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Monday, November 17, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP); including "In God We Trust" plates challenge

For publication opinions today (1):

In Janice and Burdette Ramer v. Betty Smith , a 12-page opinion, Judge Robb writes:

Janice and Burdette Ramer appeal the trial court’s special findings of fact and conclusions of law granting interlocutory judgment in favor of Betty Smith and ordering partition of the property in question. The Ramers raise three issues on appeal: 1) whether the trial court erred when it determined that the Ramers, as tenants by the entireties, and Betty each hold a one-half joint tenancy interest in the property; 2) whether the trial court erred when it refused to award the Ramers contribution for value added to the property; and 3) whether the trial court erred when it determined that the property cannot be equitably
divided. Concluding that the language of the deed sufficiently evidences intent to create joint tenancy interests in the property, but that the Ramers are not entitled to contribution, we reverse in part and affirm in part. In addition, we remand this case to the trial court to determine whether the property can be equitably divided in light of our holding.
NFP civil opinions today (2):

In Mark Studler v. Indiana Bureau of Motor Vehicles and Ronald L. Stiver as Commissioner of the Indiana BMV (NFP), a 12-page opinion, Judge Robb writes:

Mark Studler appeals the trial court’s order denying his motion for summary judgment and granting the Indiana Bureau of Motor Vehicles’s (“BMV”) motion for summary judgment. On appeal, Studler raises a single issue, which we restate as whether charging an administrative fee for the purchase of a special group recognition license plate, such as the “Environment” license plate, but not for the “In God We Trust” license plate violates Article I, section 23, of the Indiana Constitution. Concluding that charging an administrative fee for some license plates but not for others is not unconstitutional because the legislative classification of license plates is reasonably related to inherent characteristics of the license plates and the requirement of paying the administrative fee is uniformly applicable to all similarly situated license plates, we affirm. * * *

The General Assembly’s classification of license plates as chapter 25 and non-chapter 25 license plates is reasonably related to the inherent characteristics of the license plates. In addition, the requirement of paying the administrative fee is equally applicable to all chapter 25 license plates and does not apply to any non-chapter 25 license plates. Therefore, we hold that Indiana Code sections 9-18-24.5-4 and 9-29-5-34.5, offering the “In God We Trust” license plate without the requirement of paying the administrative fee, are constitutional.

Sandra Elbrink, on Her Own Behalf, and on Behalf of the Estate of Robert Elbrink v. General Electric Co., et al. (NFP) - " On appeal, Elbrink fails to cite the record for any allegation or any evidence that any of the Premises Owners had more knowledge of the dangers of asbestos than any of Robert’s employers.

"Elbrink also argues that the Premises Owners were liable because of the negligent conduct of their own employees, under the principle of respondeat superior. * * * The Court concluded that, “[a]t most, PSI created a quantitatively higher risk, but not a risk unique to PSI, and not a risk requiring qualitatively different precautions from those generally associated with asbestos.” Id. In light of this
analysis, we conclude that Elbrink was not entitled to pursue relief under a theory of respondeat superior. Furthermore, we read the PSI Energy Court’s language to apply equally to the conduct of PSI Energy employees and the conduct of employees of its contractors.

"For these reasons, the trial court did not err in entering summary judgment for GE, SIGECO, US Steel, and Whirlpool. * * *

"The Construction Statute of Repose applies to a person who “constructs an improvement to real property.” I.C. § 32-30-1-5(a)(2) (West Supp. 2008). The exclusion for maintenance of an improvement, however, pertains only to possessors, not to construction contractors. I.C. § 32-30-1-5(c) (West Supp. 2008). An action for wrongful death arising out of a deficiency may not be brought unless the action is commenced within ten years after the date of substantial completion of the improvement. I.C. § 32-30-1-5(d) (West Supp. 2008). Elbrink filed her lawsuit on June 20, 2006. Therefore, the statute barred work on anything substantially completed before June 20, 1996. Elbrink’s appellate argument makes no reference to events occurring any later than the early 1980s. None of her designated evidence regarding ICI referenced events later than the late 1980s. Even viewing the designated evidence and reasonable inferences in the light most favorable to Elbrink, anything Robert worked on while near ICI employees was substantially completed before 1996. The trial court did not err in entering summary judgment in favor of ICI."NFP criminal opinions today (7):

Andrew P. Kawlewski v. State of Indiana (NFP)

Chaz D. Norton v. State of Indiana (NFP)

Ronald Watson v. State of Indiana (NFP)

Samuel Steed v. State of Indiana (NFP)

D.M. v. State of Indiana (NFP)

Jay Stanback v. State of Indiana (NFP)

Larry Wooley v. State of Indiana (NFP)

Posted by Marcia Oddi on November 17, 2008 12:27 PM
Posted to Ind. App.Ct. Decisions