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Wednesday, October 09, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In In Re: the Marriage of L.C. v. T.M., an 18-page opinion, Judge Baker writes:

In this case, appellant-respondent, L.C. (Mother) challenges the trial court’s denial of her petition to modify custody of the parties’ two children, K.M. and D.M. The original order that was entered in 2007 provided that Mother and appellee-petitioner, T.M. (Father), share both legal and physical custody over the children. Mother resides in Carmel where the children attended school and Father lives in Mooresville. Both of the children play in a Carmel travel soccer league that continues throughout the year.

Because of the logistics involved in the soccer league, the children’s desire to live with Mother, and other changed circumstances that have occurred since 2007, Mother filed a petition for custody modification that the trial court subsequently denied. Mother asserts that the trial court’s reliance on the parties’ initial agreed shared physical custody arrangement as a basis for denying the modification request is clearly erroneous because of the changed circumstances and modification is in the children’s best interests.

After reviewing the record, we believe that Mother presented sufficient evidence at trial warranting modification of custody. More particularly, Mother demonstrated that substantial changes in circumstances have occurred since the entry of the original decree, and that a change in the original physical custody order is in the children’s best interests. Therefore, we conclude that the trial court’s judgment denying Mother’s petition was clearly erroneous. Thus, we reverse the judgment of the trial court and remand this cause with instructions that an order be entered based on the evidence presented that modifies the custody arrangement in accordance with the children’s best interests.

In Custom Radio Corp., Custom Management Group, Inc., Richard Yarger and Robert O'Brien v. Actuaries & Benefit Consultants, Inc., and John M. Fogle, a 10-page opinion, Judge Bradford writes:
Appellants-Plaintiffs Custom Radio Corp.; Custom Management Group, Inc.; Richard Yarger; and Robert O’Brien appeal the trial court’s grant of summary judgment in favor of Appellees-Defendants Actuaries & Benefit Consultants, Inc. and John Fogle. From 1995 to 2004, Appellees provided consulting services to Appellants with respect to certain Welfare Benefit Plans investing in cash value life insurance. The plans were designed to comply with 26 U.S.C. § 419(A)(f)(6) so that Appellants’ contributions thereto would be tax-deductible. In July of 2003, however, the Internal Revenue Service (“IRS”) issued final regulations with regard to subsection 419(A)(f)(6), which rendered Appellants’ plans non-compliant and their contributions retroactively taxable. A subsequent IRS audit revealed that Appellants owed nearly $750,000 in back taxes, penalties, and interest, but, on October 20, 2008, Appellants entered into a settlement agreement with the IRS, whereby the tax penalties were waived.

On October 19, 2010, Appellants filed suit against Appellees, claiming negligent provision of consulting services and breach of oral contract. Appellees moved for summary judgment on the basis that the statutes of limitation had expired. The trial court determined that Appellants’ causes of action accrued and their respective statutes of limitation began to run on April 30, 2004, by which date Appellants allegedly knew that their Welfare Benefit Plans were non-compliant with 26 U.S.C. § 419(A)(f)(6). On appeal, Appellants argue that their causes of action did not accrue until October 20, 2008, the date on which they reached their settlement agreement with the IRS and thereby discovered their damages.

We conclude that Appellants’ causes of action accrued and the statutes of limitation began to run on the date Appellants knew or, through ordinary diligence, could have discovered that their Welfare Benefit Plans were non-compliant with subsection 419(A)(f)(6) and that their plan contributions were retroactively taxable. But finding a genuine issue of fact as to whether Appellants knew or could have known this information by April 30, 2004, we hold that summary judgment is inappropriate. The judgment of the trial court is reversed and remanded.

In Specialty Foods of Indiana, Inc., d/b/a Jersey Mike's Subs v. City of South Bend and Century Center Board of Managers , an 11-page opinion, Sr. Judge Darden writes:
Specialty Foods of Indiana, Inc. III, d/b/a Jersey Mike’s Subs (“Specialty Foods”), appeals the trial court’s order denying its complaint for declaratory judgment. We affirm.

Specialty Foods presents three issues for our review, one of which is dispositive: whether the force majeure clause of the agreement between Specialty Foods and the Century Center Board of Managers for the City of South Bend (“Century Center”) applies to excuse the Century Center’s further performance under the agreement. * * *

Specialty Foods contends the trial court erred by applying the force majeure clause of the UMO Agreement to excuse the Century Center’s performance under that agreement when the NFF moved the Hall of Fame from South Bend to Atlanta, Georgia. * * *

For the reasons stated, we conclude that the force majeure provision of the UMO Agreement is applicable to excuse the Century Center’s non-performance of its obligations under the Agreement because the closure of the Hall of Fame in South Bend constitutes a “reason not within the reasonable control of Century Center.”

NFP civil opinions today (0):

NFP criminal opinions today (4):

Jesse Doyle, Jr. v. State of Indiana (NFP)

Derek Dewitt v. State of Indiana (NFP)

Darrell Hix v. State of Indiana (NFP)

Jeffrey Cook v. State of Indiana (FNP)

Posted by Marcia Oddi on October 9, 2013 11:27 AM
Posted to Ind. App.Ct. Decisions