The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 7 today (and 17 NFP)

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Friday, July 20, 2007

Ind. Decisions - Court of Appeals issues 7 today (and 17 NFP)

For publication opinions today (7):

In Brenwick Associates, et al. v. Boone County Redevelopment, et al., a 23-page opinion, Judge Vaidik writes:

Brenwick Associates, LLC (“Brenwick”) and the Town of Whitestown (“Whitestown”) (collectively, “the Remonstrators”) appeal from the trial court’s judgment upholding the creation of an economic development area (“EDA”) by the Boone County Redevelopment Commission (“BCRDC”) and the Board of Commissioners of Boone County (“Boone County Commissioners”) (collectively, “Boone County”). Boone County’s proposed EDA includes 1425 acres over which Whitestown had previously initiated annexation proceedings and approximately 2500 acres that Whitestown added to its annexation ordinance after Boone County initiated creation of its EDA.

Initially, we conclude that the Remonstrators, as property owners in the proposed EDA, are aggrieved for purposes of seeking judicial review of the creation of the EDA. Furthermore, we agree with the Remonstrators that Boone County had no jurisdiction to create the EDA as to the 1425 acres in Whitestown’s original annexation ordinance because Whitestown acted first to take jurisdiction over that territory. However, we agree with Boone County that the Remonstrators’ statutory and due process rights were not violated because the procedure for creating an EDA is legislative, rather than judicial, in nature, and that the evidence is sufficient to support the creation of the EDA as to the additional 2500 acres. * * *

The Remonstrators Motion to Take Judicial Notice is denied. We reverse the trial court’s conclusion that the Remonstrators are not aggrieved for purposes of the judicial review statute. We also reverse the trial court’s approval of the I-65 West EDA as to the 1425 acres in the original Annexation Ordinance. However, we affirm the trial court’s approval of the I-65 West EDA as to the additional 2500 acres. Affirmed in part, reversed in part.

SULLIVAN, J., and ROBB, J., concur.

In James F. Keenan and Wells Fargo Bank, N.A., Personal Representatives of the Estate of Judd C. Leighton and Wells Fargo Bank, et al. v. Nancy O. Butler, et al., a 12-page opinion, Judge Bailey writes:

The Estate raises the sole issue of whether a circuit court has subject-matter jurisdiction over an action filed against a decedent’s estate for breach of an oral contract to make a will when the administration of the estate is pending in probate court. * * *

[T]o harmonize the breach of contract action with the purpose of the Probate Code, the action is properly characterized as a probate matter rather than a claim. Therefore, due to the overall uncertainty as to the characterization of this action and because the probate court is aware of this action, we remand to the trial court with instructions to transfer this matter to the St. Joseph County Probate Court to be dealt with in accordance with our opinion herein. Reversed and remanded.

In Four Seasons Manufacturing, Inc. v. 1001 Coliseum, LLC, a 25-page opinion, Chief Judge Baker writes:

Appellant-defendant Four Seasons Manufacturing, Inc. (FSM), appeals the trial court’s judgment in favor of appellee-plaintiff 1001 Coliseum, Inc. (Coliseum). FSM raises the following arguments: (1) the trial court erred by not granting summary judgment in favor of Four Seasons Housing Factory Outlet, LLC (FiSHFO), and (2) the trial court erred by piercing the corporate veil of Northern Indiana Housing Factory Outlet, LLC (NiHFO), to hold FSM liable for $136,053.10. Additionally, Coliseum cross-appeals the trial court’s finding that FSM was not liable under the Indiana Uniform Fraudulent Transfer Act (UFTA). Concluding that FSM is a debtor pursuant to the UFTA but that the damages award was proper, and finding no other error, we affirm the judgment of the trial court.

Charles E. Sapen v. State of Indiana is a fact-specific case involving the question of whether defendant can be retired on the charge of resisting law enforcement in a driving under the influenece case, the Court rules: "We conclude that the State did not present sufficient evidence to establish that Sapen forcibly resisted Captain Holmes by strong, violent or powerful means to evade Captain Holmes’ rightful exercise of his duties. Therefore, Sapen may not be retried upon the charge of Resisting Law Enforcement. Reversed and remanded."

In the Matter of M.W. & D.D., Children in Need of Services; Lorraine Davis v. Marion County Department of Child Services & Child Advocates, Inc. - "Appellant-respondent Lorraine Davis appeals from the trial court’s determination that her minor sons, M.W. and D.D., were Children in Need of Services (CHINS). Specifically, Davis claims that the evidence was insufficient to support the Marion County Department of Child Services’ (MCDCS) allegations that she had an alcohol abuse problem and that she had physically abused her sons. Concluding that the evidence was insufficient to support the CHINS determination, we reverse the judgment of the trial court."

In Michael Phillips v. City of Bloomington, City of Bloomington's Utilities Service Board and Mayor Mark Kruzan, a 6-page opinion, Judge May writes:

In November 2003, Mayor-elect Kruzan told Phillips someone else would be appointed director of utilities after the first of the year. Phillips and the defendants exchanged correspondence and other information during December 2003 and January 2004 related to Phillips’ employment and Mayor Kruzan’s consultation with lawyers about replacing Phillips. In that correspondence, Phillips contended, based on Ind. Code § 8-1.5-3-5(d), only the Utilities Service Board could remove him, and only for cause after notice and hearing. * * *

There is no genuine issue of material fact about whether Phillips is a department head/utilities director. Because he is, Ind. Code § 8-1-5-3-5(d) does not apply. Under the Bloomington Municipal Code, the utilities director is appointed by the mayor, serves at the pleasure of the mayor and, therefore, may be dismissed without cause by the mayor. The defendants are entitled to judgment as a matter of law. Affirmed.

Jeffrey Baber v. State of Indiana - "Jeffrey Baber appeals his convictions of child molesting as a Class A felony1 and child molesting as a Class C felony.2 He argues the evidence was insufficient, the verdicts were inconsistent, the trial court erred in allowing the State to amend the charging information, and the sentence was “manifestly unreasonable.” We affirm. * * * K.J.’s testimony was not incredibly dubious and the evidence was sufficient to support Baber’s convictions. The verdicts returned by the jury were not inconsistent. Changing the dates of the offenses charged in the information was a matter of form and did not prejudice Baber’s substantial rights. Baber was sentenced appropriately."

NFP civil opinions today (2):

James Quincy Calloway v. Lisa D. Freismuth Pfrommer (NFP) - "Father has not demonstrated the court abused its discretion when it failed to find the change in circumstances required to modify custody from Mother. Neither do we find an abuse of discretion in the trial court’s division of expenses between Mother and Father. For these reasons, we affirm."

Matter of the Termination of Parent-Child Relationship of C.M. and D.M.; Milah Marcum and Christopher Marcum v. Fayette County Department of Child Services (NFP) - "Milah Marcum and Christopher Marcum appeal the termination of their parental rights to their two youngest children, C.M. and D.M. Parents raise one issue, whether the evidence is sufficient to find that the conditions resulting in removal of the children will not be remedied. We affirm."

NFP criminal opinions today (15):

Henry D. Young v. State of Indiana (NFP)

Steven D. Shell v. State of Indiana (NFP)

Christian Ellinger v. State of Indiana (NFP)

Gary Anderson v. State of Indiana (NFP)

Paul Wagner v. State of Indiana (NFP)

Jeremy Tidmore v. State of Indiana (NFP)

Michael E. Kirts, Jr. v. State of Indiana (NFP)

William Malone v. State of Indiana (NFP)

Cameron Wuethrich v. State of Indiana (NFP)

Justine Silvers v. State of Indiana (NFP)

Dewayne Chaney v. State of Indiana (NFP)