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Wednesday, August 01, 2012

Ind. Decisions - Supreme Court denies transfer in quiet title case, J. Sullivan dissents in writing

The Dec. 30, 2011 COA NFP opinion in James Kindred, Thomas Kindred and Sam Kindred v. Betty Townsend and Harmon Crone (NFP), a quiet title action, was denied transfer by a vote of 4-1, in an Order filed July 31, 2012. Justice Sullivan dissented, setting out in writing his reasons. (When this happened last month in a case where Justice Massa objected to a denial of transfer, I called it a "rare written dissent" to a transfer denial.) Here Justice Sullivan writes:

Plaintiffs seek transfer. Among their contentions is that the Court of Appeals did not address their argument that, Defendants not having timely responded to the Plaintiffs’ motion for summary judgment, their motions to correct error and for relief from judgment constituted impermissible end-runs around the time deadlines of T.R. 56(C). In support of this argument, Plaintiffs cite explicit authority from this Court and the Court of Appeals holding that a trial court may not consider late summary judgment filings. HomeEq Serv. Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008); Borsuk v. Town of St. John, 820 N.E.2d 118, 124 n.5 (Ind. 2005); Desai v. Croy, 805 N.E.2d 844, 849 (Ind. Ct. App. 2004), trans. denied.

A party’s “absolute right to one appeal” in all cases includes the right to have each issue presented on appeal addressed and disposed of. Ind. Const. Art. 7, § 6. The plaintiffs were denied that here. I would grant transfer for purposes of addressing the raised but unanswered issue.

Posted by Marcia Oddi on August 1, 2012 10:14 AM
Posted to Indiana Transfer Lists