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Friday, May 09, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Dan Weaver v. George Niederkorn , a 7-page opinion, Judge Friedlander concludes:

This is nothing more than a request to reweigh the evidence and judge the credibility of witnesses, which we will not do on appeal. See Washington v. Allison, 593 N.E.2d 1273 (Ind. Ct. App. 1992) (noting that as the exclusive judge of the weight of the evidence and credibility of witnesses, the trial court was not bound to credit the defaulted party’s self-serving testimony denying notice of the lawsuit). The trial court stated on the record that it believed Weaver “knew what was going on.” Transcript at 37. We will not second-guess the trial court’s factual determinations on appeal. Because we conclude that the trial court’s finding that Weaver failed to establish excusable neglect was not an abuse of discretion, we need not consider whether Weaver alleged a meritorious defense.
In Guadalupe Puente v. Beneficial Mortgage Co. of Indiana, PNC Bank, Fidelity National Title Insurance Co., and Meridian Title Corp., a 22-page opinion, Judge Friedlander writes:
This litigation commenced almost twelve years ago with a 2002 quiet-title action filed by James and Rebecca Wolverton concerning the property located at 4728 Hickory Street in Hammond, Indiana (the Property). The Wolvertons are not a party to this appeal. Instead, the appellant is Guadalupe Puente, who subsequently and unsuccessfully attempted to purchase the Property. His attempt ultimately was unsuccessful because, in the process of Puente’s attempt to purchase the Property, certain entities failed to discover that the Wolvertons were the titled owners as a result of having purchased it at a tax sale. The appellees consist of four companies involved in some way in Puente’s failed purchase. Those companies are: Beneficial Mortgage Company of Indiana (Beneficial), PNC Bank N.A. (PNC), Fidelity National Title Insurance Company (Fidelity), and Meridian Title Company (Meridian).

What began in 2002 as a quiet-title action between the Wolvertons and Beneficial, among others, was eventually re-captioned and renumbered to its present iteration on October 1, 2010. In his complaint, Puente sued Beneficial, Fidelity, Meridian, and PNC under multiple theories of liability. He appeals grants of summary judgment in favor of each individual appellee, presenting multiple issues for review. Our resolution of one of those issues, however, obviates our need to address the remainder. We restate that issue as follows: Did the trial court err in granting summary judgment in favor of Fidelity on the issue of whether Fidelity is entitled to subrogation of Puente’s claims? We affirm.

In Carroll Creek Development Company, Inc. v. Town of Huntertown, Indiana , a 16-page opinion, Judge Pyle writes:
[Issue] Whether the trial court erred by granting partial summary judgment to Huntertown on one part of Carroll Creek’s breach of contract claim. * * *

The trial court’s interpretation of the “whether by” clause changes the “to service the real estate situated in the excess area or adjacent to the excess area” language to “that service the real estate situated in the excess area or adjacent to the excess area[.]” In doing so, the trial court disregarded the plain language of the Water Agreement. The trial court’s interpretation of the “whether by” clause changes the “to service the real estate situated in the excess area or adjacent to the excess area” language to “that service the real estate situated in the excess area or adjacent to the excess area[.]” In doing so, the trial court disregarded the plain language of the Water Agreement. * * *

Because the trial court erroneously interpreted the contract as a matter of law, we reverse the trial court’s grant of Huntertown’s partial summary judgment motion and denial of Carroll Creek’s cross-motion for summary judgment and remand for further proceedings.

NFP civil opinions today (3):

Brian S. Moore v. Kristy L. Moore (NFP)

In Re: The Visitation of H.B., A.B. v. T.S. and A.S. (NFP)

In re the Adoption of M.D.: S.D. (Father) v. S.F. (Mother), and D.M. (Adoptive Parent) (NFP)

NFP criminal opinions today (3):

James Cody Ertel v. State of Indiana (NFP)

George H. Glawson v. State of Indiana (NFP)

Robert Campbell v. State of Indiana (NFP)

Posted by Marcia Oddi on May 9, 2014 10:57 AM
Posted to Ind. App.Ct. Decisions