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Wednesday, October 22, 2008

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In JDS Real Estate Svc., LLC and Jim Schenk, III v. The Bank of New York Trust Co. N.A. as Successor to JP Morgan Chase Bank N.A. as Trustee, et al. (NFP), a 7-page opinion, Judge Robb writes:

JDS Real Estate Service, LLC and Jim D. Schenk II, as intervening parties (“Intervenors”), appeal the trial court’s grant of a motion to set aside a sheriff’s sale filed by the The Bank of New York Trust Company N.A., as successor to JP Morgan Chase Bank N.A. (“Bank of NY”). Intervenors raise several issues that we consolidate as one: whether the trial court erred in granting the motion to set aside. Concluding that the Intervenors’ appeal is untimely, however, we dismiss. * * *

Intervenors’ motion to correct error was filed on July 10, 2007. Although the trial court held a status hearing and outlined a briefing schedule regarding Intervenors’ motion, the briefing schedule does not comply with the time limitations of Trial Rule 59 concerning motions to correct error, and nothing in the Trial Rules grants the trial court the discretion to alter those time limitations. The trial court also did not properly extend the time limitation for ruling on Intervenors’ motion to correct error: the trial court did not file an entry in writing extending its thirty days in which to rule by an additional thirty days; and even if it had done so, its ruling was entered more than sixty days after the motion was filed. In sum, Intervenors’ notice of appeal, filed more than seven months after the final judgment, was untimely. * * *

Conclusion. Intervenors’ notice of appeal was not timely filed following the entry of final judgment, and the appeal is therefore dismissed.

In Cash In A Flash, Inc. v. Anne Defreeuw (NFP), a 7-page opinion, Judge Najam writes:
Cash in a Flash, Inc. (“CIF”) appeals the trial court’s judgment awarding CIF $1,195, plus costs, in CIF’s action against Anne DeFreeuw for defrauding a financial institution. CIF raises two issues for our review, but we address only the following dispositive issue: whether CIF invited the purported errors from which it appeals. We affirm. * * *

The doctrine of invited error is grounded in estoppel. Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). Under this doctrine, “‘a party may not take advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or misconduct.’” Id. (quoting Witte v. Mundy, 820 N.E.2d 128, 133-34 (Ind. 2005)). The record here indicates that CIF, in its complaint, alleged three counts against DeFreeuw, but that Count II (penalties for stopping payment) and Count III (breach of contract) were explicitly alleged as “Alternative Cause[s] of Action” to Count I (defrauding a financial institution). Appellant’s App. at 67-68. Further, at the small claims hearing, CIF’s counsel expressly informed the trial court that it had to “elect[] between the contract and fraud theor[ies]” and that the court could only award to CIF “damages [on] the lesser of the two” allegations. Id. at 34. That is what the court did. Hence, if that was error, CIF invited that error and “it cannot not take advantage of that error on appeal.” Wright, 828 N.E.2d at 907. Affirmed.

NFP criminal opinions today (2):

Wayman H. Lyons v. State of Indiana (NFP)

Preston James Frye v. State of Indiana (NFP)

Posted by Marcia Oddi on October 22, 2008 02:03 PM
Posted to Ind. App.Ct. Decisions