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Monday, June 30, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 17 NFP)

For publication opinions today (1):

In Dennis Samples v. Steve Wilson and Donald & Ingrid Bannon, husband and wife, and Ronald & Edna Bannon, husband and wife , a 9-page opinion, Judge Bailey writes:

Samples presents two issues for review, which we restate as:
I. Whether the judgment denying the claim for trespass is contrary to law; and
II. Whether the judgment denying the claim for nuisance is contrary to law. * * *

Samples owns ten acres of property in Poland, Indiana. From 1990 to 2006, property adjoining Samples’ property was owned by Steven Wilson (“Wilson”). Wilson’s property sloped downward toward Samples’ property, with an elevation drop of approximately twelve feet near the property line. Because Samples’ property was at a lower elevation, water flowed downhill from the Wilson property onto the Samples property.

In 1998, Wilson hired excavator Benny Sowers (“Sowers”) to enlarge his pond and expand an existing dam. On May 2, 2003, Samples filed his “Verified Complaint [for] Trespass, Nuisance and Storm Water Run-off For Improperly Constructed Dam” against Wilson. [since conveyed to the Bannons] * * *

On September 16, 2013, the trial court entered judgment in favor of the Bannons. On October 17, 2013, Samples filed a motion to correct error. On November 4, 2013, the trial court denied the motion to correct error, stating in relevant part: “The Court found the defendants’ version of the facts more credible and reliable.” (App. 29.) This appeal ensued, * * *

Samples bore the burden of proving his claims by a preponderance of the evidence and now appeals from a motion to correct error challenging a negative judgment. Accordingly, he must show that the evidence points unerringly to a conclusion different from that reached by the trier of fact, or that the judgment is contrary to law. * * *

The trial court’s judgment in favor of the Bannons is not contrary to law. Samples did not establish his entitlement to injunctive relief or damages.

NFP civil opinions today (5):

Doaa I. Ebrahim v. Essam Otefi (NFP)

Cheryl Rodriguez v. Sourthern Dunes Golf, LLC (NFP)

Katherine Fraze v. Floyd County Health Department, and City of New Albany and Animal Control (NFP)

In re: The Visitation of W.G.R. (Minor Child) M.W.R., Father v. K.G. and D.G., Maternal Grandparents (NFP)

Chad Thomas Gates v. Shannon Leigh Gates (NFP)

NFP criminal opinions today (12):

Anissa L. Tyler v. State of Indiana (NFP)

Darcel Edwards v. State of Indiana (NFP)

Bernard A. Burrell v. State of Indiana (NFP)

Anthony Ray Willoughby v. State of Indiana (NFP)

Ralph Dennis Gabriel, Jr. v. State of Indiana (NFP)

Robert Birk v. State of Indiana (NFP)

James Pello v. State of Indiana (NFP)

Walter L. Logan v. State of Indiana (NFP)

Tyrone R. McGee v. State of Indiana (NFP)

Stephan Gallagher v. State of Indiana (NFP)

Brandon Scroggin v. State of Indiana (NFP)

Diamond Staples v. State of Indiana (NFP)

Posted by Marcia Oddi on June 30, 2014 01:02 PM
Posted to Ind. App.Ct. Decisions