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Friday, June 10, 2011

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

For publication opinions today (3):

In Liberty Country Club v. Landowners of Country Club Estates , an 11-page opinion, Judge Mathias writes:

Liberty Country Club (“Liberty”) filed a complaint for declaratory judgment in Union Circuit Court against the Landowners of the Country Club Estates Housing Development (collectively “the Homeowners”) seeking a declaration that under the terms of a covenant applicable to the development, Liberty was not required to expend funds to maintain the purity of the water it provides to the Homeowners. After the parties filed cross-motions for summary judgment, the trial court entered summary judgment in favor of the Homeowners and concluded that under the terms of the covenant, Liberty is required to provide potable water to the Homeowners in the development. Liberty appeals and argues that the trial court erred in interpreting the covenant. After months of unsuccessful appellate mediation ordered by this court, we now review this case on the merits and affirm the trial court in all respects. * * *

The evidence establishes Liberty’s intent to provide potable water to the Homeowners when it covenanted that the Homeowners would have “use of the club’s water so long as same is available.” After Liberty’s course of conduct for over thirty years, a time during which it could have taken the necessary steps to connect to a municipal or public utility and during which it enjoyed the benefits of the residential real estate development driven in part by free potable water it provided to the Homeowners, it cannot now rely upon its restrictive interpretation of the covenant at issue. For all of
these reasons, we conclude that the trial court properly granted the Homeowners’ motion for summary judgment.

In Brenda Bell v. Grandville Cooperative, Inc., et al. , a 14-page opinion, Judge Barnes writes:
Brenda Bell appeals the trial court's grant of summary judgment in favor of Grandville Cooperative, Inc., and Kirkpatrick Management Company, Inc. (collectively “Grandville”), in her personal injury negligence action against Grandville. We reverse and remand.

The sole restated issue is whether there is a genuine issue of fact as to whether Grandville breached a duty owed to Bell. * * *

Although there appear to be no Indiana cases with a fact pattern identical to this one, we discovered a highly-similar case from Missouri, Braun v. George C. Doering, Inc., 907 S.W.2d 371, 373 (Mo. Ct. App. 1995), error denied. Missouri, much like Indiana, requires that before a landlord may be held liable for failing to correct a hazardous situation on the premises, including weather-related situations, the landlord must have had either actual or constructive knowledge of the condition and have had sufficient time to correct the condition. Braun, 907 S.W.2d at 373. Missouri also recognizes, as do our courts, that “[a] landlord is not the absolute insurer of his or her premises.” Id. * * *

For all practical purposes, the facts in Braun are virtually indistinguishable from the facts here. Additionally, although the Missouri court's decision is not binding authority, it is highly persuasive, given the virtually identical standards for landlord liability in Missouri and Indiana. We also keep in mind that whether there has been a breach of duty in a negligence action generally is a question of fact inappropriate for resolution by summary judgment, unless the facts are undisputed and only one inference can be drawn from those facts. * * *

There is an outstanding question of material fact as to whether Grandville breached its duty to Bell to maintain the apartment complex premises in a reasonably safe condition. We reverse the trial court's grant of summary judgment in Grandville's favor and remand for further proceedings consistent with this opinion.

In State of Indiana v. Gerald Foster , an 8-page opinion where the concurring opinion carefully distinguishes the result from the Supreme Court's decision last month in Barnes v. State, Sr. Judge Garrard writes:
The State appeals the trial court's grant of Defendant Gerald Foster's motion to suppress. We affirm.

On December 14, 2009, Detective Brian Martin of the Fort Wayne Police Department supervised a confidential informant's alleged controlled buy of cocaine from Foster. On the morning of January 4, 2010, twenty-one days after the controlled buy, Detective Jean Gigli and Detective Angie Reed went to Foster's apartment to arrest him at Martin's request. The detectives did not have an arrest warrant. Gigli “pound[ed]” on Foster's door, awakening Foster and his girlfriend. Tr. p. 35. When Foster asked who was at the door, Gigli identified himself as a police officer and asserted that he was investigating a “911 hang up.” Tr. p. 35. Foster and his girlfriend told the officers through the door that they were at the wrong apartment, but Gigli said that he wanted to speak to them to make sure everything was okay. The State concedes that there was no report of a 911 call, and that Gigli's statements were a ruse.

When Foster's girlfriend opened the door, Gigli and Reed came into the apartment and handcuffed Foster. Gigli watched Foster and his girlfriend while Reed searched the apartment. Next, Gigli read Foster his Miranda advisements and transported him to the police station. While he was in the car with Gigli, Foster made inculpatory statements. At the station, Gigli brought Foster to an interview room and again read Foster the Miranda advisements. Foster signed a waiver of rights form. Next, Gigli and Martin questioned Foster, who made additional inculpatory statements. After the detectives questioned Foster at the station, Martin sought and obtained a warrant for Foster's arrest.

The State charged Foster with dealing in cocaine, a Class A felony. Ind. Code § 35-48-4-1 (2006). Foster filed a motion to suppress, alleging that the warrantless arrest violated his protections against illegal search and seizure under the federal and state constitutions. After a hearing, the trial court granted Foster's motion, determining that “the officer acted in violation of the defendant's rights when he lured him into the threshold of his home.” Appellant's App. p. 60. Consequently, the trial court ordered suppressed “any evidence obtained as a result of the illegal arrest of the defendant.” Id. Subsequently, the State sought and received permission to dismiss the case without prejudice, and this appeal followed. * * *

Balancing the three factors set forth in Litchfield, under the totality of the circumstances the officers' warrantless entry and in-home arrest of Foster was unreasonable and violated Article I, Section 11 of the Indiana Constitution. See Trotter v. State, 933 N.E.2d 572, 581 (Ind. Ct. App. 2010) (determining that the officers' warrantless entry into the defendant's barn violated the Indiana Constitution where the degree of the officers' intrusion was high and there were no exigent circumstances to justify the intrusion).

The question then becomes whether the statements in Gigli's car and at the police station should be suppressed. * * *

The connection between the arrest and the securing of statements discloses near constant interaction and exploitation of the arrest and precludes a finding of attenuation. The trial court did not err by excluding the statements. Affirmed.

NAJAM, J., concurs. MAY, J., concurs in result with separate opinion:

I concur, but feel it is important to distinguish the facts before us from those in Barnes v. State, 946 N.E.2d 572, (Ind., 2011), where our Indiana Supreme Court addressed illegal home entry by police.

Foster, like Barnes, was arrested in his home without a warrant. Unlike Barnes, Foster did not resist. Instead, after his arrest, Foster made incriminating statements in the police car and at the station. Barnes was appealing his right to resist in his own home, while Foster is challenging the admissibility of the evidence collected after police allegedly entered his home illegally.

The Barnes Court “decline[d] to recognize a right to resist unlawful police entry into a home” and “decline[d] to recognize a right to batter a police officer as part of that resistance.” Barnes, 946 N.E.2d at 576. Because there was no right to resist police entry, the Barnes Court said, “we need not decide the legality of the officers' entry into Barnes's apartment.” Id. at 577.

As our Supreme Court did not address the legality of the entry and as Barnes did not argue the suppression of any evidence gleaned from the alleged illegal entry, the decision in Barnes does not control the case before us. Instead, Foster addresses the nature of the relief available when the State violates the Fourth Amendment.

NFP civil opinions today (2):

Wells Fargo Bank, N.A. v. Reed Hodges, et al. (NFP)

Martha Tichenor v. Dana Dodson (NFP)

NFP criminal opinions today (5):

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

Harold L. Tice v. State of Indiana (NFP)

Walter L. Walker v. State of Indiana (NFP)

Matthew Fearnow v. State of Indiana (NFP)

Leland Stephens v. State of Indiana (NFP)

Posted by Marcia Oddi on June 10, 2011 12:40 PM
Posted to Ind. Sup.Ct. Decisions