« Courts - Federal Court Rules That Police Cannot Use Warrants to Obtain Cell Phone Location of Person Who is Subject of Arrest Warrant | Main | Ind. Courts - "Changes Proposed to Marion Criminal Law Local Rules" »

Tuesday, August 09, 2011

Ind. Decisions - Court of Appeals issues 6 today (and 21 NFP)

For publication opinions today (6):

In Indiana-Kentucky Electric Corp., et al. v. Save the Valley, et al. , a 14-page opinion in a case familiar to Indiana environmental attorneys, the issue again is associational standing. Judge Vaidik writes:

Indiana-Kentucky Electric Corp. (IKEC) received a solid waste permit to operate a landfill, and several environmental groups, Save the Valley, Inc., Hoosier Environmental Council, Inc., and Citizens Action Coalition of Indiana, Inc. (collectively “Citizens Groups”), filed a petition for review of the permit. A dispute then arose over whether Citizens Groups had standing to challenge IKEC's permit. As a matter of first impression, this Court, relying in part on a recent Indiana Supreme Court decision, held that Citizens Groups could seek administrative review under the doctrine of associational standing. Save the Valley, Inc. v. Indiana-Kentucky Elec. Corp., 820 N.E.2d 677 (2005). The case was remanded to the administrative agency. After IKEC was successful on the merits of the permit, it sought to relitigate the issue of associational standing. We, however, find that the law-of-the-case doctrine bars it from doing so and affirm the trial court. * * *

The issue in Save the Valley I was whether Citizens Groups had standing to challenge IKEC's permit and therefore whether the OEA had subject matter jurisdiction, not whether any procedural requirements were satisfied. Although we used the phrase “jurisdiction over the case,” we used it just like the Supreme Court meant—that the OEA had jurisdiction over the general class of actions to which the case belonged. K.S. did not abrogate Save the Valley I's discussion of associational standing, and it is therefore not an extraordinary circumstance under the law-of-the-case doctrine. We affirm the trial court.

Brian Haehl v. David Montgomery and Phyliss Crumbo is a 28-page opinion, where the issues are:
I. Whether the court abused its discretion when it removed Haehl as trustee and, upon modifying the trust, appointed Crumbo as successor trustee; and
II. Whether the court abused its discretion when it awarded attorney fees in favor of the Appellees and denied Haehl's request for additional compensation and attorney fees.
In Joseph A. Kelley v. Jagdish Patel, Jayandra Patel, d/b/a Economy Inn and Indiana Insurance , a 13-page opinion, Chief Judge Robb writes:
After the death of William D. Feit, Jr. as a result of a motel fire, Joseph A. Kelley, the administrator of Feit’s estate (the “Estate”) filed suit against the motel’s owners and the motel’s liability insurer, Indiana Insurance Company. The Estate appeals the trial court’s entry of summary judgment in favor of Indiana Insurance on the Estate’s claim of spoliation of evidence. The Estate raises one issue on appeal, which we restate as whether the Estate has an available third-party cause of action against Indiana Insurance for spoliation of evidence. Concluding that a cause of action is not available under the facts of this case, we affirm. * * *

We do not hold that third-party spoliation claims could never be available against a liability insurer where death or serious injury resulted on the insured’s business premises. Yet, as the above discussion of Indiana cases illustrates, our courts recognize spoliation of evidence as an independent tort only in narrow circumstances where a relationship exists between the claimant and the third party sought to be held responsible for a failure to preserve evidence.

In Steven Buse, Kathleen Payne, et al. v. Trustees of the Luce Township Regional Sewer District, a 12-page opinion, Judge Najam writes:
Steven Buse, Kathleen Payne, Stephen Payne, Peter Cetas, Tommy Johnson, Cynthia Johnson, and Alan Stephens (“the Property Owners”) bring this interlocutory appeal from the trial court's order in which the court concluded that their lawsuit against the Trustees of the Luce Township Regional Sewer District (“the Sewer District”) is a public lawsuit that cannot proceed until the Property Owners have posted a $9 million bond. The Property Owners raise two issues for our review, which we restate as the following dispositive issue: whether the trial court properly concluded that four counts of the Property Owners complaint constitute a public lawsuit against the Sewer District pursuant to Indiana Code Section 34-6-2-124. We hold that the public lawsuit statute does not apply and, accordingly, we reverse and remand for further proceedings. * * *

The critical factor is not whether the claims have some public importance but what the interests are that the plaintiffs seek to protect. * * * In other words, the Property Owners' action against the Sewer District is “an action by individual landowner[s] seeking to protect [their] private interest[s] in property” and, therefore, “does not constitute the basis for a public lawsuit.”

In Stephen M. Scheckel v. NLI, Inc. , an 8-page opinion, Judge Kirsch writes:
Stephen M. Scheckel (“Scheckel”) appeals from the trial court’s order granting judgment in favor of NLI, Inc. (“NLI”), in his small claims action against NLI, the owner of adjoining real estate, for damages sustained to his property caused by the growth of a tree trunk and roots located on NLI’s property. * * *

Indiana has long recognized the right of landowners to recover damages to their property caused by trees growing on an adjoining property as a private nuisance. In Toledo, S.L. & K.C.R. Co. v. Loop,139 Ind. 542, 39 N.E. 306, 307 (1894), our Supreme Court held that in the event of trees growing so close to the boundary line between two properties that its branches encroach on the adjoining premises, the adjoining landowner may have an action for damages in nuisance if injury were shown. The decision in Loop was followed nearly forty years later by this court in Luke v. Scott, 98 Ind. App. 15, 187 N.E. 63, 64 (1933).

The trial court erred by applying the Restatement’s natural condition rule to the facts of this case. Accordingly, we reverse its judgment in favor of NLI and remand for the entry of judgment consistent with this opinion.

In Bethany Quiring, Linda Ann Johnston f/k/a Linda Ann Lougher, et al. v. Geico General Insurance Company, a 26-page opinion, Chief Judge Robb writes:
Bethany Quiring was injured in an automobile collision in Oklahoma. She filed suit in Oklahoma against the other driver for negligence and GEICO General Insurance Company (“GEICO”), seeking underinsured motorist benefits under a GEICO policy issued to Quiring's mother, who lives in Indiana. GEICO then filed this declaratory judgment action in Indiana, seeking a declaration that Quiring was not a resident of her mother's Indiana household and as such was not covered by her mother's policy. The trial court granted GEICO summary judgment. Quiring appeals, raising the following restated issues for our review: 1) whether the trial court abused its discretion in denying Quiring's motion to dismiss or stay the declaratory action in view of the pending, previously filed lawsuit in Oklahoma; 2) whether the trial court abused its discretion in denying Quiring's motion for a continuance of the summary judgment hearing to conduct discovery; 3) whether the trial court properly granted summary judgment that Quiring was not a resident of her mother's Indiana household; and 4) whether the trial court properly granted summary judgment that Quiring's mother's policy is an Indiana policy.

We conclude the trial court did not abuse its discretion in denying Quiring's motion to dismiss or stay, the designated evidence establishes as a matter of law that Quiring was not a resident of her mother's household at the time of the collision, and our resolution of these two issues renders the remaining issues immaterial. We therefore affirm the trial court's summary judgment.

NFP civil opinions today (7):

Michelle Hager v. Robert and Sue Faris (NFP)

Gabriel L. Hill v. Jana E. Hill (NFP)

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

Jennifer Curts v. David Curts (NFP)

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

The Matter of the 2008 Hancock County Tax Sale (NFP)

Robert Holland III v. Country Wide Home Loans, Inc. (NFP)

NFP criminal opinions today (14):

Michael Johnson v. State of Indiana (NFP)

Ronald Miller v. State of Indiana (NFP)

Jeremy Klakamp v. State of Indiana (NFP)

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

Danielle L. Green v. State of Indiana (NFP)

Gary Moody v. State of Indiana (NFP)

J.G. v. State of Indiana (NFP)

Beverly A. Fussner v. State of Indiana (NFP)

James Hunter v. State of Indiana (NFP)

I.M. v. State of Indiana (NFP)

Andre L. Gorman v. State of Indiana (NFP)

Terry T. Miles, Sr. v. State of Indiana (NFP)

Dean C. Williams v. State of Indiana (NFP)

Aaron Davidson v. State of Indiana (NFP)

Posted by Marcia Oddi on August 9, 2011 11:04 AM
Posted to Ind. App.Ct. Decisions