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Monday, September 30, 2013

Ind. Decisions - Court of Appeals issues 8 today (and 6 NFP)

For publication opinions today (8):

In Joseph M. Guinn v. Applied Composites Engineering, Inc., a 33-page opinion, Judge Brown writes:

Joseph M. Guinn appeals the trial court’s summary judgment ruling in favor of Applied Composites Engineering, Inc. (“ACE”) as to Guinn’s claim for tortious interference with a contract. Guinn raises one issue, which we revise and restate as whether the court erred in granting summary judgment in favor of ACE. We reverse and remand.
In Amy Palmer v. Margaret Sales and Unique Insurance Company, a 20-page, 2-1 opinion, Judge Crone writes:
On appeal, Palmer argues that the small claims court erred by denying her request for a change of judge and request for a jury trial. She also argues that the amount of damages was excessive. We agree that the small claims court erred by finding that her request for a change of judge was untimely. The small claims court had relied on McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008). We disagree with the majority opinion in McClure, which gives the defendant only three days after receiving the notice of claim to request a change of judge. In any event, McClure is distinguishable because the notice of claim sent to Palmer did not properly notify her of the trial date. Because the request for a change of judge should have been granted, the small claims court was deprived of jurisdiction, and the judgment must be reversed. Therefore, we will not address Palmer’s claim that the amount of damages was excessive. However, because the issue will recur on remand, we will address Palmer’s arguments concerning her request for a jury trial. We conclude that the affidavit that Palmer submitted in support of her request met the level of specificity required by the applicable statute. Therefore, we reverse and remand with instructions to grant Palmer’s request for a change of judge, to implement the procedure for selection of a new judge, and to transfer the case to the plenary docket. * * *

Reversed and remanded.
RILEY, J., concurs.
BAILEY, J., concurs in part and dissents in part with opinion. [who writes in part, beginning on p. 14 of 20] I concur in the result of the majority’s opinion to the extent it concludes that Palmer properly moved for a jury trial, and thus orders the trial court on remand to transfer the case to the plenary docket. In light of that instruction, however, I think it is unnecessary even to address Palmer’s motion for a change of judge, and I do not think we should do so. Yet because of the criticism by the majority of the opinion I authored in McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008), I write separately to explain my disagreement.

In William A. Asher v. Stephanie J. Coomler, an 8-page opinion, Judge Riley concludes:
However, Mother argues that Father knew that Magistrate Mattingly would preside as early as October 12, 2012 and therefore waived his objection to the magistrate presiding. Because Father objected to Magistrate Mattingly presiding over the case at the first hearing, no further objections were required. See Smith v. Lake Cty., 807 N.E.2d 53, 58 (Ind. Ct. App. 2004). Therefore, the Order is without legal effect. See id. Accordingly, we reverse and remand with instructions to the trial court to permit the parties to select a successor special judge in accordance with the procedures specified in T.R. 79(I)(1).

CONCLUSION. Based on the foregoing, we conclude that Father was denied a special judge to preside over the proceedings. We therefore reverse and remand with instructions to the trial court to permit the parties to select a special judge pursuant to T.R. 79(I)(1). Reversed and remanded with instructions.

In Tom Trisler d/b/a Canal House Antiques v. Clayton L. Carter, an 8-page opinion, Judge Riley writes:
Appellant-Defendant, Tom Trisler (Trisler), d/b/a Canal House Antiques (Canal), appeals the trial court’s order which required Trisler to issue a refund to the Appellee-Plaintiff, Clayton L. Carter (Carter). We reverse. * * *

Trisler contends that the trial court erred in entering judgment against him and in favor of Carter because there was no express or implied warranty requiring him to refund the purchase price. Trisler argues that “[t]the fact that the store owner had posted no signs regarding refunds or exchanges created no express or implied warranty either.” (Appellant’s Br. p. 4). Trisler further contends that his willingness to allow Carter to exchange and return the item for store credit did not give rise to a right to refuse store credit and demand a cash refund instead. * * *

Here, Trisler argues that because there was no return policy, Carter was not entitled to a refund. Trisler’s argument relies on Caveat Emptor, which literally means, buyer beware. * * *

We find that the application of the common law principle appears to be diminishing and our courts seem to be slowly abandoning this principle. Here, the sale was in respect to personal property and not real property, and in this regard, we find that the Indiana Uniform Commercial Code (U.C.C.) would be more appropriate to determine the issue before us. As revealed by the record, the sale of the chest of drawers constituted a contract of sale by definition under the U.C.C. * * *

The fact that Carter was able to discover the defect upon opening the drawers of the chest while cleaning it belies the difficulty of discovering the non-conformity and there is no allegation that Trisler in any way kept Carter from inspecting the chest of drawers prior to his purchase of it. Therefore, I.C. § 26-1-2-608(1)(b) also does not apply to allow Carter to revoke his acceptance of the chest of drawers. Failing a legitimate reason to revoke his acceptance, the timeliness of Carter’s attempted revocation pursuant to I.C. § 26-1-2-608(2) is not at issue. Therefore, we conclude that the trial court erred in entering judgment for Trisler and we reverse its decision. * * *

Based on the foregoing, we conclude that the trial court erred in ordering Trisler to reimburse Carter the purchase price of the chest of drawers.

David M. Green v. State of Indiana

Gary Oswalt v. State of Indiana

Jeffrey Archer v. State of Indiana

Paul J. Livers II, v. State of Indiana

NFP civil opinions today (4):

In the Matter of the Termination of the Parent-Child Relationship of K.C., R.C., and B.C., Minor Children and R.C., Father v. Indiana Department of Child Services (NFP)

Joseph A. Taylor v. Dr. William H. Wolfe, in his Individual Capacity as an Employee of Corizon and Medical Director at the Pendleton Correctional Facility, Corizon, Inc., and Pharma Corr, (NFP)

In the Matter of; H.B., G.M., P.M., and A.C. (Minors), C.M. (Mother) v. The Indiana Department of Child Services and Lake County Court Appointed Special Advocate (NFP)

Gerald W. Staton v. Dawn M. Dobyns-Gross, Indiana Family Social Services Administration, Tippecanoe County, Indiana and Tippecanoe County Prosecutor (NFP)

NFP criminal opinions today (2):

Brandon Stewart v. State of Indiana (NFP)

Mark Burkett v. State of Indiana (NFP)

Posted by Marcia Oddi on September 30, 2013 11:27 AM
Posted to Ind. App.Ct. Decisions