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Friday, November 16, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Kohl's Indiana, L.P. and Kohl's Dept. Store, Inc. v. Dennis Owens, et al. , a 16-page opinion, Judge Vaidik writes:

Kohl’s Indiana, L.P., and Kohl’s Department Stores, Inc., (collectively “Kohl’s”) appeal the trial court’s grant of summary judgment in favor of the Evansville-Vanderburgh County Area Plan Commission (“Plan Commission”) and the Board of Commissioners of Vanderburgh County (“Board of Commissioners”) on Kohl’s equitable claims for contribution and unjust enrichment for expenses that Kohl’s incurred when its developer failed to complete construction of a new Kohl’s Department Store on the west side of Evansville. We conclude that the trial court properly entered summary judgment in favor of the Plan Commission for both claims because the Commission never accepted a common obligation to complete the project, never entered into any sort of agreement with Kohl’s concerning the project, and there is no evidence that a benefit was conferred upon the Plan Commission at the Commission’s express or implied consent. We also conclude that the trial court properly entered summary judgment in favor of the Board of Commissioners for both claims because Kohl’s and the Board entered into an agreement which required Kohl’s to complete the public-infrastructure improvements at Kohl’s expense, and when the rights of the parties are controlled by an express contract, recovery cannot be based on a theory implied in law. Finally, we conclude that the Board of Commissioners is not entitled to appellate attorney’s fees. We therefore affirm the trial court.
In The Marling Family Trust v. Allstate Ins. Company , a 9-page opinion, Judge Vaidik writes:
The Marling Family Trust (“the Trust”) appeals the trial court’s grant of summary judgment in favor of Allstate Insurance Company. Upon review of the designated evidence, we conclude that the Trust acquired an equitable lien on insurance proceeds available under Thomas M. Pipes’ Allstate insurance policy. We further conclude that the Trust protected its equitable interest in the policy proceeds by giving Allstate notice of its interest before it distributed any policy proceeds. For this reason, the trial court erred in granting summary judgment for Allstate. We reverse and remand.
In Marybeth Lebo v. State of Indiana, a 19-page, 2-1 opinion, Judge Bradford writes:
Having convicted former LaPorte High School junior varsity volleyball coach Robert Ashcraft of multiple sex crimes against a minor student athlete, the State of Indiana charged Marybeth Lebo, the school’s varsity volleyball coach, with failure to report child abuse or neglect. Lebo appeals the trial court’s denial of her motion to dismiss these charges, arguing they are barred by the statute of limitations and lack sufficient specificity. We conclude that failure to report is a continuing offense to which the statute of limitations does not apply and, alternatively, that Lebo’s alleged instruction that her volleyball players not discuss Ashcraft’s conduct with their parents was sufficient to invoke the concealment exception to the statute of limitations. We also conclude that the charging informations, together with testimony from the probable cause hearing, allege sufficiently specific facts from which Lebo can prepare her defense. Therefore, we affirm. * * *

ROBB, C.J., concurs.
BAKER, J., concurs in part and dissents in part with opinion. [which begins, at p. 14 of 19]I agree with the majority’s determination that the statute of limitations had not run with respect to the State’s ability to bring charges against Lebo. More particularly, I believe that Lebo’s concealment, properly alleged in the charging informations, tolled the statute of limitations as it applied to her such that the charges filed against her in September 2011 were not time-barred. I part ways only briefly on this issue to note my belief that the tolling ceased when the State had probable cause to arrest Ashcraft, because at this time the State could have discovered through due diligence whether Lebo, in her role as K.T.’s coach and as Ashcraft’s superior, had failed to make a report required under Indiana Code sections 31-33-5-1 or 31-33-5-2. Under either interpretation of when the tolling stopped, however, the charges against Lebo were brought within the two-year statute of limitations. * * *

Although we may hope that individuals make a report any time child abuse or neglect is suspected, the duty to report has not been imposed by our legislature until one has “reason to believe” that abuse or neglect has occurred. My view is that there was no evidence that such “reason to believe” existed here, and therefore, the trial court should have granted Lebo’s motion to dismiss.

NFP civil opinions today (3):

Mattie A. Tedrow and Mary L. Pierson v. Coyeville Belcher as Personal Rep. of the Estate of Everett D. Belcher, Jr.; and Lynn R. Belcher (NFP)

BCC Products, Inc. and Roger Brunette, Jr. v. Roger Brunette, Sr., and Pauline Brunette (NFP)

Michael Ramos v. Robertson's Apartments (NFP)

NFP criminal opinions today (6):

Sharmain J. Smith v. State of Indiana (NFP)

Roosevelt D. Brooks v. State of Indiana (NFP)

William Emry v. State of Indiana (NFP)

Albert Lindsey v. State of Indiana (NFP)

Bernard Simmons v. State of Indiana (NFP)

Jerry Kaiser, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on November 16, 2012 10:06 AM
Posted to Ind. App.Ct. Decisions