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Friday, June 15, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

Robert S. Beineke and Joan S. Beineke v. Chemical Waste Management of Indiana, LLC is a statute of limitations case - which one is applicable?

This case revolves entirely upon resolution of which statute of limitations applies in this case. “The applicable statute of limitations is determined by identifying the nature or substance of the cause of action.” * * * Chemical Waste argues that either one of two statutes applies in this case: Indiana Code Section 34-28-5-1(c)(2), which provides a two-year limitations period to bring an action based upon an alleged violation of an ordinance, or IC 34-11-1-2(a), which provides a “catch-all” ten-year limitations period for actions arising after September 1, 1982, that are not governed by any other statute of limitations. The Beinekes do not make any argument that they filed suit within either a two-year statute of limitations or ten-year statute of limitations. They focus exclusively on the twenty-year statute of limitations governing claims based on written contracts entered into before September 1, 1982, as provided by IC 34-11-2-11. * * *

Assuming the Beinekes had concurrent authority with the Zoning Administrator to bring an action to enforce the 1974 “covenants” or to seek damages under them, they had at most ten years from the accrual of a cause of action against Chemical Waste to file suit pursuant to the “catch-all” statute of limitations in Indiana Code Section 34-11-1-2.5 The Beinekes make no argument that they filed suit within such a time frame.

Donald Jensen, et al. v. The City of New Albany, et al. is an 18-page opinion, including a concurring opinion beginning on p. 14. Judge Vaidik writes:
Appellants contend that the trial court erred in refusing to enforce the reversionary clause in a deed. Because the deed transferred the subject real estate to the State, an entity with the power of eminent domain, the reversionary clause is not enforceable. We therefore affirm the judgment of the trial court. * * *

Because we base our decision on Dible and the principle that a reversionary clause cannot be enforced against an entity with the power of eminent domain, we need not address any of Appellants’ arguments concerning deed interpretation. No matter how we interpret the 1960 Deed, the reversionary clause cannot be enforced against the State. * * * Affirmed.

BARNES, J., concurs BAILEY, J., concurs with separate opinion. [ which begins:] I concur with the majority’s conclusion that the reversionary clause in the 1960 Deed is unenforceable. I write separately, however, because I disagree with the majority’s analysis and conclusion in footnote five regarding the applicability of Indiana Code Section 32-24-1-15(a)(4) (2004).

The ILB has had several entries on this case, under headings including "Heirs argue that deed required land to be used for a public purpose," and "Fate of subdivision turns on 1935 deed." See the list here.

NFP civil opinions today (2):

Bart Taylor v. Lauren Taylor (NFP) - "Bart has not established that the trial court abused its discretion when it equally divided the marital estate. We affirm."

Marie Pollard v. Luke Ogden (NFP) - "Once Ogden advised the trial court that the sums agreed upon in mediation had been tendered, it would then have been incumbent upon Pollard to point out that the first tender was arguably two days late and Ogden was thus liable to pay $10,000.00. Pollard was not present to do so. Nor did she seek relief pursuant to Trial Rule 60(B)(1) by presenting a claim of mistake, surprise, or excusable neglect. Rather, she chose to allege misconduct pursuant to Trial Rule 60(B)(3), but is unable to satisfy her requisite burden of proof. The trial court did not abuse its discretion by denying Pollard equitable relief."

NFP criminal opinions today (8):

Michael Sweatt v. State of Indiana (NFP)

Keith B. Wigfall v. State of Indiana (NFP)

Steven L. Oliver v. State of Indiana (NFP)

Kenneth Simpson v. State of Indiana (NFP)

John J. Coleman v. State of Indiana (NFP)

Jason A. Hoorneart v. State of Indiana (NFP)

Raymond Williams v. State of Indiana (NFP)

Anwar J. Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on June 15, 2007 01:07 PM
Posted to Ind. App.Ct. Decisions