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Tuesday, September 25, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Mark Dorman and Tracy Dorman v. Osmose, Inc. , a 14-page opinion, Judge Crone writes:

Mark and Tracy Dorman appeal the denial of their motion to correct error following the verdict in favor of Osmose, Inc., on their amended complaint alleging negligence and strict liability. We affirm.

Issues. The Dormans raise three issues, which we restate as follows: I. Whether the Dormans waived their claim that the trial court abused its discretion in deciding not to replace a juror; II. Whether the trial court abused its discretion in excluding certain language from Osmose’s brief submitted in a prior appeal; and III. Whether the trial court abused its discretion in instructing the jury on contributory negligence.

In Keith A. Adams v. Lisa A. Adams , a 9-page opinion dealing with an denial of a petition for modification of child support, Judge Sharpnack writes:
Because the trial court did not issue findings of fact and conclusions thereon, we do not know whether the trial court deviated from the Child Support Guidelines by imputing income to Keith. “There is a rebuttable presumption that an award of child support based on application of the Guidelines is the correct amount.” Sims v. Sims, 770 N.E.2d 860, 864 (Ind. Ct. App. 2002); Ind. Child Support Rule 2. “If a court concludes that a particular amount reached by application of the Guidelines would be unjust, then it must ‘enter a written finding articulating the factual circumstances supporting that conclusion.’” Sims, 770 N.E.2d at 864 (quoting Ind. Child Support Rule 3). “For this reason, the trial court was required to enter written findings detailing the circumstances making application of the Guidelines unjust.” Id. (citing Child Supp. R. 3). Therefore, we remand this cause to the trial court for entry of findings showing why application of the Guidelines would be unjust in the instant case. See, e.g., id.

For the foregoing reasons, we remand for proceedings consistent with this opinion.

NFP civil opinions today (5):

Matter of C.W. and S.R.; Patrice Roberson v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - "Under the facts and circumstances before us, DCS presented sufficient evidence to support the CHINS determination. Affirmed."

In Estate of William Garey v. Larry E. Geswein and South Capitol Properties, LLC (NFP), a 12-page opinion, Judge Crone writes:

The Estate of William Garey (“the Estate”) appeals the denial of its motion to correct error, following the trial court’s determination that the Estate committed actual or constructive fraud in making a real estate contract with Larry E. Geswein and South Capitol Properties, LLC (collectively, “Geswein”). We reverse and remand.

Issue. The dispositive issue is whether the trial court clearly erred in concluding that the Estate committed actual or constructive fraud. * * *

Geswein used the tires as an excuse to stop making payments on the contract. It is undisputed that the Estate fulfilled its contractual obligation to remove all tires from the property; any delay in removing the buried tires was due solely to Geswein’s refusal to allow the Estate to enter the property. On appeal, Geswein wisely does not argue that he was injured by any material misrepresentation regarding the buried tires or that his failure to make payments on the contract was otherwise legally justifiable. In light of the foregoing, we conclude that Geswein defaulted on the contract and that the trial court clearly erred in concluding that the Estate committed actual or constructive fraud. Therefore, we reverse and remand for a determination of the Estate’s damages and remedies pursuant to the contract, including the recovery of trial and appellate attorney’s fees.

North Side Service Center, Inc. and Henry Duncan v. Herbert Kulwin and Shirley Kulwin (NFP) - "North Side Service Center, Inc., and Henry Duncan (collectively, “North Side”) appeal the trial court’s denial of their motion for relief from judgment filed in the action brought against them by Shirley Kulwin and the Estate of Herbert Kulwin (collectively, “the Kulwins”), predecessors-in-interest to SMK Ventures, Inc. (“SMK”). North Side raises one issue, which we restate as whether the trial court abused its discretion by denying their motion for relief from judgment under Ind. Trial Rule 60(B)(7). We affirm."

Rose Mary Whitson and Joseph E. Whitson v. Diane West (NFP) - appeal of a decision of the small claims court, reversed. "Our review of the record reveals no basis for the judgment of $3230 in favor of Vest. At the time Fifth Third Bank repossessed the vehicle, Vest had enjoyed its use for two years and ten months. Fifth Third Bank sold the vehicle for $4283, an amount less than the amount still owed to Fifth Third Bank. The vehicle had a negative value, and therefore, as a matter of law, Vest could not have suffered a loss by reason of the bank’s repossession of the vehicle. * * * To suppose that Vest was unaware that failure to make the required payments would result in anything other than the bank’s repossession of the vehicle strains credulity. Further, we stress that throughout the years that Vest made payments to the bank, she enjoyed the full use of the vehicle. Based on the foregoing, we conclude that the judgment of the small claims court is clearly erroneous. Reversed."

James Hodapp and Sarah Hodapp v. Bartholomew Co. Dept. of Child Services (NFP) - termination, affirmed.

NFP criminal opinions today (8):

In State of Indiana v. Damon Lewis (NFP), an 8-page, 2-1 opinion, Judge Crone writes:

The State appeals the order granting the trial court’s motion to correct error, in which it vacated Damon Lewis’s convictions and habitual substance offender finding and ordered a new trial. We affirm.

Issue. The issue is whether the trial court abused its discretion in ordering a new trial. * * *

Here, the parties’ failure to establish during voir dire that Orcutt was related to Officer Berner, and the trial court’s refusal to allow further questioning of Orcutt once that information came to light, prevented all concerned from determining whether Orcutt could render a fair and impartial verdict. Under these circumstances, we cannot conclude that the trial court abused its discretion in ordering a new trial.

FRIEDLANDER, J., concurs.
BAKER, C. J., dissents with opinion. [which concludes] Concededly, Orcutt’s presence on the jury was not ideal. But I do not believe that this error—if it can be called an error—was so egregious that it caused the convictions. At the most, it was relevant only during the habitual offender proceeding, inasmuch as Officer Berner had no involvement whatsoever with the underlying charges. Consequently, I would reverse the trial court’s order awarding Orcutt a new trial.

Lukuman Aderibigbe v. State of Indiana (NFP)

Jabe E. Stewart v. State of Indiana (NFP)

Christopher A. Turner v. State of Indiana (NFP)

Jess James Bumbalough v. State of Indiana

Charles G. Parsons v. State of Indiana (NFP)

Steven Paul Weaver v. State of Indiana (NFP)

Terry Stafford v. State of Indiana (NFP)

Posted by Marcia Oddi on September 25, 2007 12:26 PM
Posted to Ind. App.Ct. Decisions