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Monday, October 15, 2012

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In Ted L. Cecil, Cecil Septic LLC, and Max Haas Company, LLC v. Fisk Excavating, Plumbing and Septic Services, Inc., Dennis Fisk, Dennis Fisk, Jr.,Michelle Fisk, Bob Murphy, et al. (NFP), a 21-page opinion, the COA affirmed summary judgment in favor of each of the appellees. In addition, Judge Kirsch writes:

On appeal, Morelock argues that he is entitled to recover appellate attorney fees from Cecil pursuant to Indiana Appellate Rule 66(E). He contends that the arguments raised by Cecil are “devoid of any merit and are frivolous in nature.” Morelock claims that Cecil’s brief is filled with baseless theories, speculative statements, and inaccurate arguments not grounded in the designated evidence. Under these circumstances, he asserts that he is entitled to an award of appellate attorney fees. We agree. * * *

Here, Cecil’s briefs are practically devoid of articulate arguments and instead contain incomplete sentences, disjointed arguments, and unsupported accusations of collusion by Morelock with the Board. In light of Cecil’s failure to present cogent arguments and to support its contentions throughout the briefs, we hold that appellate attorney fees are appropriate in this case. [cite omitted] Therefore, we remand to the trial court for a determination of Morelock’s appellate attorney fees.

In Sally Applegate-Rodeman and Leslie M. Rodeman v. JDK, LLC d/b/a Livrite Fitness Center, d/b/a Northeast Fitness, Threstrands by Grace, LLC d/b/a Livrite Fitness Center, d/b/a Northeast Fitness (NFP), a 6-page opinion, Judge Mathias concludes:
Here, the Rodemans’ appeal was not an appeal of a final judgment on all issues as to all parties. Prior to the order granting summary judgment, the Rodemans had filed a motion to amend to add Threestrands by Grace as a defendant, and the motion was granted subsequent to the granting of the motion for summary judgment. As such, the issues or claims in this case have not yet been resolved in regard to Threestrands by Grace.

The appeal could have been proper under Trial Rule 54(B), as to some issues or some parties, but it was not certified as such pursuant to Trial Rule 54(B). In its August 31, 2011 order, the trial court did not indicate that there was “no just reason for delay” and did not direct “entry of judgment.” See Ind. R. Trial P. 54. In Berry, we noted that Indiana Trial Rules 54(B) and 56(C) were adopted “to provide greater certainty to the parties and to strike an appropriate balance between the interest in the speedy review of certain judgments and the inefficiencies of piecemeal appeals.” 643 N.E.2d at 329 (Ind. 1994). For this court to exercise jurisdiction, the trial court must decide all issues with regard to all parties for the judgment to be final, or the trial court must make the judgment final as to less than all parties or issues by expressly determining in writing that “that there is no just reason for delay” and directing “entry of judgment.” See Ind. R. Trial P. 54. The trial court did not do either in this case.

For all of these reasons, we dismiss this appeal as premature.

NFP criminal opinions today (0):

Posted by Marcia Oddi on October 15, 2012 01:19 PM
Posted to Ind. App.Ct. Decisions