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Wednesday, August 15, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 1 NFP)

For publication opinions today (3):

In Richard Bosley, Jr. v. State of Indiana , a 7-page opinion, Judge Bailey writes:

Appellant-Defendant Richard Bosley, Jr. (“Bosley”) attempted to challenge the fifty-year sentence imposed following his plea of guilty to Child Molesting, as a Class A felony,1 by filing motions, some having a criminal cause number and some having a post-conviction cause number. In 2005, Bosley was denied permission to file a belated direct appeal (Cause No. 06C01-9608-CF-133) and in 2006 he was granted permission to file a belated direct appeal (Cause No. 06C01-0208-PC-149). He now purports to bring a belated direct appeal with reference to both lower court cause numbers as if presenting a consolidated appeal. We affirm the first ruling of the trial court denying Bosley permission to file a belated direct appeal.
In James Lile d/b/a Lile's Body Shop and Trailer Sales v. Edward and Kelly Keisel, a 7-page opinion, Judge Riley writes:
Appellant-Defendant, James Lile (Lile) d/b/a Lile’s Body Shop and Trailer Sales (Lile’s), appeals the trial court’s judgment ordering him to refund Appellees-Plaintiffs, Edward (Edward) and Kelly Kiesel (Kelly) (collectively, the Kiesels), $3,059.00 plus post-judgment interest. We affirm. Issue: Lile’s raises one issue on appeal, which we restate as: Whether the trial court properly allowed the Kiesels to revoke their acceptance of a pull-behind enclosed trailer purchased from Lile’s. * * * [W]e conclude that the Kiesels rightfully revoked acceptance of the trailer they purchased from Lile’s, and the trial court properly ordered Lile’s to fully refund the Kiesels the purchase price of the trailer.
In Rick Cook & Daniel Funk v. Adams County Plan Commission, an opinion dealing with CAFOs totalling 17 pages, each judge writes a separate opinion. Judge Riley writes for the majority:
Issue. Whether the trial court erred when it found that a one-year lease for real estate which contained provisions for an annual automatic renewal and a notice of cancellation, constituted a long term lease in accordance with the Adams County Zoning and Land Use Ordinance Regulation of Intensive Livestock Operations. * * *

The sole issue before us revolves around the Ordinance’s requirements for obtaining an intensive livestock permit. Pursuant to Ordinances 2-16-2(B)(3) and 2-16-3(C), Hilty’s proposed intensive livestock operation required ownership or a long term lease to at least one acre of land per ten hogs, or one hundred acres, for spreading the hogs’ manure. As Hilty did not own the necessary acreage upon which to spread the manure of his proposed one thousand hog facility, Ordinance 2-16-3(C)(3) mandates him to present the Plan Commission with a long term lease granting permission to apply waste on the leased ground. To that end, Hilty entered into a lease with Wilder. * * *

Here, the lease is remarkably limited in its terms, and provisions typically found in a lease are absent. First and foremost, the agreement is silent with regard to its lease price, or any method to calculate such. Furthermore, paragraph 3 of the lease stipulates that the sole purpose of the lease is to comply with the Ordinance by providing Hilty with sufficient application land. As stated by the Geyer court, the restriction on the use of the premises indicates that the parties more probably contemplated a short term lease because “[c]onstrued as a lease in perpetuity it could serve to tie up this property forever for one particular and narrow use, regardless of whether, after the passing of many years, the location might make the property much more useful and valuable for other purposes.” Id. at 201. However, unlike Geyer, the lease does contain a general proviso extending and binding the lease’s covenants to the “heirs, executors and administrators of both [Wilder] and [Hilty].” * * *

[M]indful of the Geyer court’s prominent reliance on the parties’ unequivocal intention to enter into a perpetual lease, as mainly indicated by the use of phrases as ‘forever,’ ‘for all time,’ and ‘in perpetuity,’ we cannot conclude that the lease agreed upon by Wilder and Hilty is a perpetual lease. The mere use of the word “automatic” does not in and of itself obligate Hilty to renew the lease perpetually, particularly where the language, considered together with the other lease provisions, shows that such was not the intent of the parties. * * *

Accordingly, based on our analysis, the lease agreement at bar must be read as providing for a base term of one year with an automatic renewal of one additional year unless notice of termination is given at least one hundred and eighty days before the anniversary date. Thus, essentially amounting to a two-year lease, we refuse to characterize this agreement as long term. Therefore, as the lease clearly does not satisfy the provisions of Ordinances 2-16-2(B)(3) and 2-16-3(C), we reverse the trial court’s Order. * * *

NAJAM, J., dissents with separate opinion. BARNES, J., concurs in result with separate opinion.

J. Najam's dissent begins: I respectfully dissent from the majority’s holding that the lease in question is illegal under the Adams County Zoning and Land Use Ordinance Regulation of Intensive Livestock Operations (“Ordinance”). The discussion of what constitutes a perpetual lease is an unnecessary digression. The only question before us is whether the lease here is a long-term lease under the Ordinance.

J. Barnes' concurrence begins: I concur in result but write separately because I believe the only issue is whether Hilty’s automatically renewable one-year lease is a long-term lease. I acknowledge that we must give some deference to the Plan Commission’s interpretation of “long-term.” See Hoosier Outdoor Adver. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 163 (Ind. Ct. App. 2006), trans. denied. I simply cannot agree that it is reasonable to call a one-year lease a long-term lease. Common sense tells me one year is not long-term. * * *

It seems to me that the public policy underlying the Ordinance is primarily to assure that a hog CAFO has a place to dispose of the manure that is produced by the swine. Adams County, in enacting the Ordinance, had a legitimate interest in attempting to assuage the olfactory senses of those who may be affected by a CAFO operation. The Ordinance calls for a “long-term” lease in order to ensure, I assume, a place to spread the manure for a defined, lengthy, and fixed period of time. The lease at issue here does not do that in my opinion.

NFP civil opinions today (1):

Termination of the Parent-Child Relationship of J.S. & J.M.; Christina Smith v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - termination, affirmed.

NFP criminal opinions today (0):

Posted by Marcia Oddi on August 15, 2007 01:16 PM
Posted to Ind. App.Ct. Decisions