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Friday, December 30, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 26 NFP memorandum decision(s))

For publication opinions today (3):

In Tina L. Hemingway v. John P. Scott, an 11-page opinion, Judge Crone writes:

John Scott conveyed his property to himself and his girlfriend Tina Hemingway. Earlier that day, Hemingway had signed a contract agreeing that if she cheated on Scott or failed to contribute to the property’s maintenance and expenses, she would reconvey her interest in the property to him. Hemingway later filed a real property partition action against Scott, who filed a counterclaim for breach of contract and replevin. The trial court found Hemingway to be in breach of contract and ordered that she execute a quitclaim deed conveying to Scott all her rights, title, and interest in the property. Hemingway seeks review of the trial court’s interlocutory order, arguing that the deed extinguished the contract pursuant to the doctrine of merger and that the contract was unenforceable as against public policy. Finding that the doctrine of merger does not apply and that the contract is not rendered unenforceable for public policy reasons, we affirm.
ILB: See also this post by Doug Masson: "COA upholds contract requiring forfeiture of real estate as penalty for infidelity."

In Richard Brown and Janet Brown v. City of Valparaiso, Indiana , a 17-page opinion, Judge Najam writes:

The Browns first contend that they have a private cause of action under the Flood Control Act (“the Act”) and, thus, are entitled to pursue their claim that the City was negligent per se when it violated the Act. Accordingly, they assert that the trial court erred when it entered summary judgment in favor of the City on this issue and denied their motion for summary judgment. We cannot agree. * * *

The Browns also contend that they “have the right to pursue monetary damages for the [City’s] creation and maintenance of a public nuisance.” Appellants’ Br. at 22. The Browns point out that Indiana Code Section 13-2-22-13 provides in relevant part that “any structure, obstruction, deposit, or excavation in or on any floodway . . . which will adversely affect the efficiency of or unduly restrict the capacity of the floodway . . . [is] declared to be and to constitute [a] public nuisance[].” The Browns maintain that the Hotter Detention Facility constitutes a public nuisance and, as such, they are entitled to damages for the flooding they sustained to their real property. * * *

Here, the Browns contend that they are entitled to bring a private action for public nuisance because they suffered a “special and peculiar injury” apart from the general public. In particular, they assert that they were the only residents who sustained flooding to their real property “due to the obstructed floodway.” * * *

[W]e hold that the Browns’ damage was neither special nor peculiar for purposes of their public nuisance claim. Thus, the trial court did not err when it entered summary judgment in favor of the City on that claim.

In Dalton Corporation v. Larry Myers and Loa Myers , a 9-page opinion, Judge Robb writes:
Dalton Corporation (“Dalton”) appeals the trial court’s denial of its motion to set aside a default judgment, raising two issues for our review, which we consolidate and restate as whether the trial court abused its discretion in denying Dalton’s motion. Concluding the trial court did not abuse its discretion in denying Dalton’s motion to set aside default judgment, we affirm. * * *

In addition, we take this opportunity to further acknowledge the fact our courts favor deciding cases on the merits and prefer attorneys work together prior to one party seeking to hold another in default. See id. at 659 (recommending lawyers “pick up a phone and remind [opposing] counsel of an imminent deadline” rather than wait for the opposing party to be in default). However, it does not appear there was any contact between the Myerses’ counsel and Dalton’s counsel prior to the Myerses filing the complaint. Thus, it is unlikely the Myerses’ counsel even knew the identity of Dalton’s counsel. In addition, the Myerses properly served Dalton via CSC, and when Dalton neither filed an appearance nor any pleadings, the Myerses still waited nearly three months before filing their motion for default judgment. Because Dalton did not file an appearance, it is likely the Myerses knew only how to contact Dalton via its registered agent, CSC, and the Myerses sent copies of the complaint, motion for default judgment, and the trial court’s order granting default judgment to CSC, all of which were forwarded to Dalton. We are therefore hard-pressed to believe the Myerses could have done anything more to put Dalton on notice.

In sum, the trial court properly considered the parties’ equitable considerations and concluded Dalton did not present exceptional circumstances to warrant setting aside the default judgment pursuant to Rule 60(B)(8). We see no error and conclude the trial court did not abuse its discretion in denying Dalton’s motion to set aside the default judgment.

NFP civil decisions today (8):

In Re the Marriage of: Mark Alan Grube, Jr. v. Brittany P. Grube (mem. dec.)

In the Matter of the Revocable Living Trust Agreement of Joseph W. Dague and the Revocable Living Trust Agreement of Dorothy K. Dague, et al. v. Jean E. Galloway and Joseph E. Dague (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: K.T. and K.O. (minor children) and R.T. (father) v. The Indiana Department of Child Services, et al. (mem. dec.)

Ricardo S. Trevino v. Comprehensive Care, Inc. (mem. dec.)

Jason Tye Myers v. Nalin Desai, et al. (mem. dec.)

Linda H. Gavel v. Vaughan & Vaughan and Charles V. Vaughan (mem. dec.)

Hugo Torres v. Dean White and Town and Country Remodeling, Inc. (mem. dec.)

Allison K. Harper v. James Likens and Jennifer Likens (mem. dec.)

NFP criminal decisions today (14):

L.P. v. State of Indiana (mem. dec.)

Devin Brookins v. State of Indiana (mem. dec.)

Robert A. Davis v. State of Indiana (mem. dec.)

Robert Coyle v. State of Indiana (mem. dec.)

Terry Smith v. State of Indiana (mem. dec.)

Joseph R. Keller v. State of Indiana (mem. dec.)

Asa Hairston v. State of Indiana (mem. dec.)

Marqwan D. Beserra v. State of Indiana (mem. dec.)

Jason A. Hill v. State of Indiana (mem. dec.)

Robert L. Dowell v. State of Indiana (mem. dec.)

Michael Reid v. State of Indiana (mem. dec.)

Timothy L. Sallee, Jr. v. State of Indiana (mem. dec.)

Lisa Orwig v. State of Indiana (mem. dec.)

Jason E. Hammock v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on December 30, 2016 11:35 AM
Posted to Ind. App.Ct. Decisions