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Tuesday, August 07, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 6 NFP)

For publication opinions today (5):

In Warrick County, Indiana, A Political Subdivision, by and through its County Commissioners, Nova Conner, Don Williams, and Phillip Baxter, and Cincinnati Insurance Co. v. William Hill and Stacy Hill, an 11-page opinion, Judge Bradford writes:

In this interlocutory appeal, Appellant-Defendant Warrick County, Indiana, challenges the trial court’s denial of its motion for summary judgment in an action brought against it and Cincinnati Insurance Company by Appellees-Plaintiffs William Hill and Stacy Hill. Upon appeal, Warrick County claims that the trial court erred in denying summary judgment on multiple grounds. We affirm. * * *

[IV] Finally, Warrick County points to the Release Agreement the Hills signed in 2002 and claims that its terms preclude their current action. * * *

It appears that the trial court concluded the language of the Release Agreement was unambiguous and clearly did not cover structural damage caused by the heightened water table brought about by the County’s filling of the ditch. To the extent the trial court may have found an ambiguity, the denial of summary judgment demonstrates that the ambiguity could not be resolved without the aid of a factual determination.

We find no error in the trial court’s decision.

In Matthew Manuel v. State of Indiana , a 17-page opinion, Judge Riley writes:
Appellant-Defendant, Matthew Manuel (Manuel), appeals his conviction for domestic battery, a Class D felony, Ind. Code § 35-42-2-1.3, after a bench trial. We affirm. * * *

Based on the foregoing, we conclude that: (1) the trial court did not abuse its discretion when it denied Manuel the opportunity to cross-examine D.S. about a past incident; (2) the trial court did not abuse its discretion when allowed the State to ask D.S. whether she had testified truthfully; and (3) the State produced sufficient evidence to prove beyond a reasonable doubt that Manuel committed domestic battery as a Class D felony.

In Dean V. Kruse Foundation, Inc., Dean Kruse and Kruse International v. Jerry W. Gates , a 23-page opinion, Judge Riley writes:
Appellants-Defendants/Counterclaim Plaintiffs, Dean V. Kruse Foundation (Foundation), Dean V. Kruse (Kruse), and Kruse International (collectively, the Kruse Parties), appeal the trial court’s judgment against Appellee-Plaintiff/Counterclaim Defendant, Jerry W. Gates (Gates). We reverse and remand with instructions. * * *

Issue. Whether the trial court erred when it interpreted the parties’ agreement to contain a liquidated damages clause.* * *

Based on the foregoing, we conclude that the trial court erred in determining that the forfeiture provision in the Purchase Agreement constituted a liquidated damages clause. We reverse the judgment of the trial court and remand with instructions to the trial court to calculate the measure of damages as a result of Gates’ breach of contract.

In James E. Corry and Gayle Corry v. Steve Jahn, Woodland Homes of Ft. Wayne, LLC, Scott R. Malcolm, Oakmont Development Co. LLC, and Mike Thomas Associates/F.C. Tucker, Inc., a 20-page opinion, Judge Bailey concludes:
Oakmont and MTA were not parties to the construction contract at issue in this litigation. Thus, the trial court properly granted them summary judgment on the breach of contract claim. No cause of action arises from belated provision of a limited agency disclosure form, and thus the trial court properly granted Oakmont and MTA summary judgment on this claim. The trial court properly declined to impose an implied warranty of habitability on Oakmont and MTA where the builder was the entity best positioned to prevent the harm. Oakmont and MTA are entitled to summary judgment upon the breach of warranty of habitability claim. The Corrys’ claim is for economic loss and they are relegated to recovery in contract as opposed to negligence law. The trial court properly granted Oakmont and MTA summary judgment upon the negligence claim. Finally, the designated materials reveal that Oakmont and MTA made no fraudulent misrepresentation to the Corrys. Jahn did not act as an agent of either entity when representing that his building methodology was superior and would produce a long-standing product. Accordingly, the trial court properly granted summary judgment to Oakmont and MTA on the fraud claim.
In Naveed Gulzar v. State of Indiana , a 9-page opinion, Judge Vaidik writes:
Naveed Gulzar pled guilty to theft in 2006. In 2011, he sought post-conviction relief on the grounds of ineffective assistance of counsel. Specifically, Gulzar argued that his trial counsel was ineffective for failing to advise him that automatic deportation was a consequence of his pleading guilty to theft. The post-conviction court denied relief. We affirm. * * *

Gulzar testified that he would not have pled guilty had trial counsel advised him that his guilty plea would have resulted in automatic deportation.Under the analysis in Segura, Gulzar’s conclusory testimony to that effect is insufficient. He must also show special circumstances or present specific facts that warrant post-conviction relief.

NFP civil opinions today (2):

In re the Marriage of: Dennis Coffman v. Jennifer Coffman (NFP)

Term. of Parent-Child Rel. of X.B. and L.B. (Minor Children) and J.B. (Father) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (4):

Darrell Lawrence v. State of Indiana (NFP)

Raymon Johnson v. State of Indiana (NFP)

Kevin K. Cotton v. State of Indiana (NFP)

Dustin L. Bess v. State of Indiana (NFP)

Posted by Marcia Oddi on August 7, 2012 12:29 PM
Posted to Ind. App.Ct. Decisions