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Wednesday, June 07, 2006

Ind. Decisions - Court of Appeals decides four today

In Cordage Auburn, Inc., et al. v. The Revocable Trust Agreement of Bryce B. Treadwell, et al., a 33-page opinion, Judge Sullivan writes:

Appellants-Defendants, Auburn Cordage, Inc. and Auburn Campground, LLC, challenge the trial court’s grant of summary judgment in favor of Appellees-Plaintiffs, the Revocable Trust Agreement of Bryce B. Treadwell, the Estate of Bryce B. Treadwell, Cindee Crosby, Misty Treadwell, and Terry and April Freeman. The Appellants claim that the trial court erred in granting summary judgment because genuine issues of material fact exist with regard to whether the Estate is entitled to recover, under a theory of equitable subrogation, the sums paid to Union Federal Bank from certain life insurance policies assigned as collateral for a loan to Classic City Camping, LLC.1 The Appellants further claim that the trial court erred in granting summary judgment because genuine issues of material fact exist with regard to whether Classic City was in default under a loan with the Bank, and whether the mortgage agreement between Auburn Cordage and the Bank was supported by adequate consideration. The Appellants also claim that the trial court exceeded its authority in concluding that foreclosure is appropriate. * * *

Conclusion. The trial court properly concluded that the loan was in default and that the mortgage was supported by sufficient consideration. Although the Estate as guarantor may have had a right to seek indemnity from Classic City for the amounts the Estate paid on Classic City’s loans, and the Estate as the holder of the Note may seek payment on the balance of the loan, the Appellees are not entitled to equitable subrogation with regard to the insurance policy proceeds. Finally, the trial court did not err in concluding that foreclosure was appropriate.

The judgment of the trial court is affirmed in part, reversed in part, and the cause is remanded for proceedings not inconsistent with this opinion.

In Deann Thomas v. Lewis Engineering, a 9-page opinion, Judge Najam writes:
We conclude that the duty rule applied in Essex is the correct one to apply in negligent misrepresentation cases. Specifically, a professional owes no duty to one with whom it has not contracted unless the professional has actual knowledge that the third party would rely on the professional’s opinion or service. Because Thomas had no relationship with Lewis, she had no right to rely on its survey. And, in fact, Thomas did not rely on Lewis’ survey. Instead, she argued that the survey was inaccurate when she defended against Owens’ suit and filed her own counter suit. In sum, Thomas has shown neither a duty arising from a relationship with Lewis nor a duty arising from Lewis’ actual knowledge that Thomas would rely on its survey. Thus, Thomas has failed to state a valid claim under Indiana law.1 As such, the trial court did not err when it granted summary judgment in favor of Lewis on Thomas’ negligent misrepresentation claim. Affirmed.
In Warren Gutermuth v. State of Indiana, a 34-page opinion (with Judge Friedllander dissenting on p. 30 and Judge May concurring on p. 34), Judge Crone begins:
Case Summary. In this belated appeal, Warren Gutermuth challenges his twenty-four-year aggregate sentence for three counts of class C felony child molesting.

We affirm. Issues. We restate the two issues Gutermuth presents as follows: I. Whether he may challenge his sentence pursuant to Blakely v. Washington, 542 U.S. 296 (2004); and II. Whether the trial court properly sentenced him.

For an analysis of Gutermuth, see this entry by Michael Ausbrook in his blog, INCourt.

In Richard Brown v. State of Indiana, a 28-page opinion, Judge Crone concludes:

In summary, the trial court did not abuse its discretion in denying Brown’s motion for mistrial. The criminal confinement statute is unconstitutionally vague as applied to Brown, and we therefore reverse those convictions. The identity deception statute is not unconstitutionally vague as applied to Brown. There was sufficient evidence to support Brown’s guilty verdicts for three counts of identity deception. We remand for judgment of conviction to be entered for the identity deception guilty verdicts and for resentencing. Finally, the trial court had statutory authority to impose jury costs, but the $400 fee exceeded its statutory authority of two dollars. Consequently, we remand for entry of a two-dollar jury fee. Affirmed in part, reversed in part, and remanded.
The Indianapolis Star has a brief story on the opinion here:
Indiana's criminal confinement law is too vague to allow the conviction of a man who tricked men into stripping by posing as a radio disc jockey, the Indiana Court of Appeals unanimously ruled Wednesday.

The court set aside Richard C. Brown's March 2005 convictions on three counts of criminal confinement but upheld his three convictions for identity deception. The three-judge panel sent the case back to Marion Superior Court for re-sentencing.

Brown was sentenced to five years in prison, plus three years suspended, after his trial in 2005.

Brown was on house arrest for criminal confinement in July 2004 when he phoned victims and posed as a WNOU-FM (Radio Now) disc jockey holding a contest with a prize of $50,000 cash or a car, according to court records.

Three men came to Brown's home. Two undressed, but the third noticed Brown's home detention ankle bracelet and left. He called the radio station, which notified police.

The Court of Appeals agreed with Brown's contention that the wording of Indiana's law does not make it clear that his behavior constituted criminal confinement, because no force was used.

Judge Terry Crone wrote that the vagueness of the language conceivably could make it a crime to trick someone into going to a surprise birthday party.

Posted by Marcia Oddi on June 7, 2006 12:00 PM
Posted to Ind. App.Ct. Decisions