Friday, March 30, 2012
Ind. Decisions - Court of Appeals issues 7 today (and 13 NFP)
For publication opinions today (7):
In Kristine A. and Larry G. Dawson v. Fifth Third Bank, a 13-page opinion, Judge Darden concludes:
Given the stipulated facts presented in this case, we cannot say that the Dawsons have met their burden of proving that they were entitled to summary judgment. Aside from the fact that they have cited little to no caselaw to support their arguments, they have failed to show that Fifth Third’s acts or omissions were responsible for their loss by purchasing the Motorcycle without knowledge of Fifth Third’s lien to the extent that equity should be granted to them. Accordingly, we affirm the trial court’s denial of the Dawsons’ motion for summary judgment.In Lewis J. Richardson and Laurel Richardson v. Board of Commissioners of Owen County, an 11-page opinion, Judge Baker writes:
Today we consider whether the petitioners were aggrieved parties and had standing to challenge the County Commissioners’ decision to vacate a portion of a roadway that provided an access to a cemetery where their daughter was buried. We hold that the petitioners did not suffer a special or unique injury above that which the general public sustained. Moreover, the evidence established that there were alternate entrances to the cemetery so the petitioners were not hindered within the meaning of the statute from gaining access to their daughter’s grave. Thus, the petitioners were not entitled to challenge the County Commissioners’ decision to vacate a portion of the roadway.In Imperial Insurance Restoration & Remodeling, Inc. v. James Costello, an 11-page opinion, Judge Bailey concludes:
Appellants-petitioners Lewis and Laurel Richardson (collectively, the Richardsons), appeal the trial court’s judgment that vacated a portion of a roadway, in favor of the Board of Commissioners of Owen County (Commissioners). More particularly, the Richardsons maintain that the trial court erred in determining that they were not aggrieved parties and, therefore, could not appeal the vacation ordinance under Indiana Code section 36-7-3-12(f).
We conclude that because the Richardsons are not abutting landowners to the vacated roadway, the trial court correctly determined that they lacked standing as an aggrieved party to remonstrate against the vacation of the roadway. In other words, the Richardsons have failed to demonstrate that they have sustained an injury that is unique or special to them.
Although Imperial provided a contract to Costello that it concedes did not satisfy requirements of HICA, that non-compliance did not automatically render the contract void. Instead, the issue required examination of several factors to determine whether the contract should be enforced. After examining those factors, we conclude that the contract is enforceable and should not be voided. Imperial has thus demonstrated prima facie error in the trial court's judgment. It is reversed and remanded with instructions to enter judgment in favor of Imperial for $669.86 and to hold a hearing to determine the contractual interest due on the contract and whether attorney fees or other costs are warranted and, if so, in what amount. Reversed and remanded.In Steinrock Roofing & Sheet Metal Inc. v. James S. McCulloch, PNC Bank, N.A., a 17-page opinion, Judge Baker writes:
After the defendant-homeowner’s roof was severely damaged in a windstorm, the plaintiff-contractor undertook to repair the damages. The homeowner failed to pay the entire amount due under the contract because of the contractor’s allegedly deficient workmanship. The contractor sued and the homeowner counterclaimed. Substantial evidence was presented at trial establishing that the contractor’s work was deficient in a number of respects. And the trial court, as the fact finder, properly awarded damages to the homeowner on his counterclaim. The trial court also properly concluded that the contractor had waived any claim to reduce the damage award under the Home Improvement Warranties statute.In D.C. v. J.A.C., a 12-page opinion, Judge Baker writes:
Appellant-plaintiff Steinrock Roofing & Sheet Metal, Inc. (Steinrock), appeals the trial court’s judgment entered in favor of appellee-defendant James S. McCulloch, and PNC Bank, N.A.1 Specifically, Steinrock argues that the trial court erred in excluding discovery and the potential testimony of an insurance agent who inspected the work and made the payments for repairs on the roof. Steinrock also maintains that the trial court should have found in his favor on his defamation claim and that the trial court erred in finding a material breach of contract by Steinrock. Moreover, Steinrock argues that the trial court should have limited McCulloch’s damages to the difference in fair market value in accordance with Indiana Code section 32-27-1-14, the Home Improvement Warranties statute.
Concluding that the trial court correctly determined that Steinrock breached the contract, properly awarded damages to McCulloch, and finding no other error, we affirm.
In this case, a mother was offered a director-level position at a hospital near Nashville, Tennessee. Not only was this advanced position essentially unavailable to her in the Indianapolis market, but it also came with a salary increase of over $30,000. Nevertheless, when her ex-husband filed a motion to modify custody and prevent her from relocating with their son, the trial court found in his favor, focusing heavily on the mother’s personal relationship with her boyfriend and the father’s reduced parenting time if the mother relocated with their son. We conclude that this was clearly erroneous, inasmuch as it virtually ignored the immense benefit that the mother’s new position would bring to her and the child. Moreover, any move of significant distance is going to deprive the nonrelocating parent of time with their child; however, this fact alone does not mean that the relocation is not in the child’s best interest.In Clark County Drainage Board and Clark County Board of Commissioners v. Robert Isgrigg, a 5-page opinion on motion for rehearing, Judge Najam writes:
D.C. (Mother) appeals the trial court’s order granting J.A.C.’s (Father) motion to modify custody and prevent Mother from relocating with their minor child, B.C. Specifically, Mother argues that although the trial court properly applied the burden shifting analysis contained in the Relocation Statute, the trial court improperly concluded that relocation alone was sufficient to show that it was in B.C.’s best interest to remain in Indiana.
Father cross-appeals, contending that he is entitled to appellate attorney fees because Mother’s argument on appeal is frivolous, and she has failed to adequately follow the appellate rules. Concluding that Father is not entitled to appellate attorney fees and that inasmuch as relocation alone cannot be used as a reason to support a custody modification, we reverse and remand with instructions that the trial court be mindful of the relocation when establishing Father’s parenting time.
Robert Isgrigg files a petition for rehearing from our opinion in which we affirmed in part and reversed in part the trial court's entry of summary judgment for Isgrigg. In his petition, Isgrigg contends that our conclusion that the Sunset Hills project did not involve a regulated drain is erroneous for four reasons, two of which we consider on rehearing. For the reasons discussed below, neither of Isgrigg's assertions on rehearing are meritorious. We affirm our prior opinion in all respects.
Carolyn Boss v. State of Indiana - "As to Boss's character, it appears that her criminal history consists only of a conviction for driving with a suspended license.' She also expressed remorse during the sentencing hearing. Moreover, the victims stated that they did not want anything bad to happen to Boss, and the State recommended home detention. While we acknowledge the victims' statements as well as the State's recommendation, and Boss's character notwithstanding, it is the nature of the offenses that is critical to our review of her sentence.
"As to Boss's offense, her failure to adequately restrain three dogs resulted in catastrophic injuries to two people. Furthermore, the testimony presented indicates that this was not the first occasion Boss's dogs ran loose. In light of these factors, we find that Boss's sentence of one year in jail for each count of failure to restrain a dog is appropriate."
NFP civil opinions today (4):
State of Indiana, Little Calumet River Basin Development Commission v. Gary Murphy and Lake County Treasurer (NFP) - NWI Times story here, headed "Little Cal easement worth $300,000."
NFP criminal opinions today (9):
Posted by Marcia Oddi on March 30, 2012 03:37 PM
Posted to Ind. App.Ct. Decisions