The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 6 today (and 16 NFP)

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Wednesday, May 30, 2007

Ind. Decisions - Court of Appeals issues 6 today (and 16 NFP)

For publication opinions today (6):

In Anthony N. Stewart v. Signe L. (Stewart) Vulliet, an 18-page opinion, Judge Sharpnack writes:

Anthony N. Stewart (“Father”) appeals the trial court’s grant of a motion to dismiss filed by Signe L. (Stewart) Vulliet (“Mother”). Father raises three issues, which we consolidate and restate as whether the trial court abused its discretion by dismissing child custody and visitation issues based upon inconvenient forum. On cross appeal, Mother argues that the trial court abused its discretion by finding that Mother waived any argument regarding their child’s home state under the Uniform Child Custody Jurisdiction Act (“UCCJA”), Ind. Code §§ 31-17-3-1 to -25. We affirm in part, reverse in part, and remand.

The relevant facts follow. Mother and Father married in August 1992 in the State of Washington. They lived in Washington until May 2003, when they relocated to Indiana. Mother’s family lives in Washington, while Father’s family lives in Indiana. * * *

The Washington court clearly gave Mother a more favorable custody arrangement and visitation schedule than the Indiana court had ordered or than Douglass had recommended. The timing and sequence of events in this case give the appearance that Mother was attempting to manipulate the UCCJA to gain a favorable result. As in Bowles, “[w]e cannot allow such manipulation to be rewarded.” Bowles, 721 N.E.2d at 1250. We conclude that, as in Bowles, the trial court erred by granting Mother’s motion to dismiss the custody and visitation issues based upon inconvenient forum. See, e.g., id.

For the foregoing reasons, we affirm the trial court’s determination that Mother waived any argument regarding A.S.’s home state, we reverse the trial court’s grant of Mother’s motion to dismiss the custody and visitation issues, and we remand for proceedings consistent with this opinion.

Terri A. Troyer v. Ronald J. Troyer - "The marriage of Appellant-Respondent Terri A. Troyer (“Terri”) and Appellee-Petitioner Ronald J. Troyer (“Ronald”) was dissolved. On the following day, the trial court found Terri in contempt of court for presenting six post-trial motions. Terri now appeals, challenging the allocation of a tax refund and the trial court’s determination that she was in direct contempt of court. We affirm in part and reverse in part."

"Issues. Terri presents three issues for review: I. Whether the trial court abused its discretion by allocating the parties’ federal income tax refund to the payment of charge account debt rather than allocating it to Terri for the payment of attorney’s fees [ILB - the CA said no]; II. Whether the trial court abused its discretion by denying Terri’s motion for a continuance to permit her fourth attorney to adequately prepare for a hearing [CA - no]; and III. Whether the trial court erred by finding Terri in direct contempt of court and ordering her to pay $500.00 as a sanction. [CA - yes]"

In Richard Wolfe, D.O. v. Estate of Donald Custer , a 21-page opinion, Judge Vaidik writes:

Richard Wolfe, D.O. appeals the judgment in favor of Rosetta Custer (“Rosetta”), for herself and as personal representative of the estate of her late husband, Donald Custer (“Donald”) (collectively, “the Custers”). Wolfe essentially challenges the sufficiency of the evidence, arguing that the trial court erred by entering judgment against him because the Custers failed to present expert medical testimony demonstrating that any increased risk of harm caused by Wolfe was a substantial factor in causing Donald’s harm and showing that Donald’s medical expenses were necessary or causally related to any act or omission by Wolfe. Concluding that the evidence was sufficient to support the jury’s verdict, we affirm the trial court’s entry of judgment in favor of the Custers and against Wolfe. * * *

In summary, the evidence was sufficient to support a finding of medical malpractice against Wolfe, and the trial court did not err by entering judgment for $432,000.00 in favor of the Custers and against Wolfe.

In Trustcorp Mortgage Company v. Metro Mortgage Company, Inc. , a 22-page opinion with Chief Judge Baker's dissent beginning on p. 20, Judge Friedlander writes:

Trustcorp Mortgage Company (Trustcorp) appeals the trial court’s order denying its motion for summary judgment and granting summary judgment in favor of Metro Mortgage Co., Inc. (Metro). We affirm. * * *

[W]e conclude that the designated evidence establishes that Metro did not contract to provide a perfect appraisal, but that it agreed to produce origination documents, including an appraisal, in accordance with the requirements drafted by Trustcorp and set forth in the Buy/Sell Agreement. Furthermore, in obtaining a licensed appraiser, and in satisfying all other requirements set forth in Sections 106 and 106.1, Metro fulfilled its contractual obligations and was therefore not in breach of its contract with Trustcorp when it refused to repurchase the Schulke loan. The fact that both Trustcorp and Fannie Mae subsequently purchased the Schulke loan further substantiates our conclusion that Metro’s origination documents did in fact “qualify for” Fannie Mae. Judgment affirmed.

CRONE, J., concurs. BAKER, C.J., dissents with separate opinion [which begins:] I respectfully dissent from the majority’s interpretation of the Buy/Sell Agreement and from the ultimate disposition of this matter. Initially, I quarrel with the application of the rule by which we construe an ambiguity in contract language against the drafting party. Here, the contracting parties were two large, sophisticated businesses that regularly entered into agreements that are similar to the one at issue herein. Under these circumstances, I believe that there should not be an automatic presumption against the drafting party, inasmuch as both parties are on equal footing with respect to the content, negotiation, and application of the agreement.

Moreover, I find a well-established, long-standing rule to be instructive: “Public policy holds that he who is best able to avoid a loss should bear it.”

Brett Gibson v. Thomas A. Neu and Elizabeth A. Neu , a 25-opinion, concludes: "In summary, we conclude that the trial court erred by granting summary judgment to the Neus and Washington Mutual regarding the release of Gibson’s mortgage. However, we conclude that the trial court properly granted the Neus and Washington Mutual equitable subrogation over Gibson’s mortgage."

In Safe Auto Insurance Company v. Farm Bureau Insurance Company, et al. , a 9-page opinion on rehearing, the Court reverses its earlier opinion (Nov. 8, 2006 - see ILB entry here - 2nd case) affirming the trial court. Judge Robb concludes:

We stand by our original determination regarding Safe Auto’s obligation under its policy language to cover Duran’s vicarious liability. The policy agrees to indemnify Duran for vicarious liability and pursuant to a Michigan statute, she was vicariously liable for this claim.3 For that reason, her omissions with regard to Badillo – the omissions primarily focused on by the parties – are not material, because Duran would have been vicariously liable regardless of who was driving her vehicle. But also for that reason, her omission with regard to her move to Michigan is material. As Safe Auto has noted, the Michigan statute imposes vicarious liability that Indiana law, which would apply had the accident occurred here, would not. As the move preceded the policy renewal, Duran is not covered because her move to Michigan directly affected the risk accepted as well as the loss incurred. The trial court erred in granting summary judgment to Farm Bureau and in denying it to Safe Auto. Reversed.

NFP civil opinions today (5):

Brian D. Hodges v. Eli Lily Federal Credit Union (NFP) - "Regardless of whether or not Hodges was properly served, the issue is now moot as the judgment has been fully satisfied."

Granger Family Dentistry v. Preferred Health Care (NFP) - "The small claims court did not err as a matter of law by determining that Granger was contractually obligated to pay Preferred Health $1,800.00 annually and owed the unpaid balance for the contract year of mid-2006 to mid-2007."

Gary F. Otto v. Peggy S. Fox (NFP) - "Gary F. Otto appeals the trial court’s ex parte order for protection. We reverse and remand with instructions. * * * Otto filed his request with the trial court nine days after the order was issued, and yet the trial court denied his motion without explanation. At the very least, Otto has established prima facie error. “On the face of it,” the trial court violated Otto’s due process rights by denying him the opportunity to defend himself in this matter. Therefore, we reverse the trial court’s order denying Otto’s motion for hearing, and we remand for the trial court to schedule a hearing to occur within thirty days of the date of this opinion."

Adoption of C.M.M.; Julie P. Parker v. Annamaria Miller (NFP) - "Appellant-respondent Julie Pastorious, formerly Julie Parker, appeals from the trial court’s order granting appellee-petitioner Annamaria Miller’s petition to adopt Julie’s biological child, C.M.M., and terminating Julie’s parental rights. Specifically, Julie contends that there is insufficient evidence in the record supporting the trial court’s conclusion that Julie’s consent to the adoption was not statutorily required. Finding no error, we affirm the judgment of the trial court."

Ted A. Czanderna v. Noreen F. Fear (NFP) - "Appellant-Respondent, Ted A. Czanderna (Czanderna), appeals the trial court’s protective order enjoining him from contact with Appellee-Petitioner, Noreen Faye Fear (Fear), and members of Fear’s family, for a period of two years. We affirm."

NFP criminal opinions today (11):

Mark A. Darnell v. State of Indiana (NFP)

Adam Ross v. State of Indiana (NFP)

Christopher Mershon v. State of Indiana (NFP)

Brian K. Barrick v. State of Indiana (NFP)

Anquan Walters v. State of Indiana (NFP)

David Parado v. State of Indiana (NFP)

Timothy J. Ryon v. State of Indiana (NFP)

Harold W. Craigo, Jr. v. State of Indiana (NFP)

A.S. v. State of Indiana (NFP)

Brandon Gregg v. State of Indiana (NFP)

Michael Nunez v. State of Indiana (NFP)