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Friday, January 12, 2007

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Dean Maust, II v. Estate of Matthew B. Bair, a 12-page opinion, Judge Baker wrties:

Appellant-defendant Dean Maust, II appeals the trial court’s denial of his motion for pauper counsel and the trial court’s order granting the Estate of Matthew B. Bair, by Personal Representative Melody Bair (the Estate), and Alexander Matthew Gene Bair’s (Alexander) (collectively, the Plaintiffs) motions for default judgment. Finding no error, we affirm the trial court’s judgment. * * *

Maust, who had the burden of showing that he met the statutory requirements for the appointment of counsel, has failed to meet that burden. Indeed, the trial judge that denied Maust’s pauper counsel motion was the same judge that presided over Maust’s criminal case wherein Maust was convicted beyond a reasonable doubt of murdering Bair; thus, the trial judge’s notation that counsel would not be assigned at the public’s expense can be considered an indication that Maust had sufficient means—specifically, that Maust would not require appointed counsel given that the particular issue presented in the wrongful death action was whether Bair’s death was caused by a wrongful act of Maust—and that Maust did not have a colorable bona fide dispute over issues warranting the expense of counsel in this case claiming that Bair’s death was caused by a wrongful act of Maust. To be sure, Indiana Code section 34-10-1-2(d)(2) provides that the trial court “shall deny” an applicant’s motion for pauper counsel where the applicant is unlikely to prevail on his defense. Accordingly, we conclude that the court did not err by denying Maust’s motion for appointed counsel. See, e.g., Parks v. Madison County, 783 N.E.2d 711, 727 (Ind. Ct. App. 2002) (holding that “even a cursory reading of Sholes vindicates the trial court’s ruling” declining to appoint pauper counsel even though it granted the applicant’s motion for waiver of the filing fee because the trial court determined that the defendant’s claims were without merit); Boring v. Boring, 775 N.E.2d 1158, 1163 (Ind. Ct. App. 2002) (affirming the trial court’s determination that the incarcerated husband had sufficient means to proceed without appointed counsel where the nature of the incarcerated husband’s dispute was not complex). The judgment of the trial court is affirmed.

In Estate of Juliana Robertson; James Nye v. Lynn D. Robertson, a 14-page opinion (including a dissent by Judge Robb beginning on p. 12), Judge Sullivan writes:
Appellant-Petitioner, James Nye, challenges the trial court’s order invalidating a testamentary trust provision in his mother’s will as an illegal restraint of marriage and awarding his step-father, Appellee Lynn Robertson, a life-estate in the real estate at issue. Upon appeal, Nye argues that the trial court’s invalidation of the provision and award of a life estate to Robertson was an error of law. We affirm. * * *

BARNES, J., concurs.
ROBB, J., dissents with opinion: I dissent because the majority’s analysis of Nye’s third argument appears to elevate form over substance, which goes against Indiana’s record of decrying legal arguments that do so in various contexts. * * *

I acknowledge Indiana’s recognition of the difference between conditions and limitations, as well as the importance of classifying language in an instrument transferring property as either a limitation, marking the period that determines an estate, or a condition, rendering an estate liable to defeat. However, the distinction is only drawn where it is logical to do so, which is not presently the case. Here, the clause “or until he remarries” is a restraint of marriage, and void in light of public policy against such restraints. Regardless of how the instrument is worded, or whether the restrictive language is classified as a condition or a limitation, Lynn gets only a life estate.

In Citizens Insurance Company v. Cletus Ganschow, Louis Pipito, II and Standard Mutual Insurance Company, a 16-page opinion, Judge Baker writes:
This case involves the interpretation of two automobile insurance policies. Although both insurance companies agree that an injured passenger qualified as an insured under both policies, they disagree as to the amount of damages that each should pay. * * *

Because Standard Mutual’s named insured was the owner of the vehicle involved in the accident, the condition required to trigger the excess provision of Citizen Insurance’s “other insurance” clause was satisfied. And Standard Mutual’s was not. That said, it is apparent that the policies’ respective provisions in this case are capable of being harmonized and permit us to give effect to the parties’ intent. Indeed, the parties and the trial court all agree that the excess provision set forth in the first paragraph of Standard Mutual’s “other insurance” clause does not apply, but Citizen Insurance’s does. Appellant’s App. 11, 31-32. Hence, contrary to Standard Mutual’s contention that the “other insurance” clauses at issue establish a conflict, it is apparent that Standard Mutual provides UM coverage for Ganschow’s claims on a primary basis and Citizens Insurance’s UM covers the excess.

In accordance with such an application of the policies’ terms, Citizens Insurance’s excess coverage is not reached in this case in light of Standard Mutual’s $100,000 limit of primary UM coverage. Thus, because Citizens Insurance’s $50,000 limit of liability is less than Standard Mutual’s $100,000 primary UM coverage limit, the “excess” coverage provision of Citizens Insurance’s policy is not implicated. As a result, we conclude that the trial court erred in granting Standard Mutual’s motion for summary judgment and prorating UM coverage between the two companies.

The judgment of the trial court is reversed and this cause is remanded with instructions to enter judgment for Citizens Insurance with respect to Ganschow’s UM coverage claim.

Randolph County v. Leanne Chamness - "Appellant-defendant Randolph County, Indiana (Randolph County), brings this interlocutory appeal from the trial court’s denial of Randolph County’s motion to transfer venue. In particular, it argues that Randolph County is the preferred venue pursuant to the Indiana Trial Rules. Finding that the injury complained of by appellee-plaintiff Leanne Chamness occurred in Randolph, rather than Delaware, County, we reverse the judgment of the trial court and order it to grant the motion to transfer venue." There is a dissent.

NFP civil opinions today (1):

Cathleen Quigley v. Town Council, Town of Whitestown, Indiana, et al (NFP) - judicial immunity.

NFP criminal opinions today (7) (link to cases):

State of Indiana v. Paola Demucha (NFP)

Kevin Parrish v. State of Indiana (NFP)

Charles Brown v. State of Indiana (NFP)

Anthony C. Renshaw v. State of Indiana (NFP)

Jeffrey B. Shelton v. State of Indiana (NFP)

Eugenia Crowe-Phillips v. State of Indiana (NFP)

Joseph L. Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on January 12, 2007 01:35 PM
Posted to Ind. App.Ct. Decisions