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Monday, October 29, 2012

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

For publication opinions today (2):

In Betty J. Angel v. Kent H. Powelson and Marjorie A. Powelson, a 22-page opinion, Judge Pyle (in his first for publication opinion for the COA) writes:

This case involves a dispute between neighbors—Betty J. Angel (“Angel”) and Kent H. Powelson (“Kent”) and Marjorie A. Powelson (“Marjorie”) (collectively, “the Powelsons”)—regarding two pieces of property in Vanderburgh County: (1) an 80-acre parcel of land, which was owned by Kent’s grandmother, divided in 1964, and conveyed to the parties at different periods in time; and (2) a 20-foot wide strip of land that passes over a 60-acre tract of land (“the Roadway”) that serves as a roadway to access the divided parcels. Angel received a deed to 73 acres “more or less” of the 80-acre parcel and an easement to use the Roadway in 1964, and Kent received a deed to 7 acres “more or less” of the 80-acre parcel and an easement to use the Roadway in 1978.

The parties used the Roadway and appear to have lived without major problems on their respective parcels until Kent gave a cell phone company a public utility easement, allowing it permission to come onto and put a cell phone tower on Kent’s parcel. Forty-six years after Angel received the deed to her parcel, Angel sued Kent, claiming that the legal description of the property boundaries in her 1964 deed should be changed or reformed because Kent’s grandmother misinformed Angel that she was receiving 73 acres and claiming that she had established ownership to the Roadway through adverse possession. * * *

Angel argues that the trial court erred by granting part of the Powelsons’ motion for summary judgment. Specifically, Angel argues that: (a) the trial court erred by considering the Powelsons’ designated evidence; (b) the trial court erred by granting summary judgment to the Powelsons on Angel’s claim for reformation of a deed; and (c) the trial court erred by granting summary judgment to the Powelsons on Angel’s claim for adverse possession. * * *

Waiver notwithstanding, because the Powelsons’ designated evidence was specific enough to inform the trial court of the material upon which the Powelsons relied in support of their motion for summary judgment, it may be considered. * * *

[C]ourts in Indiana may reform written instruments only if: (1) there has been a mutual mistake; or (2) one party makes a mistake accompanied by fraud or inequitable conduct by the other party. * * *

Because the designated evidence supports the trial court’s conclusion that Angel’s claim for reformation of a deed is barred by laches, we affirm the trial court’s grant of summary judgment to the Powelsons on this claim. * * *

The doctrine of adverse possession is one that “entitles a person without title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent, notice, and duration.”

Here, we cannot say that the trial court erred by granting summary judgment to the Powelsons on Angel’s claim of adverse possession to the Roadway. The undisputed designated evidence reveals that both Angel and the Powelsons were granted an easement to use the Roadway and that they both have used it for ingress and egress purposes. Thus, the elements of control and intent have been negated. * * *

Affirmed.

In Shiloh Jones v. State of Indiana , a 20-page opinion, Judge Kirsch writes:
On appeal, we address the following issues:

I. Whether Jones’s notice of appeal was timely filed;
II. Whether Jones’s multiple convictions for battery violate Indiana’s constitutional prohibition against double jeopardy;
III. Whether Jones’s criminal confinement conviction violates Indiana’s constitutional prohibition against double jeopardy;
IV. Whether the presiding judge had the authority to vacate the sentence ordered by the judge pro tempore; and
V. Whether the prosecutor committed misconduct by vouching for the complaining witness’s credibility by assuring jurors during the closing argument that she was telling the truth. * * *

Jones contends that his multiple convictions for battery violate Indiana’s constitutional prohibition against double jeopardy. Specifically, he contends that he cannot be convicted for domestic battery as a Class D felony (Count I), domestic battery as a Class A misdemeanor (Count IV), and battery as a Class A misdemeanor (Count V) because “the evidence presented supports but a single offense of domestic battery.” * * *

Jones bases his claim on the “actual evidence test” enunciated by the Indiana Supreme Court in Richardson v. State, 717 N.E.2d 32 (Ind. 1999) and on the fact that Counts IV and V are each a lesser-included offense of Count I. * * *

Jones was convicted in violation of Article 1, section 14, of Class D felony domestic battery, Class A misdemeanor domestic battery, and Class A misdemeanor battery. The two Class A misdemeanor battery convictions have the less-severe penal consequences. Accordingly, we vacate both the convictions and sentence for the Class A misdemeanor domestic battery (Count IV) and for the Class A misdemeanor battery (Count V), and leave standing the conviction and sentence for Class D felony domestic battery (Count I). * * *

On the basis of double jeopardy, we reverse Jones’s convictions for Count IV, Class A misdemeanor domestic battery, and Count V, Class A misdemeanor battery, and we affirm Jones’s conviction and sentence for Count I, Class D felony domestic battery. In all other respects, we affirm the trial court’s decision. Therefore, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

NFP civil opinions today (1):

Cheryl E. Webb f/k/a Cheryl E. Wilder and G. Cameron Taylor v. The Bank of New York Mellon (NFP)

NFP criminal opinions today (1):

Aaron Shelton v. State of Indiana (NFP)

Posted by Marcia Oddi on October 29, 2012 10:20 AM
Posted to Ind. App.Ct. Decisions