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Tuesday, June 02, 2015

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (3):

In Town of Zionsville, Indiana v. Town of Whitestown, Indiana and Angel Badillo, a 34-page opinion, Judge Bailey writes:

The Town of Zionsville (“Zionsville”) appeals the entry of summary judgment against it and in favor of the Town of Whitestown and Angel Badillo (collectively, “Whitestown”) with respect to the parties’ claims and counterclaims concerning
1) Zionsville’s proposed reorganization with Perry Township, in Boone County, and
2) Whitestown’s proposed annexation of portions of Perry Township.

Zionsville’s appeal presents novel questions concerning the construction of numerous provisions of the Indiana Government Modernization Act of 2006 (“the Act”), see Ind. Code § 36-1.5-1-1 et seq., and how provisions of the Act operate in conjunction with other statutes that regulate the operation of local governments in Indiana. The trial court concluded at summary judgment that, even with the Act’s significant liberalization of the rules concerning reorganization and territorial boundary-drawing at the level of local government, Zionsville cannot “leap-frog” Whitestown in an effort to reorganize with portions of Perry Township which are not contiguous with Zionsville.

Zionsville appeals. We reverse and remand. * * *

Zionsville’s appeal is not moot. The trial court erred when it entered summary judgment for Whitestown and against Zionsville on the question of whether Zionsville was denied authority under the Act to reorganize with Perry Township. The trial court also erred as to the question of the voting districts associated with the 2014 Zionsville Plan. Zionsville was improperly denied summary judgment as to its claims concerning the viability of Whitestown’s annexation efforts. We therefore vacate the order, but decline to consider the effect of the 2014 Plan on Whitestown’s effort to annex territory for their Waste Water Treatment Plant, because that matter is the subject of another pending appeal.

We accordingly reverse the entry of summary judgment and remand this case to the trial court with instructions to enter judgments consistent with our opinion today.

In Lincoln National Life Insurance Company v. Peter S. Bezich, individually and on behalf of a class of others similarly situated, a 26-page opinion, Judge Robb writes:
Peter Bezich filed a complaint against Lincoln National Life Insurance Company (“Lincoln”), alleging three separate counts of breach of contract regarding his variable life insurance policy. Bezich then moved to certify a class of policyholders on all three breach of contract claims. The trial court issued an order denying class certification as to Count 1 and Count 2 of Bezich’s complaint. However, the trial court concluded that a single-issue class may be certified as to Count 3 for the purpose of determining liability. Lincoln appeals, arguing that the trial court erred by certifying a single-issue class for Count 3. Bezich cross-appeals, arguing that the trial court erred by declining to certify a class for Count 1 and Count 2. We conclude the trial court acted within its discretion by certifying a single-issue class for Count 3. However, we conclude that Count 1 and Count 2 should have similarly been certified for class treatment. Therefore, we affirm in part, reverse in part, and remand. * * *

Concluding that class certification for the purpose of determining liability is proper for each of Bezich’s three breach of contract claims, we affirm the trial court’s judgment as to Count 3, reverse as to Count 1 and Count 2, and remand for further proceedings consistent with this opinion.

In Charles R. Whitlock v. Steel Dynamics, Inc., a 22-page, 2-1 opinion, Chief Judge Vaidik writes:
Indiana Code section 34-11-6-1 provides that a “person who is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed.” Legal disability includes mental incompetence.

In this case, Charles R. Whitlock—who was injured when a crane failed to stop and struck him in the face, causing lacerations to his forehead and eyelid—filed his complaint eight days after the two-year statute of limitations expired. He claims, however, that he was mentally incompetent when the cause of action accrued. The trial court granted summary judgment in favor of Steel Dynamics, Inc., on grounds that Whitlock filed his complaint after the statute of limitations expired.

We find that the designated evidence in this case is not sufficient to establish a material dispute of fact because Whitlock’s affidavits address the central issue of the case—whether Whitlock was mentally incompetent—without giving details sufficient to support the conclusory statements. We therefore affirm the trial court. * * *

Friedlander, J., concurs.
May, J., dissents with opinion [that begins, at p. 18] “The issue of unsoundness of mind is ordinarily a question for the trier of fact.” Collins v. Dunifon, 163 Ind. App. 201, 208, 323 N.E.2d 264, 269 (1975). I believe the affidavits from Kristina and Gaultney were sufficient to create such a question of fact for the jury. As that makes summary judgment inappropriate, I must respectfully dissent.

NFP civil decisions today (5):

Delmar P. Kuchaes v. Public Storage, Inc. (mem. dec.)

M.D. v. Indiana University Health Bloomington Hospital (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of J.L., T.L. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

The Lewallen Revocable Trust, et al. v. Fifth Third Mortgage Company (mem. dec.)

Amanda and Joseph Emanuele and Alicia Emanuele v. Winford E. Moore, III (mem. dec.)

NFP criminal decisions today (4):

M.S. v. State of Indiana (mem. dec.)

Antione Nelson v. State of Indiana (mem. dec.)

Ricci Dale Davis, Jr. v. State of Indiana (mem. dec.)

Ashley J. Todd v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on June 2, 2015 11:23 AM
Posted to Ind. App.Ct. Decisions