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Wednesday, November 16, 2011

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Geneva-Roth Capital, Inc., et al. v. Akeala Edwards , a 15-page opinion, Judge Friedlander writes:

Geneva-Roth Ventures, Inc. d/b/a LoanPoint USA (LoanPoint USA) appeals from the trial court’s denial of its Motion to Stay Proceedings and Compel Arbitration in a putative class action lawsuit filed by Akeala Edwards on behalf of herself and a purported class of Indiana residents who obtained small, short-term pay-day loans from LoanPoint USA. LoanPoint USA presents the following issue for our review: Did the trial court err in denying LoanPoint USA’s motion to compel arbitration on the basis of impossibility of performance? We affirm. * * *

Having concluded that the NAF [National Arbitration Forum]as the arbitral forum was integral to the arbitration agreement, and given that the NAF is no longer available to conduct consumer arbitrations, the arbitration provision is null and void on grounds of impossibility. Section 5 does not save the arbitration provision and cannot be used as a mechanism to appoint a substitute arbitrator. The trial court did not err in denying LoanPoint USA’s motion to compel arbitration.

In Green River Motel Management of Dale, LLC, et al. v. State of Indiana, a 13-page opinion, Judge Bradford writes:
Appellant-Defendant Green River Motel Management of Dale, LLC (“GRMM”), appeals from a judgment in its favor in the amount of $288,000 following Appellee-Plaintiff the State of Indiana‟s taking of 3.983 acres of GRMM‟s land. * * *

On June 4, 2009, GRMM filed for summary judgment, asking the trial court to rule as a matter of law that the proper measure of damages to which it was entitled was the difference between value of the entire parcel before the taking and after. In the memorandum attached to the summary judgment motion, GRMM argued that the economic impact on its business resulting from moving the interchange amounted to a compensable taking under the United States and Indiana constitutions. On January 28, 2010, the trial court denied GRMM‟s summary judgment motion. * * *

GRMM contends that the alteration of access to its property caused by the relocation of the interchange resulted in losses such that a taking has occurred and that it designated undisputed evidence to that effect, entitling it to summary judgment. In essence, this is an inverse condemnation claim, although not designated as such. “Inverse condemnation is a process provided by statute that allows individuals to be compensated for the loss of property interests taken for public purposes without use of the eminent domain process.” Ctr. Townhouse Corp. v. City of Mishawaka, 882 N.E.2d 762, 770 (Ind. Ct. App. 2008) (citing Ind. Code § 32-24-1-16), trans. denied.

“It has long been recognized that the right of ingress and egress is a property right which cannot be taken without compensation.” Jenkins v. Bd. of Cnty. Comm’rs of Madison Cnty., 698 N.E.2d 1268, 1270 (Ind. Ct. App. 1998), trans. denied. On the other hand, however, “although an elimination of rights of ingress and egress constitutes a compensable taking, the mere reduction in or redirection of traffic flow to a commercial property is not a compensable taking of a property right.” Kimco, 902 N.E.2d at 214. “The general rule is that there is no property right of an abutting property owner in the free flow of traffic past his property and thus no compensation can be claimed if traffic is diverted from his premises or made to travel a more circuitous route.” * * *

Here, GRMM designated no evidence in support of its summary judgment motion tending to show that any interference to ingress or egress occurred by virtue of State action. The means of ingress/egress is as it ever was–from the road that was formerly U.S. 231 and now is Old U.S. 231. At most, the designated evidence tends to show that motorists would have to travel a more circuitous route to reach GRMM‟s property, but as Kimco makes clear, this is insufficient to establish a taking. GRMM designated a great deal of evidence that its Motel 6 business has been significantly damaged by the relocation of the interchange, and we have no reason to doubt that this is true. Such damage is, however, not compensable if it is due solely to diverted traffic as a matter of law, and that is all that GRMM‟s designated evidence indicates. * * *

The judgment of the trial court is affirmed.

ROBB, C.J., concurs.
BARNES, J., concurs with opinion: I write to concur in full and to acknowledge the precedent our supreme court articulated in State v. Kimco of Evansville, Inc., 902 N.E.2d 206 (Ind. 2009). As the author of the Court of Appeals decision reversed by that opinion, one does not have to be Carnac to realize I disagree. However, our supreme court has spoken, and I concur.

NFP civil opinions today (1):

Roy M. Strong and Independent Associates, Inc. v. Bertha McKinster, individually and as Attorney in fact for, Robert McKinster (NFP)

NFP criminal opinions today (10):

Daniel Stevenson v. State of Indiana (NFP)

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

Willie Andrew Alsanders v. State of Indiana (NFP)

Lewis R. Ross, Jr. v. State of Indiana (NFP)

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

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

Michael K. Boone v. State of Indiana (NFP)

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

Justin B. Troxell v. State of Indiana (NFP)

Elvis A. Hall v. State of Indiana (NFP)

Posted by Marcia Oddi on November 16, 2011 01:02 PM
Posted to Ind. App.Ct. Decisions