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Tuesday, April 30, 2013

Ind. Decisions - Court of Appeals issues 10 today (and 15 NFP)

For publication opinions today (0):

In Ruben Pazmino v. Bose McKinney & Evans, LLP, a 12-page opinion, Judge Barnes writes:

Ruben Pazmino appeals the trial court’s grant of summary judgment in favor of Bose McKinney & Evans, LLP, (“Bose”) in the amount of $11,174.20. * * *

There is a genuine issue of material fact regarding whether Pazmino was acting on his own behalf or on behalf of Buena Vista when he sought Bose’s services. Accordingly, neither party is entitled to summary judgment at this stage of the proceedings. We reverse and remand.

In Countrywide Home Loans, Inc. v. Robert Holland , Judge Friedlander's 17-page opinion begins:
This is at least the third installment in a series of appellate cases stemming from Robert Holland’s attempts to appropriate vacant residential properties by entering them without invitation and allegedly making improvements. This iteration differs from its predecessors in that Holland had some success on his claims; although the trial court dismissed Holland’s action to foreclose on a purported million-dollar, common-law lien against the property at issue in this appeal, he prevailed on summary judgment with respect to his action to quiet title, and he was ultimately awarded nominal damages in the amount of one dollar. Countrywide Home Loans, Inc. (Countrywide), the property’s mortgagee, appeals and raises the following issue * * *

Judgment reversed and remanded with instructions.

In Vincennes University by the Board of Trustees of Vincennes v. Daniel E. Sparks, a 16-page opinion, Judge Crone writes:
After an investigation into falsified information on a basketball recruit’s application to Vincennes University (“the University”), Daniel Sparks, who was the head basketball coach in August of 2003, agreed that in lieu of facing disciplinary proceedings, he would forfeit his tenure and be subject to a zero tolerance policy. Thereafter the University renewed Sparks’s contract for the 2004-2005 academic year, but then notified him that his contract would not be renewed for the 2005-2006 academic year.

Sparks sued the University, contending that the University had to continue to employ him as long as he did not violate the zero tolerance policy. Both parties moved for summary judgment. The trial court denied both motions, and the case was tried to a jury. After Sparks’s case-in-chief, the University moved for a directed verdict, which the trial court denied. The jury returned a verdict in Sparks’s favor.

The University appeals, arguing that, because Sparks surrendered his tenure, the University was free to decide not to renew his contract for any reason. The University therefore argues that the trial court should have granted its motion for summary judgment, and alternatively, that the trial court should have granted its motion for a directed verdict and that the evidence was insufficient to support the verdict. We conclude that there is no genuine issue of material fact, that the designated evidence indicates that Sparks was not guaranteed continued employment with the University, and that summary judgment should have been granted for the University. We therefore reverse the verdict.

In John A. Hutchinson v. The City of Madison , a 10-page opinion, Judge Barnes writes:
John Hutchinson appeals the trial court’s dismissal without prejudice of the counterclaim for appropriation of real estate filed by the City of Madison (“the City”). Hutchinson also appeals the trial court’s determination that an interlocal agreement between the City and Jefferson County (“the County”) was valid. We affirm.
In Phillip J. Troyer v. Tracy L. Troyer, a 35-page, 2-1 opinion, Judge Crone writes:
Husband contends that the trial court abused its discretion in valuing and dividing the marital estate; exceeded its statutory authority in retroactively increasing his child support and healthcare expenses; abused its discretion in denying his petition for attorney fees; and failed to rule on two issues that he raised below. Wife contends that the trial court abused its discretion in awarding the parties joint legal custody of K.T. She also asserts that Husband’s appeal is frivolous or in bad faith such that she is entitled to attorney fees pursuant to Indiana Appellate Rule 66(E).

We conclude as follows: (1) the trial court did not abuse its discretion in valuing and dividing the marital estate; (2) the trial court exceeded its statutory authority in retroactively increasing Husband’s child support and healthcare expenses; (3) the trial court did not abuse its discretion in denying Husband’s petition for attorney fees; (4) the trial court did fail to rule on Husband’s request for Wife to reimburse him for her share of K.T.’s private school expenses; (5) the trial court did not abuse its discretion in awarding the parties joint legal custody of K.T.; and (6) Husband’s appeal is neither frivolous nor in bad faith, and therefore Wife is not entitled to attorney fees pursuant to Appellate Rule 66(E). Consequently, we affirm in part, reverse in part, and remand. * * *

BROWN, J., concurs.
KIRSCH, J., concurs in part and dissents in part with separate opinion. [that begins, at p. 34 of 35] I concur with my colleagues in Parts I, II, III, IV, and VI of the majority opinion. I respectfully dissent, however, from Part V regarding the order for joint custody.

In In the Matter of: R.S. (Minor Child), Child in Need of Services, and S.S. (Mother) & B.M. (Father) v. The Indiana Dept. of Child Services, an 8-page opinion, Judge Riley writes:
Appellants-Respondents, S.S. (Mother) and B.M. (Father), (Collectively, Parents), appeal the trial court’s determination that their infant daughter, R.S. (R.S.), is a child in need of services (CHINS). * * *

Here, it is apparent that Parents have made positive changes in their lives. This is something for which we should applaud them rather than condemn them through coercive action. See In re V.H., 967 N.E.2d 1066, 1073 (Ind. Ct. App. 2012). Accordingly, we reverse the trial court’s order determinating that R.S. is a CHINS.

In Natural Resources Defense Council v. Poet Biorefining-North Manchester, LLC; Poet Biorefining-Cloverdale, LLC; Central Indiana Ethanol, Inc., et al., a 13-page opinion (don't miss the attorney lineup on the first page), Judge May writes:
In 2010 the Indiana Department of Environmental Management (IDEM) issued permits to some fuel-grade ethanol production facilities. The permits did not categorize the facilities as “chemical process plants”, as such facilities had been categorized in the past. Facilities identified as “chemical process plants” are permitted to emit only 100 tons of certain air pollutants per year, while facilities not so identified may emit up to 250 tons of certain air pollutants per year.

The Natural Resources Defense Council (NRDC) challenged IDEM’s classification of the ethanol production facilities outside the category of “chemical process plants,” and IDEM’s Office of Environmental Adjudication (OEA) determined the facilities should have been categorized as “chemical process plants.” The facilities appealed to the Marion Superior Court, which reversed the OEA’s determination such that the plants again were excluded from the category of “chemical process plants.”

The issue before us is whether the State could properly exclude fuel-grade ethanol production plants from the category of “chemical process plants” without Environmental Protection Agency (EPA) approval of a modification to the Indiana State Implementation Plan (SIP). As it could not, the ethanol plants remain “chemical process plants,” and we must reverse the trial court.

[ILB note] The opinion refers to "IDEM’s Office of Environmental Adjudication (OEA)," but the OEA is a separate agency.]

In John Gresser and Janice Gresser, et al. v. The Dow Chemical Company, Inc.; Dowelanco n/k/a Dow Agrosciences LLC; and Reliable Exterminators, Inc., a 23-page opinion, Judge Pyle writes:
John and Janice Gresser, individually, and as parents and natural guardians of Elizabeth and Rebekah Gresser, filed a product liability action against The Dow Chemical Company, Inc., and DowElanco n/k/a Dow Agrosciences LLC and a negligence action against Reliable Exterminators, Inc. * * *

[Issues] 1. Whether summary judgment for Dow is warranted under the Indiana Product Liability Act (“IPLA”).
2. Whether the trial court erred in denying Reliable’s motion to exclude or strike the evidence proposed by the Gressers’ causation experts.
3. Whether the trial court erred in denying Reliable’s motion for summary judgment on the Gressers’ negligence claim.
4. Whether the trial court erred in denying Reliable’s summary judgment motion on the issue of punitive damages.
5. Whether the trial court erred in determining that this case is preempted by federal law. * * *

The trial court correctly granted Dow’s summary judgment motion on the Gressers’ failure to warn claims under IPLA. However, the trial court erred in denying Dow’s related summary judgment motion on the Gressers’ failure to satisfy IPLA requirements. In addition, the trial court improvidently granted Dow’s summary judgment motion pertaining to federal preemption.

The trial court correctly denied Reliable’s motion to exclude the Gressers’ expert witnesses. The trial court also correctly denied Reliable’s summary judgment motions pertaining to the Gressers’ negligence claims and to the possibility of a punitive damage award. The trial court erred by granting summary judgment in favor of Reliable on the issue of federal preemption.

Affirmed in part, reversed in part, and remanded for further proceedings.

In Glenn Parker, As Trustee Under the Revocable Declaration of Trust Agreement of Glenn Parker, Individually and Phyllis C. Parker, Individually v. Obert's Legacy Diary, LLC , a 12-page opinion, Judge Riley writes:
Appellants-Plaintiffs, Glenn Parker (Glenn), individually and as Trustee under the Revocable Declaration of Trust Agreement of Glenn Parker, and Phyllis C. Parker (Phyllis) (collectively, the Parkers), appeal the trial court’s grant of summary judgment in favor of Obert Legacy Dairy, LLC (the Dairy). We affirm.

The Parkers raise one issue on appeal which we restate as follows: Whether the Indiana Right to Farm Act bars their nuisance claim against the Dairy. * * *

On June 28, 2011, the Parkers filed their complaint for nuisance, which was amended on May 14, 2012. The Parkers alleged that the Dairy’s concentrated feeding operation produced offensive odors, devalued their property, and caused them “discomfort, inconvenience, and personal injury.” (Appellants’ Amended App. p. 106). On August 22, 2011, the Dairy filed its answer asserting the Indiana Right to Farm Act, Ind. Code § 32-30-6-9, as an affirmative defense. * * *

On appeal, the Parkers make three arguments that the Act does not bar their nuisance claim. First, the Parkers assert the Act does not apply in a nuisance action between two agricultural operations. Second, they contend that the Oberts’ conversion of a specific part of their farm, from crops to a concentrated feeding operation, constitutes a significant change precluding the Act’s applicability. Finally, the Parkers argue that the Act has no applicability since they have resided at their property for years before the alleged nuisance began. * * *

The Parkers argue that the legislature could not have intended the Act to apply to long-time residents whose daily, rural life suffers at the hands of a “factory-like ‘mega-farm.’” However, it is clear that the Act insulates the Oberts’ expansion of their dairy farm from nuisance suits under these circumstances. In sum, we affirm the trial court’s grant of summary judgment in favor of the Dairy.

CONCLUSION. Based on the foregoing, we conclude that the Act bars the Parkers’ nuisance claim and the trial court properly granted summary judgment to the Dairy. Affirmed.

In Kendall Johnson v. State of Indiana , a 7-page opinion, Judge May concludes:
The trial court did not abuse its discretion when it denied Johnson’s request to have the jury instructed on reckless homicide because the evidence did not support such an instruction. Additionally, Johnson’s sentence was not inappropriate based on his character and the nature of the offense. Accordingly, we affirm.
NFP civil opinions today (8):

Donna Chapman and Lora Hoagland v. Central Indiana Educational Service Center and Franklin Township Community School Corporation (NFP)

In the Matter of the Termination of the Parent-Child Relationship of R.R. and T.R.; R.R. v. Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of A.S.: K.S. v. Indiana Department of Child Services (NFP)

Term. of the Parent-Child Rel. of K.C., a/k/a R.L., and A.L., Minor Children; S.L., Father v. Indiana Dept. of Child Services (NFP)

Juan Murillo Bravo v. Silvia Bravo and Rancho Bravo, Inc. (NFP)

Allstate Insurance Company, As Subrogee of Juan R. Lopez, III v. Brenda J. Faulkner (NFP)

In the Matter of the Guardianship of the Person of H.M., S.M.M. and M.M., and S.E.M. v. D.L.M. v. In the Matter of the Paternity of H.M., S.E.M. v. D.L.M. (NFP)

In the Matter of the Civil Commitment of: D.P. v. Richard L. Roudebush Veterans Affairs Medical Center (NFP)

NFP criminal opinions today (7):

John F. Girvin v. State of Indiana (NFP)

Jerry D. Boyce v. State of Indiana (NFP)

Edward Lay v. State of Indiana (NFP)

Nelson Rios v. State of Indiana (NFP)

Joshua D. Gaunt v. State of Indiana (NFP)

Douglas R. Bartel v. State of Indiana (NFP)

Shawn E. Voorhies v. State of Indiana (NFP)

Posted by Marcia Oddi on April 30, 2013 12:00 PM
Posted to Ind. App.Ct. Decisions