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Monday, December 19, 2011

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Capitol Construction Services, Inc. v. Amy Gray, as Personal Rep. of the Estate of Clinton Gray and All One, Inc. , a complex 27-page opinion including a 4-page concurring opinion and multi-page footnotes, Judge Brown writes:

In this consolidated, interlocutory appeal, Capitol Construction Services, Inc. (“Capitol”) appeals the trial court’s grant of partial summary judgment in favor of Amy Gray, as personal representative of the estate of Clinton Gray (“The Estate”). Additionally, Capitol appeals the court’s denial of its cross-motion for summary judgment. Capitol raises three issues, which we consolidate and restate as: I. Whether the court erred in granting The Estate’s motion for partial summary judgment; and II. Whether the court erred in denying Capitol’s cross-motion for summary judgment. * * *

For the foregoing reasons, we affirm the trial court’s grant of partial summary judgment in favor of The Estate and denial of summary judgment in favor of Capitol. Affirmed.

BAILEY, J., concurs.
FRIEDLANDER, J., concurs with separate opinion. [which begins, at p.24] I fully concur in the decision to affirm partial summary judgment in favor of the Estate of Clinton Gray (the Estate) and deny summary judgment in favor of Capitol Construction Services, Inc. I write separately to explain my view that my vote in this case does not conflict with my vote in Hunt Constr. Grp., Inc. v. Garrett, 938 N.E.2d 794 (Ind. Ct. App. 2010), which was vacated and is currently before our Supreme Court upon the grant of Hunt Construction Group’s (Hunt’s) petition for transfer. See Hunt Constr. Grp. v. Garrett, 950 N.E.2d 1212 (Ind. 2011) (petition for transfer granted and opinion at 938 N.E.2d 794 vacated).

In Smith Barney v. Stonemor Operating LLC, et al. , a 9-page opinion on a petition for rehearing, Judge Crone writes:
Appellant Smith Barney has petitioned for rehearing of our opinion in Smith Barney v. StoneMor Operating LLC, 953 N.E.2d 554 (Ind. Ct. App. 2011), in which we affirmed the trial court's denial of Smith Barney's motion to compel arbitration against appellees Independence Trust Company (“Independence Trust”) and StoneMor Operating LLC (“StoneMor”). We grant Smith Barney's petition for the limited purpose of clarifying our analysis and affirm our original opinion. * * *

Regardless of whether a “successor trustee” may be considered a “successor in interest” for purposes of the Client Agreements, the fact remains that Independence Trust did not sign the Client Agreements. In our original opinion, we mentioned “a series of doctrines, based on 'common law principles of contract and agency law,' for binding non-signatories to arbitration agreements.” Smith Barney, 953 N.E.2d at 558 (quoting Ryan, Beck & Co., 268 F. Supp. 2d at 229); see also MAG Portfolio Consultant, GmbH v. Merlin Biomed Grp. LLC, 268 F.3d 58, 61 (2nd Cir. 2001) (summarizing those doctrines as “1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel”). In its petition for rehearing, Smith Barney does not argue, let alone establish, that any of those doctrines apply.

Based on the foregoing, we grant Smith Barney's petition for rehearing for the limited purpose of clarifying our analysis and affirm our original opinion.

NFP civil opinions today (6):

City of Muncie v. Stanley Benford (NFP)

In the Matter of the Term. of the Parent-Child Rel. of J.B., D.G., and C.W.; and D.G. v. Indiana Dept. of Child Services (NFP)

Erie Ins. Exchange as Subrogee of Welch & Wilson Properties, LLC, d/b/a Hammons Storage and Allianz Global Risks U.S. Ins. Co. v. 500 Rangeline Rd., LLC and HSM Development, Inc. (NFP)

JPMorgan Chase Bank, N.A., s/b/m Bank One, N.A. v. Mike S. Forbing, Successor Trustee of the Jack D. Forbing Revocable Trust (NFP)

Boyer Excavating Corp. v. Shook Construction and Ball State University Board of Trustees (NFP)

Magnolia Health Systems v. Review Board of the Indiana Dept. of Workforce Development and Emma J. Johnson (NFP)

NFP criminal opinions today (3):

Adrian Hulse v. State of Indiana (NFP)

Brian E. Cain v. State of Indiana (NFP)

Roger Ordonez v. State of Indiana (NFP)

Posted by Marcia Oddi on December 19, 2011 01:16 PM
Posted to Ind. App.Ct. Decisions