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Monday, November 26, 2007

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

For publication opinions today (1):

In Matter of the Unsupervised Estate of Martha H. Harris, Deceased; Kathy L. Wininger v. Pauline A. Giles , a 6-page opinion, Judge Najam writes:

Kathy Wininger, the executrix of the Estate of Martha Harris (“the Estate”), filed a petition in the Orange Circuit Court alleging that Pauline Giles had converted a certificate of deposit belonging to the Estate. After a hearing, the trial court determined that Giles was the rightful owner of the certificate of deposit. Wininger appeals and raises two issues for our review, but we address only the following dispositive issue: whether under Indiana Code Section 34-45-2-4 (“the Dead Man’s Statute”) Giles was precluded from testifying at the hearing. We reverse and remand for proceedings consistent with this opinion. * * *

The Dead Man’s Statute “guards against false testimony by a survivor by establishing a rule of mutuality, wherein the lips of the surviving party are closed by law when the lips of the other party are closed by death.” The application of the statute is limited to circumstances in which the decedent, if alive, could have refuted the testimony of the surviving party.

NFP civil opinions today (5):

Christine A. Ankney v. Gregory A. Ankney (NFP) - "We reaffirm our holding that the trial court’s modification order is not supported by the evidence. Petition for rehearing granted, memorandum decision affirmed."

Ronald Hill v. Albert Cabage (NFP) - "Following a jury verdict arising from an automobile accident, Ronald Hill appeals the trial court’s denial of his motion to correct error, raising two issues: I. Whether the jury’s damages award was adequate; and II. Whether the evidence was sufficient to support the jury’s fault apportionment. We affirm."

Partow Development, Inc. v. Armando Gonzalez (NFP) - "Partow Development, Inc. (“Partow”) appeals the trial court’s findings that Armando Gonzalez (“Gonzalez) was permitted to build a pool house and attorney fees [sic.] because the neighborhood restrictive covenants were ambiguous and laches estopped Partow from objecting to Gonzalez’s design. On appeal, Partow raises several issues, which we restate as: I. Whether the restrictive covenants were ambiguous; II. Whether laches estopped Partow; III. Whether the trial court abused its discretion in ruling on the admissibility of conclusory testimony; and IV. Whether Gonzalez is entitled to attorney fees. We affirm in part and reverse in part."

Michael R. McGill v. Clark Holesinger (NFP) - "Michael R. McGill appeals the trial court’s grant of summary judgment to Clark Holesinger regarding McGill’s attorney malpractice complaint against Holesinger. * * * We conclude that McGill failed to establish a genuine issue of material fact that he was damaged by Holesinger’s alleged negligence in his billing and accounting practices. Consequently, the trial court properly granted Holesinger’s motion for summary judgment."

In Chuck Gunter v. Larissa Curry and J.M.L. (NFP), a 7-page opinion, Judge Kirsch writes:

Chuck Gunter appeals the trial court’s order granting a protective order to Larissa Curry and her daughter J.M.L. He raises two issues, which we consolidate and restate as whether the trial court erred when it issued the order of protection. We reverse.

On February 27, 2007, Curry filed a petition for an order for protection against Gunter. In this petition, Curry requested protection for herself, her fiancé, and her three daughters. The petition alleged that Gunter had committed stalking against Curry’s fifteen-year-old daughter, J.M.L., by sending her emails.

Gunter is a volunteer fireman and EMT in Versailles, Indiana. He had met J.M.L. through his friendship with her brother-in-law and played on a church softball league with her. Gunter had also employed J.M.L. to babysit for his children. Beginning in October 2006, Gunter and J.M.L. exchanged emails and continued the exchange until January 2007, when Curry’s fiancé asked Gunter to stop emailing J.M.L. Gunter made no further attempt to contact J.M.L. after this. * * *

Under the statute, in order for Curry to qualify for an order of protection, she must be a victim of domestic or family violence and must file the petition against either a family or household member who committed an act of domestic violence or a person who has committed stalking or a sex offense against her. As stated above, Gunter is not a family or household member of Curry, and no allegations were made that she was a victim of domestic or family violence, stalking, or a sex offense. Therefore, Curry was not a person authorized to file a petition for an order of protection under IC 34-26-5-2. The trial court erred in issuing the order as it pertained to Curry.

Under the statute, Curry could petition the trial court for an order of protection on behalf of J.M.L. if Gunter was a family or household member who committed an act of domestic violence or if he had committed stalking or a sex offense against J.M.L. Gunter was not a family or household member of Curry or J.M.L. and was not accused of committing a sex offense. Further, as previously stated, the evidence did not support a finding that Gunter committed stalking against J.M.L. Curry was not authorized to file a petition on behalf of J.M.L. for an order of protection. We conclude that Gunter has proven prima facie error, and the trial court erred in issuing an order of protection for both Curry and J.M.L. Reversed.

NFP criminal opinions today (3):

Adrian L. Johnson v. State of Indiana (NFP)

Trent F. Freed v. State of Indiana (NFP)

Jason M. Roudebush v. State of Indiana (NFP)

Posted by Marcia Oddi on November 26, 2007 12:52 PM
Posted to Ind. App.Ct. Decisions