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Tuesday, June 19, 2007

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Marvin M. Trietsch v. Circle Design Group, Inc., et al. , a 17-page opinion, Judge Kirsch writes:

Marvin M. Trietsch (“Trietsch”) appeals the trial court’s grant of summary judgment in favor of defendants Circle Design Group, Inc. (“CDG”) and its board of directors, Kerry Smith, Rita J. Smith, Jeffery L. Wylie, and William R. Stella (collectively the “Directors”). We restate Trietsch’s issue and its various subparts as: whether the trial court properly granted summary judgment in favor of CDG and the Directors on Trietsch’s claims, which allege violations of Indiana’s dissenter’s rights statutes, breaches of fiduciary duties, and conversion. We affirm.
NFP civil opinions today (4):

In Richard U. Pflanz and Delores J. Pflanz v. Merrill Foster d/b/a Friendly Foster's Service and Sunoco (NFP) , a 7-page opinion dealing with the statute of limitations for bringing underground storage tank claims, Judge Kirsch writes:

The Pflanzes argue that the applicable ten-year statute of limitations4 did not begin to run until either the discovery of contamination or the payment of remediation, and according to the amended complaint they did not discover any environmental issues on the property until September 2001. Thus, they claim their action is timely. * * *

Under Indiana’s UST law IC 13-23-13-8, a plaintiff is entitled to receive contribution from a previous owner or operator of USTs if the release occurred during that individual’s ownership or operation. Our Supreme Court ruled that IC 13-23-13-8 is a statutory claim for indemnification and contribution that has a ten-year statute of limitations. Bourbon Mini-Mart, Inc. v. Gast Fuel and Services, Inc., 741 N.E.2d 361, 371-72 (Ind. Ct. App. 2000), aff’d in relevant part by 783 N.E.2d 253 (Ind. 2003). The Supreme Court has also held that the statute of limitations is “discovery-based” and begins to run once the claimant knew or, through the exercise of reasonable diligence, should have known of the damage. Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 842-43 (Ind. 1992).

The question before us is, When does the running of the ten-year statute of limitations commence? The Pflanzes contend that the statute of limitations did not begin to run until the discovery of the contamination or until remediation costs are incurred. Foster argues that it began upon the purchase of the property. The trial court found in this case that, when the Indiana Legislature enacted the UST contribution statutes in 1987 and amended the statutes in 1991 that the Pflanzes knew or through the exercise of reasonable diligence should have known about onsite contamination, such that the statute of limitations began to run no later than 1991. We agree. * * *

We hold that the exercise of reasonable diligence would have led to the discovery of the leaking USTs no later than 1991. Accordingly, we affirm the trial court in all respect.

Meridian Insurance v. Cha Cha, Inc. (NFP) - "In this interlocutory appeal, Meridian Insurance (”Meridian”) appeals the trial court’s partial final judgment in favor of Cha Cha, Inc. (“Cha Cha”) in the amount of $188,492.33 for business interruption losses. Meridian raises the following restated issue: I. Whether the trial court erred in ordering it to pay Cha Cha the $188,492.22, in addition to the sums previously paid. Cha Cha raises the following restated issue on cross-appeal: II. Whether it is entitled to damages, including attorney fees, pursuant to Indiana Appellate Rule 66(E). We affirm."

Mark Lesh v. Richard Chandler and Marilyn Chandler (NFP) - "We conclude that the trial court improperly issued a preliminary injunction, as it failed to issue the requisite findings, and we remand with instructions that the trial court issue an order with such findings. We further conclude that the trial court does have jurisdiction over this action, as the Chandlers were not required to exhaust administrative remedies before filing this suit. Finally, we conclude that neither party is entitled to attorney fees at this time."

Sharon Sandage v. Curtis Keaton, Sr. (NFP) - "Under Article I, Section 22 of the Indiana Constitution, a debtor may not be imprisoned merely for their debt, except in cases of fraud. The only other exception is in child support cases involving minor children. Foley v. Manor, 844 N.E.2d 494, 500 (Ind. Ct. App. 2005). Here, Sandage was detained solely for failing to comply with the trial court’s order to pay a debt. Sandage was not arrested for failing to show cause, failing to appear, or any other contempt sufficient to justify a body attachment. See IC 34-47-4-2. Thus, this detention was in violation of the Indiana Constitution. See State ex rel. Wilson v. Monroe Superior Court IV, 444 N.E.2d 1178, 1180 (Ind. 1983). We reverse the trial court’s order and remand with instructions to release the bond. Reversed and remanded."

NFP criminal opinions today (4):

Ricky A. Conn v. State of Indiana (NFP)

Andrew W. Stacy v. State of Indiana (NFP)

William Boyd v. State of Indiana (NFP)

James H. Higgason, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on June 19, 2007 11:07 AM
Posted to Ind. App.Ct. Decisions