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Tuesday, March 31, 2015

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 19 NFP memorandum decisions)

For publication opinions today (5):

In Berthal O. Williams and Patricia Williams v. The Indiana Rail Road Company, a 41-page, 2-1 opinion, Judge Pyle writes:

This appeal involves an “indenture” or agreement—dating back to 1901—between property owners and a railroad company. The indenture gave the railroad company a right to build and maintain a dam and the resulting accumulation of water on the landowners’ property at a depth of fourteen to twenty feet so that the railroad could use it for railroad purposes. More than 100 years later, subsequent property owners—Berthal O. Williams (“Berthal”) and Patricia Williams (“Patricia”) (collectively “the Williamses”)—attempted to enforce that indenture with a subsequent railroad—the Indiana Rail Road Company (“IRR”)—and argued that IRR had breached the indenture. IRR moved for summary judgment, arguing that: (1) the 1901 indenture between the original parties was merely a personal obligation and not a covenant that ran with the land; (2) even if it was, the express terms of the indenture did not impose a duty on it to maintain the pond at a specified depth; and (3) even if the indenture so required maintenance of a specific pond depth, the Williamses could not enforce it against IRR because any alleged breach occurred before the Williamses purchased the property, causing any such covenant to cease running with the land. The trial court summarily granted IRR’s summary judgment motion.

The Williamses now appeal that order and argue that the trial court erred by granting summary judgment to IRR because none of IRR’s proposed arguments support that judgment. Because we conclude that the indenture was a covenant running with the land, that the terms set forth in the indenture required IRR to maintain the dam and the water level at a specified depth, and that the indenture contained a covenant, perpetual in nature, that did not cease upon a prior breach, we conclude that the trial court prematurely granted summary judgment. Accordingly, we reverse the trial court’s judgment and remand for further proceedings. * * *

Friedlander, J., concurs.
Mathias, J., dissents with separate opinion. [which begins, at p. 40 of 41] I respectfully dissent. I believe that the resolution of this case is to be found in the plain language of the indenture itself. * * *

This language grants to the railroad the right to construct and maintain a dam sufficient to acquire an accumulation of water of a depth not less than fourteen but not more than twenty feet. It imposes no duty or obligation to do so.

In County of Lake and the Lake County Plan Commission v. Alan J. Pahl and Roderick Pahl, a 27-page opinion involving interpretation of a zoning ordinance.

In Rapkin Group, Inc., as a minority member on behalf and for the benefit of The Eye Center Group, LLC, and Surgicenter Group, LLC v. Cardinal Ventures, Inc., et al. , a 13-page opinion, Judge Mathias writes:

Rapkin Group, Inc. (“Rapkin”) appeals the order of the Delaware Circuit Court
granting summary judgment in favor of Cardinal Ventures, Inc. (“Cardinal”), in
a shareholder derivative suit brought by Rapkin on behalf of The Eye Center Group, LLC (“ECG”) and Surgicenter Group, LLC (“SCG”) against Cardinal,
in which Cardinal was alleged to have breached a fiduciary duty and committed
constructive fraud upon ECG and SCG. On appeal, Rapkin claims that genuine
issues of material fact precluded the grant of summary judgment. We reverse and remand.
In Jacqueline A. Jackson v. State of Indiana , a 9-page, 2-1 opinion, Judge concludes:
The State did not present sufficient evidence to show that Jackson violated the conditions of her probation. We hold that the trial court erred when it revoked Jackson’s probation. Reversed.

Mathias, J., concurs.
Bradford, J., dissents with separate opinion. [which begins, at p. 8] Because I believe that the State presented sufficient evidence to prove that Jackson violated the terms of her probation, I respectfully dissent from the majority’s conclusion otherwise.

In Wenzel Williams v. State of Indiana, a 13-page opinion, Judge Robb writes:
Following a jury trial, Wenzel Williams was convicted of two counts of dealing in cocaine, both Class B felonies. He raises four issues on appeal: (1) whether the trial court abused its discretion by denying Williams’s motion for continuance on the morning of his jury trial; (2) whether the trial court abused its discretion by limiting Williams’s cross-examination of the State’s confidential informant; (3) whether the trial court abused its discretion by allowing a police officer to testify that he witnessed Williams participate in a drug transaction; and (4) whether the State committed prosecutorial misconduct during closing argument. Concluding none of Williams’s issues require reversal, we affirm. * * *

As an initial matter, the State asserts that Williams failed to preserve his claim of prosecutorial misconduct. The State cites Delarosa v. State, which declares that “[t]o preserve a claim of prosecutorial misconduct, a defendant must object and request an admonishment. If the defendant is not satisfied with the admonishment, the defendant must move for a new trial.” 938 N.E.2d 690, 696 (Ind. 2010); accord Ryan, 9 N.E.3d at 667. Because Williams did not seek an admonishment or a mistrial, the State believes Williams’s claim is forfeited. We cannot agree. Williams did object to the prosecutor’s statement during closing argument, and the trial court overruled that objection. It makes absolutely no sense for the State to say a defendant must request an admonishment and a mistrial after having been told by the trial court that no misconduct occurred. Statements in Delarosa and Ryan that requests for an admonishment and a mistrial are necessary to preserve a claim of prosecutorial misconduct presuppose that an objection is sustained and the trial court would actually have entertained a request for an admonishment. Put simply, Williams’s overruled objection is sufficient to preserve his prosecutorial misconduct claim. * * *

Conclusion. We conclude the trial court did not abuse its discretion by denying Williams’s motion for continuance, limiting cross-examination of Swaim, or allowing a witness to testify that he saw a drug transaction. Further, William’s alleged prosecutorial misconduct claim does not constitute reversible error.

NFP civil decisions today (4):

John Mark Nipp v. Amy Elizabeth Nipp (mem. dec.)

SVT, LLC d/b/a Ultra Foods v. Benny Becchino (mem. dec.)

In Re the Adoption of H.J.S., J.H.S. and P.L.S. v. B.M.C. and A.J.S. (mem. dec.)

Beverly R. Newman, Ed.D. v. Meijer, Inc. (mem. dec.)

NFP criminal decisions today (15):

Rodney L. Blakely v. State of Indiana (mem. dec.)

Amanda R. Lee v. State of Indiana (mem. dec.)

Tyree Hill v. State of Indiana

John Randall Portis v. State of Indiana (mem. dec.)

Shamus L. Patton v. State of Indiana (mem. dec.)

Monica McCall v. State of Indiana (mem. dec.)

Gregory A. Caudle v. State of Indiana (mem. dec.)

Jeremy Ryan v. State of Indiana (mem. dec.)

Brandon Scroggin v. State of Indiana (mem. dec.)

Bradley Hunt v. State of Indiana (mem. dec.)

Rodney S. Perry, Sr. v. State of Indiana (mem. dec.)

Henry Gooch v. State of Indiana (mem. dec.)

Sylvester Dunn v. State of Indiana (mem. dec.)

Michael J. Weis v. State of Indiana (mem. dec.)

Loyd Allen Sands v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 31, 2015 01:46 PM
Posted to Ind. App.Ct. Decisions