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Wednesday, January 23, 2008

Ind. Decisions - Court of Appeals issued 6 opinions on 1/22/08 (and 9 NFP)

The COA opinions from Tuesday, Jan. 22, 2008 are now available.

For publication opinions 1/22/08 (6):

In City of Charlestown Advisory Planning Commission v. KBJ, LLC , an 11-page opinion, Judge Barnes writes:

The Planning Commission is estopped from asserting that Danbury Oaks does not comply with the Charlestown subdivision ordinance. See Equicor, 758 N.E.2d at 40 (“In sum, the Planning Commission had ample opportunity to point out any deficiency in the designation of parking, and Equicor reasonably relied on the absence of any parking issue in processing its proposal. Under these circumstances, the Commission was estopped from asserting this deficiency as the reason for its disapproval of Equicor’s plat.”). Accordingly, the Planning Commission’s refusal to reapprove the replat was arbitrary and capricious. The trial court properly granted KBJ’s petition for writ of certiorari. * * *

Even assuming KBJ is correct in its assertion that Indiana Code Section 36-7-4-1010 applies to plan commissions in addition to boards of zoning appeals, this Section only applies to “costs” and does not mention “attorney fees.” Indiana follows the general rule that each party must pay his or her own attorney fees. * * *

Because Indiana Code Section 36-7-4-1010 does not contain a provision regarding the payment of attorney fees, it cannot be read to authorize such. Regardless of whether the Planning Commission acted in bad faith, as the trial court specifically found, Indiana Code Section 36-7-4-1010 does not authorize the recovery of attorney fees.

Conclusion The trial court properly determined that the Planning Commission erred in denying KBJ’s application for the reapproval of the replat. The trial court improperly awarded KBJ attorney fees pursuant to Indiana Code Section 36-7-4-1010. We affirm in part and reverse in part.

Cynthia Ogle v. East Allen County Schools and East Allen County Schools Employee Group Benefit Plan - "Cynthia Ogle was treated for Common Variable Immune Deficiency (CVID) using intravenous immunoglobulin replacement therapy (IVIG). Her employer, East Allen County Schools, paid for the treatments through its self-funded employee benefit plan (“the Plan”). The Plan administrator’s independent medical reviewers determined the treatment was not medically necessary, and the Plan stopped paying. Ogle sued and the trial court granted summary judgment for the School. On appeal, Ogle argues there are factual questions as to whether the reviewers found the treatments medically unnecessary. We affirm."

In Spring Hill Developers, Inc. and John G. Brinkworth v. Delbert N. Arthur, Jr. and Judith A. Arthur , a 17-page opinion, Judge Robb writes:

Spring Hill Developers, Inc., and John Brinkworth appeal the trial court’s grant of summary judgment in favor of Delbert “Sonny” Arthur and Judith Arthur. On appeal, Spring Hill and Brinkworth raise one issue, which we restate as whether the trial court properly granted summary judgment in favor of the Arthurs. Concluding that the trial court properly applied the statute of frauds to bar Spring Hill’s and Brinkworth’s complaint, we affirm. * * *

Applying the standard expressed in section 129 of the Restatement, we are not convinced the part performance doctrine applies to remove Sonny’s promise from the statute of frauds. Assuming Brinkworth sufficiently changed his position in reliance on Sonny’s promise, the nature of the injury cannot be characterized as so substantial that injustice can be avoided only through specific performance. In this respect, it is important to reiterate that nothing prevents Brinkworth from receiving the reasonable value of his services or restitution, or both. See supra, Part II.A. (discussing possible remedies for Brinkworth’s injuries). Because Spring Hill and Brinkworth cannot establish that injustice can be avoided only through specific performance, it follows that the part performance doctrine does not apply to remove Sonny’s promise from the statute of frauds.

In Jet Credit Union n/k/a Credit Union v. John V. Loudermilk and Continental American Insurance Co., et al, a 7-page opinion, Judge May writes:
Jet Credit Union believed John Loudermilk, a director and officer, committed “acts of malfeasance,” (Br. of Appellant Jet Credit Union (hereinafter “Jet Br.”) at 2), that caused Jet financial losses. Jet would not allow Loudermilk to withdraw the funds he had on deposit with Jet while it was trying to determine the extent of Loudermilk’s financial liability to Jet. In a declaratory judgment the trial court determined Jet could not withhold the money, and Jet released it. Loudermilk later sued Jet for criminal conversion and obtained summary judgment. Because there is no genuine issue as to whether Jet acted with criminal intent, we reverse and remand. * * *

Administrative agencies enjoy broad authority to interpret and enforce pertinent statutes. * * * We acknowledge nothing in Ind. Code chapter 28-11-4 explicitly authorizes DFI to interpret a statute, nor did the legislature explicitly prohibit it from doing so. Nevertheless, we decline Loudermilk’s invitation to hold an administrative agency necessarily “oversteps its authority” anytime it interprets a statute, even if it does not have explicit legislative authorization. In light of DFI’s interpretation of the statute, Jet could not have been aware of a high probability its control over Loudermilk’s money was unauthorized. It therefore had no criminal intent.

Summary judgment for Loudermilk was improper because the designated evidence demonstrates Jet lacked criminal intent. We accordingly reverse and remand for entry of summary judgment in favor of Jet. governing statutes. Rather, we address the effect DFI’s opinion had on whether Jet was aware of a high probability its control over Loudermilk’s money was unauthorized.

In James D. Massey and Margaret E. Massey v. Conseco Services, LLC , a 15-page opinion, Judge May writes:
James D. Massey appeals from summary judgment for Conseco Services, L.L.C. (“Conseco Services”) on its breach of contract claim and the dismissal of his counterclaims. We affirm. [See this ILB entry from 1/23/08]
In Pansy M. Ickes v. Gregory K. Waters, Esq., an 8-page opinion, Judge May writes:
Pansy M. Ickes alleges Gregory K. Waters failed to exercise ordinary skill and knowledge in counseling her and preparing her estate plan. Pansy appeals from summary judgment for Waters. We affirm, finding the trial court properly concluded the statute of limitations had run. * * *

Alternatively, Pansy argues the statute of limitations did not run because of the “continuous representation doctrine.” * * * Even if we were to adopt this rule, Pansy has not designated evidence that she subjectively intended or reasonably expected the relationship to continue. Therefore, summary judgment was appropriate.

NFP civil opinions 1/22/08 (6):

Jerry Terry, Dorman Hill, Barry Clevenger, et al v. Max Rudicel, James Siefert, Ron Chambers, et al (NFP) - "Concluding that the trial court properly applied the statute of frauds to bar Spring Hill’s and Brinkworth’s complaint, we affirm."

James Tomlinson and Frances Tomlinson v. Jerry R. Howard, Indiana Dept. of Transportation, and State of Indiana (NFP) - "The trial court properly struck Tomlinsons’ Exhibit Four from the designated materials and properly granted summary judgment for Howard and INDOT."

Mark P. Campbell v. A.A.A. Bail Bonds, Inc., et al (NFP) - "We conclude that the trial court did not abuse its discretion in denying Campbell’s motions to strike portions of two affidavits because the affidavits comported with Indiana Trial Rule 56(E). Further, we conclude that the undisputed facts show that A.A.A. is permitted to recover under the Indemnity Agreement and that the record does not support Campbell’s contention that there are no damages. Summary judgment in favor of A.A.A. is appropriate."

Gerald Morgan, Rosetta Morgan and A & A Machine Service, Inc. v. Service Industries, LLC, Peter and Heidi Lachmann (NFP) - "Concluding that the trial court properly granted summary judgment on the issue of whether the Lachmanns had acquired a prescriptive easement and whether the Lachmanns had acquired title to the property by adverse possession, we affirm. The Lachmanns also argue that the trial court improperly denied its motion for attorneys’ fees, and also request that we award attorneys’ fees incurred in defending this appeal. Concluding the trial court acted within its discretion in declining to award attorneys’ fees, we affirm the trial court in that respect as well. We also conclude that this appeal was not frivolous, and decline to award appellate attorneys’ fees."

Randall Carl Freeman v. Crystal Freeman (NFP) - "Petitioner-Appellant Randall Carl Freeman appeals the trial court’s denial of his motion to correct error following the court’s distribution of property in the dissolution of Randall’s marriage to Respondent-Appellee Crystal Freeman. We affirm."

James Garrett Small v. Indiana Family and Social Services Administration, et al (NFP) - "I agree with the majority that Marion Circuit Court is the appropriate court to consider Small’s complaint. However, I concur in result because I believe that Indiana Code section 33-29-6-3 would have been an appropriate alternative by which the Marion Superior Court could have handled this case."

NFP criminal opinions 1/22/08 (3):

Roger A. Greathouse, Jr. v. State of Indiana (NFP)

John Carl Fultz v. State of Indiana (NFP)

Milton Smith, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on January 23, 2008 07:19 PM
Posted to Ind. App.Ct. Decisions