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Tuesday, January 21, 2014

Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)

For publication opinions today (2):

In Michael Weist v. Kristen Dawn and State Farm Insurance Companies , an 11-page opinion, Sr. Judge Sharpnack writes:

Michael Weist appeals the trial court’s grant of summary judgment to Kristen Dawn and State Farm Insurance Companies. We affirm in part, reverse in part, and remand.

Weist raises one issue, which we restate as: whether the court erred in granting summary judgment to Dawn and State Farm. * * *

Weist argues that the trial court erred in concluding that the doctrine of equitable estoppel does not apply. Before we address that argument, however, State Farm raises a different ground for affirming the trial court’s grant of summary judgment in its favor. Specifically, State Farm asserts that Weist’s claims against it are barred by the direct action rule. * * *

In the absence of a claim for declaratory relief, the direct action rule bars Weist’s claim against State Farm. Cf. Myers v. Deets, 968 N.E.2d 299, 303 (Ind. Ct. App. 2012) (determining that a complaint “sufficiently stated facts that would support a declaratory judgment action” against the insurer and remanding for further proceedings). The trial court did not err in granting summary judgment to State Farm. * * *

Accepting Weist’s version of events, as we must under our standard of review, he has established disputes of material fact as to both elements of the equitable estoppel test set forth in Davis. It is thus necessary to reverse and remand the case for a trier of fact to resolve whether Dawn is equitably estopped from asserting the defense.

In In the Matter of the Petition for Temporary Protective Order: A.N. v. K.G., a 20-page decision, Judge Riley writes:
Appellant-Respondent, A.N., appeals the trial court’s Order of contempt in favor of Appellee-Petitioner, K.G. We affirm.

A.N. raises two issues, which we consolidate and restate as the following issue: Whether trial court improperly acted as advocate for K.G. thereby violating her due process right to a fair trial before an impartial tribunal. * * *

Based on the foregoing, we conclude that the trial court did not improperly act as an advocate and therefore did not deny A.N. her due process right to a fair trial before an impartial tribunal. Affirmed.

KIRSCH, J. concurs
ROBB, J. concurs with separate concurring opinion [that reads in full] I believe the trial court was precariously close to crossing the line of acceptable intervention into the course of these proceedings. Had the evidence of A.N.’s impermissible contacts not been so strong, the trial court’s actions may have been enough to compromise the parties’ rights to a fair trial. However, because the evidence that A.N. violated the protective order is overwhelming, I agree that the trial court’s contempt order should be affirmed.

NFP civil opinions today (3):

In the Matter of the Termination of the Parent-Child Relationship of: N.I., the minor child, and K.I., the mother, K.I. v. The Indiana Department of Child Services (NFP)

Smita Radhakrishnan v. Access Therapies, Inc. (NFP)

VPR Properties, LLC and Purna Veer and Radhika Veer v. Affiliated Foot Care Clinic, PC (NFP)

NFP criminal opinions today (9):

Terry Berry v. State of Indiana (NFP)

Christopher Jethroe v. State of Indiana (NFP)

Tievon N. Nichols v. State of Indiana (NFP)

Brandon M. Ebeyer v. State of Indiana (NFP)

Charles E. Howard v. State of Indiana (NFP)

Edward Zaragoza v. State of Indiana (NFP)

Darrell Kirkwood v. State of Indiana (NFP)

Timothy J. Padgett v. State of Indiana (NFP)

Donald Ware v. State of Indiana (NFP)

Posted by Marcia Oddi on January 21, 2014 11:52 AM
Posted to Ind. App.Ct. Decisions