Wednesday, April 04, 2012
Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)
For publication opinions today (5):
In Melanie Webster v. Walgreen Co. , a 7-page opinion, Judge Crone writes:
Melanie Webster filed a complaint against Walgreen Co. by certified mail. Her first attempt at mailing the complaint was returned due to insufficient postage. By the time Webster resent and filed the complaint, the statute of limitations had run. Webster filed a motion to amend the filing date of her complaint to the date that she had originally sent the complaint, which was within the statute of limitations. The trial court denied the motion and thereafter granted Walgreen judgment on the pleadings because the complaint was untimely. Webster appeals the denial of her motion to amend the filing date. We conclude that “mailing” for purposes of the Indiana Trial Rules requires the sender to affix sufficient postage. Therefore, Webster’s complaint was not filed until her second attempt at mailing and was untimely. We affirm the judgment of the trial court. * * *In Calvin Hair v. Mike Schellenberger and Lawyers Title Ins. Corp., Wells Fargo Bank, N.A., Felix Adejare, and Sharon Adejare, a 12-page opinion, Judge Crone writes:
On December 13, 2010, Webster’s attorney, C. Stuart Carter, placed the complaint, summons, appearance, and filing fee in an envelope, which he weighed himself. Carter’s postage scale indicated that the envelope weighed six ounces. Carter used Stamps.com to determine that the appropriate amount of postage to send the envelope by certified mail was $6.83. Carter printed the stamp and deposited the envelope in the mail.
The postal service apparently reweighed the envelope and determined that it weighed slightly more than six ounces and that there was $.17 postage due. The postal service delivered the envelope to the clerk of the Morgan County Courts on December 14, 2010, and the clerk declined to pay the postage due.1 The envelope was returned to Carter on December 21, 2010, a few days after the two-year statute of limitations had run. Without opening the envelope, Carter reweighed it. His scale still read six ounces, but he decided to print a stamp for eight ounces to give himself a margin of error. Carter placed the new stamp on the envelope and resent it on December 21. The clerk received it the next day and stamped the complaint filed on December 22, 2010.
This is a dispute over who has superior title to a piece of property on Talbott Street in Indianapolis (“the Talbott Street Property”). When Mike Schellenberger purchased the Talbott Street Property at a foreclosure sale, the title search did not show a money judgment that Calvin Hair had obtained against former owners Felix and Sharon Adejare (collectively, “the Adejares”). The judgment had never been indexed in the county records, and Schellenberger was unaware of it until a year later, when Hair sent him a letter claiming that he had a judgment lien on the Talbott Street Property. Schellenberger subsequently filed an action against Hair to remove the cloud on the title. Schellenberger, his lender, and his title company (collectively, “the Appellees”) sought summary judgment on the basis that Schellenberger was a bona fide purchaser (“BFP”) as a matter of law. Hair filed a motion for partial summary judgment, seeking a declaratory judgment that the Adejares had fraudulently conveyed the Talbott Street Property and that he had a judgment lien giving him superior title.Mid-Century Ins. Co. v. Estate of Thomas Lynn Morris, by and through his personal representative, Tommy Lynn Morris, Daemen Sampson, and Dora Robinson
The trial court denied Hair’s motion for partial summary judgment and granted the Appellees’ motions for summary judgment. Hair appeals, claiming that the Adejares fraudulently conveyed the Talbott Street Property and that his judgment against the Adejares constituted a valid judicial lien of which the Appellees should have been aware. Finding that Hair’s judgment was outside the chain of title and that Schellenberger was a BFP as a matter of law, we affirm the trial court’s decision in all respects.
In Mark Todisco v. State of Indiana , a 6-page opinion, Judge Crone writes:
In March 2009, Mark Todisco was charged with disorderly conduct and intimidation based on his refusal to cooperate with police during a domestic disturbance at the home of his son and daughter-in-law. After numerous delays, his jury trial was eventually set for September 2010. In August 2010, he filed a motion for discharge under Indiana Criminal Rule 4(C), alleging that he should be discharged due to the State’s failure to bring him to trial within one year. The trial court denied his motion, and a jury found him guilty of class B misdemeanor disorderly conduct.NFP civil opinions today (4):
Todisco now appeals, claiming that the trial court erred in denying his motion for discharge. Finding that he waived this issue by failing to promptly and specifically object when the trial date was set beyond the one-year period, we affirm.
NFP criminal opinions today (5):
Posted by Marcia Oddi on April 4, 2012 11:22 AM
Posted to Ind. App.Ct. Decisions