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Thursday, August 30, 2012

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Lane Alan Schrader Trust as Trustee under the Trust Agreement dated 16th day of November, 1999, and known as Lane Alan Schrader Self-Declaration of Trust v. Larry Gilbert and Nancy J. Malecki, an 18-page opinion, Judge Baker writes:

In this case, we are presented with a property boundary dispute and how trial courts may settle them through the use of land surveys. Here, a landowner purchased property based on information from a neighbor that a barn on the property had a twenty-foot setback. The landowner required this setback to conduct his business; however, at least two surveys indicated that the setback was less than the required twenty feet. The landowner decided to have a legal survey performed on the property, which indicated that there was a twenty-foot setback. This legal survey was recorded in the county recorder’s office.

The landowner’s neighbors appealed the legal survey to the trial court, arguing that it should be stricken from the recorder’s office. After a bench trial, the trial court determined that the legal survey was defective for failure to use good surveying practices and imposed two previous surveys. We conclude that this was error. The applicable statutory provisions require that strict notice provisions be followed, and there was no evidence that notice was given before the two previous surveys were conducted. Moreover, we think that the proper interpretation of the statute is that the trial court may either accept the survey that is being appealed, order a new survey, or order the county surveyor to locate and mark the boundary lines according to the trial court’s findings as supported by the evidence. * * *

[T]he trial court should have ordered the county surveyor to mark the boundary lines according to the Turning Point Survey and the Progressive Survey rather than simply imposing those two surveys. Put another way, the trial court did not err by accepting the two previous surveys but skipped a step by imposing them. Therefore, we conclude that the trial court erred by imposing the two previous retracement statutes. * * *

The judgment of the trial court is reversed and remanded with instructions.

In Peabody Energy Corp., Peabody Coal Company, LLC, and Black Beauty Coal Company v. Richard F. Roark, Beelman Truck Co., and North American Capacity Insurance Co., a 14-page opinion, Judges Barnes writes:
The dispositive issue we address is whether Peabody is an additional insured under an insurance policy issued by NAC. * * *

Because Roark’s injuries arose out of Beelman’s operations, Peabody is an additional insured under the Policy. As such, Peabody, not NAC, is entitled to summary judgment on the declaratory judgment action. Further, because Peabody is an additional insured under the Policy, Beelman did not breach the MPA. Thus, summary judgment in favor of Beelman was appropriate. We affirm in part, reverse in part, and remand.

In F.D., G.D., and T.D. b/n/f J.D. and M.D.; J.D. and M.D., Individually v. Indiana Dept. of Family Services, Vanderburgh Co. Office of Family & Social Services, Evansville Police Dept.,, et al., a 27-page, 3-opinion decision, with 2 of the opinions dissenting "in part", Judge Vaidik writes:
M.D. (Mother) and J.D. (collectively, “the parents”) appeal the trial court’s decision to grant summary judgment in favor of the Department of Child Services (Child Services) and the Evansville Police Department (the Police Department) for Child Services’ and the Police Department’s failure to inform them of their daughter’s molestation. The trial court based its decision on the grounds of immunity under both the Indiana Tort Claims Act and Indiana Code section 31-33-6-1, one of Indiana’s child abuse reporting statutes. However, we find that the Police Department is not a proper party to this case. We also hold that Indiana Code section 31-33-18-4, the statute the parents say gives rise to Child Services’ duty to notify them of their daughter’s molestation, does not confer a private right of action. We therefore affirm the trial court. * * *

This statute mandates that Child Services must refer a case to the juvenile court or make a referral to the prosecutor if it is in the best interest of the harmed child to do so. Therefore, Child Services has a statutorily mandated role in the initiation of judicial proceedings in the context of child abuse and neglect. As a result, the trial court did not err in finding that Child Services was immune for its actions under this subsection (6) of the ITCA. Affirmed.

CRONE, J., concurring in part and dissenting in part with separate opinion.
BRADFORD, J., concurring in part, dissenting in part, and concurring in result with separate opinion.

In Dana Young v. State of Indiana, a 7-page opinion, Judge Bradford writes:
Appellant-Defendant Dana Young appeals following her conviction for Class B misdemeanor Failure to Ensure School Attendance. In challenging her conviction, Young contends that she was unlawfully denied the right to a jury trial. Concluding that Young was adequately advised of and waived her right to a jury trial, we affirm. * * *

In light of Young’s failure to request a jury trial after indicating that she understood the time limitations set forth in paragraph five of the advisement of her rights, we conclude that here, as in Jackson, Young effectively waived her right to a jury trial, and accordingly, cannot successfully challenge the trial court’s failure to conduct a jury trial rather than a bench trial.

NFP civil opinions today (2):

Chris B. Davis v. Rhonda S. Davis (NFP)

In the Matter of the Commitment of D.W. v. Wishard Health Services Midtown Mental Health (NFP)

NFP criminal opinions today (5):

Michael Kern v. State of Indiana (NFP)

Keith Allen Abell v. State of Indiana (NFP)

Leroy Hall v. State of Indiana (NFP)

Danielle Kelly v. State of Indiana (NFP)

Tommy Goldman v. State of Indiana (NFP)

Posted by Marcia Oddi on August 30, 2012 12:36 PM
Posted to Ind. App.Ct. Decisions