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Wednesday, October 17, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Earl F. Shields, Larry J. Shields, and Robert L. Shields v. Rodney L. Taylor, an 18-page opinion, Judge Brown writes:

Earl Shields, Larry Joe Shields, and Robert Shields (collectively, the “Shields”) appeal the trial court’s Findings of Fact, Conclusions of Law and Order, and subsequent denial of the Shields’ motion to correct errors, in favor of Rodney Taylor. The Shields raise one issue which we revise and restate as whether the court erred in concluding that their counterclaim was not sufficiently pled to encompass a theory of easement by prescription. We affirm. * * *

The specific issue in this case is whether the Shields sufficiently pled facts claiming that their use of the dirt road over Taylor’s property connecting Earl Young Road and the long bottom had established a prescriptive easement. We observe that once a prescriptive easement has been established, the right vests by operation of law. “However, prescriptive easements generally ‘are not favored in the law.’” “The existence or non existence of a prescriptive easement is a question of fact.” A party claiming the existence of a prescriptive easement must provide evidence showing “‘an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under a claim of right.’” [ILB- many cites omitted from preceding] However, in Fraley v. Minger, 829 N.E.2d 476, 486 (Ind. 2005), the Indiana Supreme Court reformulated the elements of adverse possession. These new elements apply to establishing prescriptive easements, except for those differences required by the differences between fee interests and easements. Wilfong, 838 N.E.2d at 406. Therefore, a party claiming the existence of a prescriptive easement “must establish clear and convincing proof of (1) control, (2) intent, (3) notice, and (4) duration.” * * *

Use of land for access is not adverse if that use is permissive in nature. * * *

The Shields in their counterclaim did not plead that they used the dirt road on Taylor’s property in an adverse manner for twenty years or more. Accordingly, we conclude that the court did not err in finding that their counterclaim alleged only consensual entry or a consensual right of access to Taylor’s property.

For the foregoing reasons, we affirm the trial court’s December 9 Order and denial of the Shields’ motion to correct errors.

In D.L., Glen Black, Ann Black, Steven Lucas, and K.L., by her Next Friend, D.L. v. Christine Huck, Laura Zimmerman, Angela Smith Grossman, Rhonda Friend, Angyl McClaine, and Indiana Dept. of Child Svcs., a 17-page opinion, Chief Judge Robb writes:
D.L., Glen Black, Ann Black, Steven Lucas, and K.L. (collectively, the “Family”) appeal the trial court’s dismissal of seven out of eight counts of their complaint against the Tippecanoe County Department of Child Services and five of its employees (collectively, “DCS”). The Family raises two restated issues on appeal: 1) whether DCS was entitled to quasi-judicial immunity as granted by the trial court; and 2) whether Glen, Ann, and Steven had standing to assert claims against DCS. Concluding that DCS was not entitled to quasi-judicial immunity, but is entitled to statutory immunity as to all but one of the seven dismissed claims, and that Glen and Ann had standing to bring suit but Steven did not, we remand.
In Wind Wire, LLC v. Roger Finney and Patricia Finney, a 9-page opinion, Judge Bradford writes:
Appellant-Defendant Wind Wire LLC appeals the trial court’s judgment that it fraudulently induced Appellees-Plaintiffs Roger and Patricia Finney to execute a contract for the purchase and installation of a residential wind turbine and that it breached that contract’s implied warranty of fitness for a particular purpose. We affirm.
NFP civil opinions today (2):

In the Matter of the Term. of the Parent-Child Rel. of: A.R., V.R., C.R., and K.B.; and T.B. and C.R. v. The Indiana Dept. of Child Services and Lake County Court Appointed Special Advocates (NFP)

In the Matter of the Term. of the Parent-Child Rel. of T.H.M.; T.H. and A.M. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (4):

George Powells v. State of Indiana (NFP)

Curt Lowder v. State of Indiana (NFP)

Mark Phillips v. State of Indiana (NFP)

Norman Barker v. State of Indiana (NFP)

Posted by Marcia Oddi on October 17, 2012 12:42 PM
Posted to Ind. App.Ct. Decisions