Tuesday, February 07, 2012
Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)
For publication opinions today (2):
Mitchell A. McCarter v. State of Indiana - "[W]e consider the evidence necessary to prove force or threat of force for a Class D felony sexual battery conviction."
In Benjamin Crossing Homeowners' Association, Inc. v. Rose Heide and David F. Wilkerson , a 14-page opinion, Judge Najam writes:
Rose Heide and David F. Wilkerson, residents of a planned unit development in Tippecanoe County called Benjamin Crossing, filed a complaint seeking damages and a declaratory judgment that the Tippecanoe Area Building Commission and the Benjamin Crossing Homeowners' Association could not enforce a restrictive covenant to prohibit the operation of a child care home in their respective residences in Benjamin Crossing. The restrictive covenant was also incorporated into the planned unit development ordinance for Benjamin Crossing, but state law prohibits enforcement of a zoning ordinance that prohibits the operation of a child care home in a residence.NFP civil opinions today (1):
The Homeowners' Association filed a counterclaim seeking an injunction to prohibit Heide and Wilkerson from operating child care homes in their residences. The Homeowners' Association then filed a motion for summary judgment on the counterclaim. The trial court granted summary judgment in favor of Heide and Wilkerson on the Association's counterclaim, and the Homeowners' Association now appeals. The Association presents the following issue for review: whether the trial court erred when it concluded that the Homeowners' Association may not enforce restrictive covenants prohibiting the operation of a child care home in the planned unit development where the planned unit development ordinance that adopted the covenants may not be enforced under state law. We reverse and remand with instructions. * * *
In sum, we decline to hold that the County's approval of a PUD obviates the underlying contract right of the property owners, through the Homeowners' Association, to enforce the restrictive covenants against operation of a home day care in Benjamin Crossing. The restrictive covenant exists independent of the ordinance and may be enforced by the Association pursuant to the terms of the Declaration. Thus, the trial court erred when it concluded that Section 36-7-4-1108 prohibits the Association from enforcing the restrictive covenant banning the operation of businesses in residences in Benjamin Crossing.
NFP criminal opinions today (2):
Posted by Marcia Oddi on February 7, 2012 10:22 AM
Posted to Ind. App.Ct. Decisions