Jerry and Becky French and Appellee-Defendant State Farm Fire & Casualty Company both appeal from the denial of their motions for summary judgment. State Farm argues that its offer to pay for another manufactured home after the Frenches' burned fulfilled its obligation under a homeowners' policy to pay the “reasonable and necessary cost” of replacing the Frenches' home with one of “similar construction.” State Farm also argues that it is entitled to rescind the policy because Jerry failed to disclose both the purchase price of the original home and that it was a manufactured home. The Frenches assert that their stick-built home constitutes “similar construction” under the policy and that they are entitled to reimbursement up to the policy limits. The Frenches also assert that State Farm is not entitled to rescind the policy because its insurance agent failed to ask about the purchase price of their original home. Additionally, the Frenches assert that they are entitled to attorneys' fees and prejudgment interest. We affirm in part, reverse in part, and remand with instructions. * * *

We affirm the trial court to the extent that it denied the parties' motions for summary judgment on the Frenches' contract claim and remand for trial on whether State Farm should be liable for the cost of their stick-built home as a reasonable and necessary cost to replace their manufactured home with one of similar construction. At trial, the Frenches may argue that additional living expenses pursuant to Coverage C, mortgage fees, and builder's risk insurance were reasonable and necessary costs of replacing their original home with one of similar construction. We remand with instructions to enter summary judgment in favor of State Farm on the question of whether they are estopped from denying coverage to the Frenches and in favor of the Frenches on the question of whether State Farm may rescind the policy due to the Frenches' concealment or failure to disclose the true value of the manufactured home. Finally, we conclude as a matter of law that the Frenches are not entitled to attorney's fees and decline to address the Frenches' claim that they are entitled to the awards of prejudgment interest as it is not yet ripe for appellate review.

In Alaska Seaboard Partners Limited Partnership v. Gerald Hood, et al. , a 15-page opinion, Judge Vaidik writes:
Saint Ivan Equity Management Corporation, a California corporation, assigned a mortgage on real estate in Avon, Indiana, to SNGC, LLC, a related company of Alaska Seaboard Partners Limited Partnership. Saint Ivan then assigned the same mortgage to Hendricks County Bank and Trust Company. Hendricks County Bank released the mortgage and deeded the real estate to Michael and Sheila McDonald, who later deeded the real estate to Normand and Linda Boutot.

SNGC filed a lawsuit in Orange County, California, alleging, among other things, that Saint Ivan improperly assigned the mortgage to Hendricks County Bank after it had already assigned it to SNGC and should not have received the $107,600 paid by Hendricks County Bank for the mortgage it no longer owned. As a result of that lawsuit, SNGC received a monetary judgment against Saint Ivan.

Alaska Seaboard, who had since been assigned the mortgage once owned by SNGC, then filed suit in Hendricks Superior Court to foreclose on the mortgage. The trial court granted summary judgment in favor of Hendricks County Bank, the McDonalds, and the Boutots. Because Alaska Seaboard’s foreclosure action is barred by the doctrines of collateral and judicial estoppel, we conclude that the trial court did not err by granting summary judgment in favor of Hendricks County Bank, the McDonalds, and the Boutots and denying Alaska Seaboard’s cross-motion for summary judgment. We further conclude that the trial court did not err by awarding attorney’s fees to Hendricks County Bank, the McDonalds, and the Boutots. We therefore affirm the trial court.

In Brian Kendrick v. State of Indiana , a 17-page opinion by Judge Friedlander, one of the issues is: "Do Kendrick’s convictions for attempted murder and two counts of feticide violate the double jeopardy clause in the Indiana Constitution, article 1, section 14?" From the opinion:
In the instant case, we find that the evidentiary facts used to establish the feticide convictions established all of the elements of the attempted murder conviction. Both convictions resulted from one act, the shooting of Shuffield in the stomach. To establish the feticide convictions, the State correctly observes that it was required to present additional evidence regarding Shuffield’s pregnancy and the resulting termination thereof. See I.C. §35-42-1-6 (“[a] person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus commits feticide”). No additional evidence, however, was required or presented to establish the attempted murder. Thus, there is more than a reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of feticide may also have been used to establish all of the essential elements of attempted murder.[8]

Having vacated Kendrick’s feticide convictions, we remand for resentencing on the remaining counts. * * *
[8.] In 2009, our legislature resolved double jeopardy problems like the one presented in this case by adding Ind. Code Ann. § 35-50-2-16 (West, Westlaw through 2011 Pub. Laws approved & effective through 2/24/2011). This statute allows the State to seek an additional fixed term of imprisonment of between six and twenty years when the State can show beyond a reasonable doubt that the defendant, while committing or attempting to commit murder, caused the termination of a human pregnancy.

NFP civil opinions today (4):

Term. of Parent-Child Rel. of A.A.; R.A. v. IDCS (NFP)

Term. of Parent-Child Rel. of J.M., et al.; M.M. v. I.D.C.S. (NFP)

Douglas McCorkle v. Alesia McCorkle (NFP)

Dennis Mysliwy v. Teresa Mysliwy (NFP)

NFP criminal opinions today (5):

Michelle D. Breedlove v. State of Indiana (NFP)

Donald E. Bunting v. State of Indiana (NFP)

Daniel R. Penticuff v. State of Indiana (NFP)

Marlon Snead v. State of Indiana (NFP)

Elysia B. Souders v. State of Indiana (NFP)

Posted by Marcia Oddi on May 26, 2011 12:33 PM
Posted to Ind. App.Ct. Decisions