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Monday, July 30, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP) [links corrected]

For publication opinions today (2):

In The Peniel Group, Inc. and Beech Grove Holdings, LLC v. Elizabeth Bannon, Kenneth G. Schaefer, Linda A. Schaefer, Norma Thinnes, Betty Benefiel, Janet Beeler, Charles Dodson and Beth Dodson, a 16-page opinion, Sr. Judge Darden writes:

Benefiel denied ever operating a dry cleaning business at the Site and therefore asserted that she was not a proper party to either the Dodsons’ or Beech Grove Holdings’s actions. Benefiel, however, admitted that dry cleaning chemicals were used at the Site. She also raised as an affirmative defense that any claims were barred by the statute of limitations.

On August 11, 2010, Beech Grove Holdings filed a motion for partial summary judgment as to liability only. The Dodsons filed a cross-motion for summary judgment, asserting that the six-year statute of limitations provided by Indiana Code section 34-11-2-7 barred the complaint. The Dodsons argued that the statute of limitations began to run on February 28, 1998, when the Environmental Legal Action (“ELA”) statutes found under Article 30 of Title 13 of the Indiana Code became effective. The Dodsons asserted that the claim accrued on that date because Beech Grove Holdings, or its predecessors, discovered, or could have discovered, that the Site had been contaminated prior to the effective date of the ELA. The Dodsons further argued that Beech Grove Holdings failed to designate evidence that the Dodsons “caused or contributed to the release of a hazardous substance into the surface or subsurface soil or groundwater as required by the ELA.” * * *

According to the designated evidence, Churchman Hill Associates, the predecessor-in-interest, became aware of the contamination as early as 1997, and certainly no later than 2000, the year ATC prepared a second environmental assessment of the Site on behalf of, and reported the detection of PCE and TCE in soil and groundwater samples to, Churchman Hill Associates. Thus, Beech Grove Holdings’s predecessor-in-interest knew of the contamination of the Site for at least eight years before Beech Grove Holdings commenced the action. We therefore find that Beech Grove Holdings is barred from bringing its claim under the ELA. Accordingly, the Appellees are entitled to summary judgment as a matter of law. Because this issue is dispositive, we need not address Beech Grove Holdings’s argument that the trial court “erred in finding that no genuine issues of material fact remain regarding whether the Dodsons ‘caused or contributed’ to the release of the hazardous substance at the Site.” Affirmed.

In State of Indiana v. Raymond P. Coleman , a 5-page opinion, Sr. Judge Garrard writes:
The State moved to dismiss its case against Raymond Coleman after the trial court declined to find the alleged victim unavailable so as to permit the State to enter her deposition testimony into evidence. The trial court granted the motion to dismiss, and the State now appeals the adverse evidentiary ruling. Concluding that the State has no statutory authorization to bring this appeal, we dismiss. * * *

For the reasons stated, we dismiss the attempted appeal.

NFP civil opinions today (5):

Jeffery Alholm v. Rebecca (Alholm) Allen (NFP)

Bruce A. Craig v. Cynthia E. Craig (NFP)

Fortune Management, Inc. v. Design Collaborative, Inc. (NFP)

Katie C. Graber v. Dale Graber (NFP)

Barbara A. Johnson and William T. Johnson, both individually and as trustees of the Barbara A. Johnson Living Trust Dated 12-17-1996 v. Joseph Wysocki and M. Carmen Wysocki (NFP)

NFP criminal opinions today (5):

Scott Robertson v. State of Indiana (NFP)

Lawrence Ray Holley, II v. State of Indiana (NFP)

Elex Baltazar v. State of Indiana (NFP)

Michael Mangan v. State of Indiana (NFP)

James L. Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on July 30, 2012 02:04 PM
Posted to Ind. App.Ct. Decisions