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Tuesday, November 13, 2012

Ind. Decisions - Transfer list for week ending Nov. 9, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, Nov. 9, 2012. It is one page (and 17 cases) long.

Two transfers were granted last week:

• Barbara A. Johnson and William T. Johnson, both Individually and as trustees of the Barbara A. Johnson Living Trust dated 12-17-1996 v. Joseph Wysocki and M. Carmen Wysocki (NFP)- This was a 2-1 July 30, 2012 NFP opinion where the maajority concluded:

  Based upon the foregoing discussion and authorities, we conclude the evidence was insufficient to show, and the trial court did not find, that the Johnsons had actual knowledge of the defects at the time the sales disclosure form was completed. Therefore, we reverse the trial court’s judgment in favor of the Wysockis on their claim of fraudulent misrepresentation and direct the court to enter judgment in favor of the Johnsons. In addition, we affirm the trial court’s denial of the Wysockis’ request for attorney’s fees and costs pursuant to the Crime Victims Relief Act.

  The ILB had a lengthy post on this decision on July 31, 2012, including this quote from the dissent:

  [T]he relevant question now is whether the seller of covered residential real estate actually knew about the property's defects when filling out the disclosure form. Pursuant to the plain language of Indiana Code § 32-21-5-11, this should be the relevant inquiry in evaluating the sellers' liability in the case before us. A contrary reading of Indiana Code § 32-21-5-11 would contradict the Legislature's intent to protect buyers, in limited circumstances, as they purchase what is typically one's largest and most important asset: a home.

• Michael Kucholick v. State of Indiana (NFP) - the Supreme Court granted transfer and decided this case on Nov. 7th. Here is the ILB summary of the opinion.

In a third case, Odonis D. Parker v. State of Indiana (a March 15, 2012 COA opinion which was originally NFP, until Appellee's motion to publish was granted), the then-four justices' votes split: "David and Massa, JJ., vote to deny Transfer. Dickson, C.J., and Rucker, J., vote to grant Transfer."

When the Court is evenly divided on whether to grant or deny transfer, the petition to transfer is deemed denied, pursuant to App.Rule 58(C).

The ILB: The order with its 2-2 tie on transfer was issued Nov. 5. Nov. 6 was election day. Justice Rush joined the Court on Nov. 7. One might speculate as to why the petition was not held over under the Court had regained its full membership.

Posted by Marcia Oddi on November 13, 2012 01:13 PM
Posted to Indiana Transfer Lists