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Wednesday, July 30, 2014

Ind. Decisions - Court of Appeals issues 8 today (and 13 NFP)

For publication opinions today (8):

In Land Innovators Company, L.P., R.N. Thompson, Trinity Homes, Inc. and Trinity Homes, LLC d/b/a Beazer Homes v. Michael L. Bogan and Melody A. Bogan, a 22-page opinion, Judge Robb writes:

This case centers on a newly constructed home purchased by Michael and Melody Bogan (collectively, “Bogan”) in the Lake Stonebridge subdivision in Fishers. Since the home’s construction in 1999, it has experienced two incidents of flooding in the lower level. In response to these instances of flooding, Bogan filed suit against the subdivision developer and its general partner, Land Innovators, L.P. and R.N. Thompson, respectively, (collectively, the “Developers”) and against the homebuilder, Trinity Homes, LLC (“Trinity”). Bogan asserted a multitude of claims against the defendants, including breach of contract, negligence, negligence per se, constructive fraud, breach of covenants, breach of implied warranty of habitability, and abuse of process. The Developers also raised a cross-claim against Trinity seeking indemnification. On April 29, 2013, the trial court issued an order that: (1) awarded partial summary judgment to Bogan against Trinity on liability as to claims of negligence, negligence per se, breach of contract, and breach of covenants; (2) awarded partial summary judgment to Bogan against Developers on liability as to the claim of breach of covenants; (3) found genuine issues of fact existed regarding Bogan’s claims against Trinity of constructive fraud and breach of warranty of habitability; (4) found genuine issues of fact existed regarding Bogan’s claims against the Developers of negligence, breach of warranty of habitability, and abuse of process; and (5) granted Trinity’s motion for judgment on the pleadings against Developers’ claim for indemnification. On May 31, 2013, the trial court issued another order granting Bogan’s request that the home be demolished.

All three parties have raised issues for our consideration in this appeal. Trinity asks (1) whether the trial court erred in granting partial summary judgment on claims of negligence, negligence per se, breach of contract, and breach of covenants, and (2) whether the trial court erred in concluding Bogan was entitled to attorney fees on their breach of covenants claim. The Developers ask whether the trial court erred in granting summary judgment against them for breach of covenants. Additionally, both Trinity and the Developers challenge the trial court’s determination that the Bogan home must be torn down. Bogan, as cross-appellant, raises two issues: (1) whether the trial court erred by denying summary judgment on Bogan’s claim of constructive fraud against Trinity, and (2) whether the trial court erred by denying summary judgment on Bogan’s claim of negligence against the Developers. Finding no error in the trial court’s April 29, 2013 order on summary judgment and Trinity’s motion for judgment on the pleadings, we affirm that order in all respects. However, we conclude the trial court’s decision to enter an injunction for removal of the house without presentation of evidence or findings as to the requisite elements for an injunction was improper, and we reverse and remand on that sole issue.

In Selective Insurance Company of South Carolina and 500 Rangeline Road, LLC v. Erie Insurace Exchange, Welch & Wilson Properties, LLC d/b/a Hammons Storage, Allianz Global Risks U.S. Insurance Company, a 39-page, 2-1 opinion, Judge Brown writes:
The Appellants argue that: (A) Rangeline was covered under the Policy as an additional insured; and (B) the care, custody, or control exclusion contained in the Policy does not apply. * * *

For the foregoing reasons, we reverse the trial court’s grant of summary judgment in favor of Erie and denial of the Appellants’ motion for partial summary judgment, and we remand for further proceedings consistent with this opinion. Reversed and remanded.

BARNES, J., concurs.
ROBB, J., dissents with opinion. [which begins, at p. 37] Because I agree with the trial court that the A/I Endorsement of the Policy does not provide coverage for Rangeline in the Underlying Litigation, I respectfully dissent from the majority’s decision reversing the trial court.

In Bartholomew County, Indiana v. Review Board of the Indiana Department of Workforce Development, and Robert L. Amos, an 8-page opinion, Judge Bradford writes:
Appellant employer Bartholomew County (“the County”) appeals the determination of Appellee the Review Board of the Indiana Department of Workforce Development (“the Review Board”) that Appellee unemployed claimant Robert L. Amos was not discharged for just cause and, therefore, is eligible for unemployment benefits. Amos was employed as a merit deputy sheriff when he playfully shot a fellow officer in the groin with non-lethal training ammunition. The Bartholomew County Sherriff’s Merit Board (“the Merit Board”) found Amos to have violated six Sheriff’s Department rules and determined these violations to be “cause” for Amos’s discharge under Indiana Code section 36-8-10-11(a). The Review Board found that the County did not uniformly enforce its rules, as required for “just cause” discharge under Indiana Code section 22-4-15-1(d)(2). The County argues that (1) the issue of whether Amos was discharged for “just cause” was collaterally estopped by the Merit Board’s determination that Amos’s rules violations were “cause” for his discharge; (2) the Review Board erred in defining the class against which uniform rule enforcement is measured; and (3) the Review Board abused its discretion in denying the County’s request to present the transcript of the Merit Board hearing as additional evidence. We affirm.
Rogelio Garcia v. Garau Germano Hanley & Pennington, P.C.

James E. Whitfield, M.D. and St. Joseph Primary Care, LLC v. Jerry Wren, Individually and As Personal Representative of The Wrongful Death Estate of Leslie Wren, et al.

Duneland Properties, LLC, Duneland Sand, Inc., Duneland Sand Enterprises, LLC, Duneland Holdings, LLC, David Lasco and Lasco Family Trust v. Northern Indiana Public Service Company

In the Matter of the Termination of the Parent-Child Relationship of: S.E. (Minor Child), and R.K. (Mother) v. The Indiana Department of Child Services

Micah D. Perryman v. State of Indiana

NFP civil opinions today (5):

Frederick Bazeley, Jr., As Personal Representative of the Estate of Frederick T. Bazeley, III v. Robert Price and Sampson Fiberglass, Inc. (NFP)

Northern Indiana Public Service Company v. Ruth A. Cranor (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: A.W., (Minor Child), and J.W., (Mother) v. The Indiana Department of Child Services (NFP)

Michelle Rose f/k/a Michelle Grabbe v. Jay D. Grabbe (NFP)

In the Matter of the Finding of Contempt Against Tad Bohlsen During the Proceedings of Health and Hospital Corporation of Marion County v. Dickson Street Investments, LLC (NFP)

NFP criminal opinions today (8):

Warren Parks v. State of Indiana (NFP)

Nicolas Duesler v. State of Indiana (NFP)

Natosha L. Stillions v. State of Indiana (NFP)

Eric Barnett v. State of Indiana (NFP)

Angela M. Littrell v. State of Indiana (NFP)

Thomas J. Wiater v. State of Indiana (NFP)

Jeremy D. Jones v. State of Indiana (NFP)

Travis L. Chizum v. State of Indiana (NFP)

Posted by Marcia Oddi on July 30, 2014 12:46 PM
Posted to Ind. App.Ct. Decisions