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Tuesday, July 18, 2006

Ind. Decisions - Court of Appeals decides six today

In James Bruno v. Wells Fargo Bank, an 18-page opinion, Judge Riley concludes:

Based on the foregoing, we conclude: (1) Bruno did not effectively revoke his guarantee on Columbo’s note; (2) no fiduciary relationship existed between Bruno and Wells Fargo; (3) Wells Fargo did not fail to mitigate its damages; (4) Bruno’s due process rights were not violated by denial of an in-person hearing; and (5) insufficient evidence was presented as to damages and attorney’s fees. Accordingly, we remand this case to the trial court on the issue of damages only, with instructions to request that the parties present additional evidence for an accurate determination of the award.
In Elizabeth MacGill v. Tina Reid d/b/a Reid's Housekeeping, a 13-page opinion in a case involving a covenant not to compete, Judge Bailey writes:
Although Reid had a legitimate protectible interest in Reid Housekeeping’s good will, the covenant was unreasonable in the type of activity restricted because it went beyond the scope of Reid’s Housekeeping’s good will interest of protecting its current customers and housekeepers. Therefore, we conclude that the trial court erred by concluding that the parties’ covenant not to compete was enforceable. Accordingly, the trial court erred by denying MacGill’s summary judgment motion and granting Reid’s cross motion for summary judgment.

For the foregoing reasons, we reverse the trial court’s order denying MacGill’s motion for summary judgment and granting Reid’s cross motion for summary judgment.

Shannon Frye v. State of Indiana - appeal of conviction, affirmed.

Izaak Walton League of America, Inc. & Cedar Creek Wildlife Project, Inc. v. DeKalb County Surveyor's Office & Indiana Department of Natural Resources, is a 23-page opinion (with a dissent starting on p. 21), involving AOPA provisions IC 4-21.5-5-13 and IC 4-21.5-3-33. Judge Barnes concludes:

We conclude the trial court here had both subject matter jurisdiction and jurisdiction over the particular case. The record filed by Walton and Cedar Creek was adequate for the trial court to review the claim made in their petition for judicial review. We reverse the dismissal of the petition and remand for further proceedings consistent with this opinion.

FRIEDLANDER, J., concurs.
MATHIAS, J., dissents with separate opinion. [that begins]

As I cannot conclude that Walton and Cedar Creek presented “an adequate agency record” for purposes of judicial review under AOPA, I respectfully dissent.

The majority has determined that Walton and Cedar Creek filed the “essential” items for judicial review of the DNR’s decision. This determination is unnecessary—the General Assembly has already defined which items are essential for that review in Indiana Code section 4-21.5-3-33.

In In the Matter of Z.H., a 12-page opinion, Judge Baker writes:
Appellant-respondent Z.H. appeals from the juvenile court’s order requiring him to register as a sex offender. Specifically, Z.H. raises the dispositive argument that the State did not establish by clear and convincing evidence that he is likely to repeat an act that would be a sex offense if committed by an adult. Finding that the State did not meet its burden, we reverse the judgment of the juvenile court. * * *

Thus, we conclude that the juvenile court erred in concluding that there is clear and convincing evidence that Z.H. is likely to repeat an act that would be a sex offense if committed by an adult. The judgment of the juvenile court is reversed.

In Todd Green v. Hancock County Board of Zoning Appeals and Joyce Holmes, a 10-page opinion relating to zoning, Judge Riley writes:
Appellants contend that the trial court erred in affirming the BZA’s decision to grant a special exception to Holmes for the construction of a banquet hall-wedding reception facility in an agriculturally zoned district. Specifically, they assert that by interpreting the special exception of commercial recreational use as including a banquet hall-wedding reception facility, the BZA acted as a quasi-legislative entity. Furthermore, they argue that, even if the BZA is allowed to interpret its own zoning ordinance, its interpretation in the instant case is unreasonably broad. * * *

While an argument can be made that the BZA acted in a quasi-legislative fashion because it interpreted a law, and its interpretation could be used generally and prospectively; the better view of the BZA’s decision is that the BZA interpreted the zoning ordinance to resolve an existing controversy – Holmes’ application for a special exception – and its interpretation had the effect of determining the legal rights of specific persons. * * *

[W]e conclude that the BZA did not abuse its discretion by including a banquet hall-wedding reception facility within the definition of commercial recreational use. * * *

In light of the foregoing, we find that the trial court properly concluded that the BZA correctly interpreted its zoning ordinance by determining that Holmes’ proposed banquet hall-wedding reception facility fell within a special exception, as provided for in the zoning ordinance.

Posted by Marcia Oddi on July 18, 2006 11:05 AM
Posted to Ind. App.Ct. Decisions