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Thursday, March 12, 2009

Ind. Decisions - Court of Appeals issues 6 today (and 7 NFP)

For publication opinions today (6):

In DLZ Indiana, LLC v. Greene County, Indiana , a 14-page opinion, Judge Najam writes:

In this appeal, we are asked once again to consider what constitutes a joint venture. DLZ Indiana, LLC, (“DLZ”) appeals from partial summary judgment in favor of Greene County, Indiana (“the County”) on the County’s second-amended complaint alleging breach of contract. DLZ presents a single issue for our review, namely, whether the trial court erred when it concluded that DLZ was engaged in a joint venture with United Consulting Engineers, Inc. (“United”) to provide architectural services for the County (“the Project”). We hold that United and DLZ did not exercise joint or mutual control over the Project or share profits and, thus, were not doing business as a joint venture as a matter of law. * * *

In sum, the Agreement is unambiguous with respect to whether United and DLZ were doing business as a joint venture. First, there is no evidence that they exercised joint or mutual control over the Project, which is an essential element. Section 23 of the Agreement allocates responsibility and liability between them, limits DLZ’s responsibility and liability, and identifies United as the “principal.” If “the Firm” were a joint venture, both United and DLZ would exercise joint or mutual control over the Project and would be jointly and severally liable as principals. But Section 23 makes it clear that United and DLZ do not have “an equal right to direct and govern the undertaking.” See Walker, 887 N.E.2d at 138.

Second, and of equal significance, there is no evidence within the Agreement that United and DLZ shared profits. An agreement to share profits is essential to a joint venture. Here, United and DLZ had no joint proprietary interest. Instead, they were paid for their professional services at their own predetermined hourly rates, and they did not share in each other’s profits or losses.

And finally, even if the Agreement were ambiguous, the designated, extrinsic evidence also demonstrates that the essential elements of joint or mutual control and shared profits are missing.

We conclude that there is no genuine issue of material fact and hold that United and DLZ were not engaged in a joint venture as a matter of law. We reverse the entry of summary judgment for the County and instruct the trial court to enter partial summary judgment for DLZ on this issue.

Reversed and remanded with instructions.

In Stuart and Nancy Showalter v. Town of Thorntown, a 10-page opinion, Judge Najam writes:
Stuart and Nancy Showalter appeal from the trial court's order that they pay the attorneys' fees incurred by the Town of Thorntown (“Thorntown”) in Thorntown's enforcement of various ordinances against the Showalters. The Showalters raise a single issue for our review, which we restate as whether they preserved their appeal of the trial court's order that they pay Thorntown's attorneys' fees. * * *

61. At trial, Defendant Stuart Showalter challenged portions of Plaintiff's Exhibit [14].

62. In particular, Stuart Showalter contested entries on said bill for communications by the town attorney with former Indiana Public Access Counselor Karen Davis and present Indiana Public Access Counselor Heather Willis-Neal.

63. The record confirms that the Defendants never utilized the Indiana Rules of Trial Procedure in conducting discovery in the present case. Instead, Defendant Stuart Showalter utilized the Indiana Public Access Statute(s) in seeking documents from the Town of Thorntown relating to the present case.

64. Stuart Showalter further questioned entries on Exhibit fourteen (14) that referenced cause numbers not associated with the case tried on October 10, 2007, and February 14, 2008.

65. If the Court were to subtract the time listed on Plaintiff's Exhibit fourteen (14) attributable to cases other than [the] current cause . . . the result would be the subtraction of [21.3] hours[] from said statement.

66. [$185] per hour, [86.7] hours of attorney time compute[s] to [$16,039.50] in billable hours. * * *

The Showalters raise one issue on appeal, namely, whether Thorntown Ordinance 2004-1-11(b), which permits Thorntown to recover its attorneys' fees upon the successful enforcement of its ordinances, violates Indiana law. In response, Thorntown asserts that the Showalters waived this issue for appellate review because they did not first present their argument to the trial court. * * *

The Showalters have waived the issue raised on appeal for review. As this court has explained on numerous occasions: [see p. 9 of opinion] * * *

We reluctantly conclude that the Showalters have waived their arguments. The issues raised by the Showalters merit appellate review. Both the amount of the Thorntown fine levied against the Showalters ($7,310) and the amount of the attorneys' fees awarded to Thorntown ($16,039.50) appear excessive. To be sure, the Showalters should have cut the weeds and removed the signs, but those violations hardly raise complex legal issues to warrant a judgment in excess of $23,000. Finally, the fact that the Showalters utilized Indiana's Public Access Statutes, rather than the Indiana Rules of Trial Procedure, to obtain documents from Thorntown is of no moment and should not have exposed the Showalters to additional attorneys' fees.

In sum, we are obliged to hold that the Showalters have not preserved their arguments for appellate review. The Showalters' stated issue on appeal—that the award of attorneys' fees to Thorntown is contrary to law—is a substantive question independent in character from the issues and arguments they raised at trial. We cannot say that the trial court erred when it never had an opportunity to address the issue now raised for the first time on appeal. The judgment against the Showalters is affirmed.

In David A. Shotts v. State of Indiana , a 9-page opinion, Judge Crone writes:
David A. Shotts appeals his conviction for class C felony carrying a handgun without a license with a prior felony. The dispositive issue is whether the trial court abused its discretion by admitting evidence seized from Shotts's person when Indiana police executed an Alabama arrest warrant. We reverse. * * *

In sum, the Alabama arrest warrant was clearly deficient on its face, resulting in a search and seizure of Shotts's person that violated his rights under the Fourth Amendment and the Indiana Constitution. The exclusionary rule applies, and the police conduct falls outside the good faith exception to the exclusionary rule. Therefore, the trial court abused its discretion in admitting the evidence seized during Shotts's arrest. Consequently, we reverse Shotts's conviction.

In the Matter of the Involuntary Term. of the Parent-Child Rel. of E.D.; Sabrina Daniel a/k/a Sabrina James v. Marion Co. Dept. of Child Svcs. and Child Advocates, Inc. - "After balancing the substantial interest of Mother with that of the State, and in light of the minimal risk of error created by the challenged procedure, we conclude that, under the facts of this case, the trial court did not deny Mother due process of law when it denied
counsel’s request to continue the termination hearing. Affirmed. "

In Re: T.D.S. is a 10-page per curiam decision re a Notice of Expedited Appeal filed by the Indiana Department of Child Services, LaPorte County, pursuant to Indiana Appellate Rule 14.1 challenging the trial court’s placement order for T.D.S., a child in need of services (“CHINS”). The COA denies DCS’s request for relief.

In Re the Guardianship of A.L.C. is a 30-page, 2-1 opinion involving temporary and permanent guardianship, as well as grandparent visitation.

NFP civil opinions today (2):

Katrina L. Snow and Christina M. Wright v. BR Associates, Inc. and Sidal, Inc. (NFP)

Betty McCord v. Kimble Glass (NFP)

NFP criminal opinions today (5):

Timothy Lee Pawson v. State of Indiana (NFP)

James Delaney v. State of Indiana (NFP)

William Slater v. State of Indiana (NFP)

Jonathan L. Benson v. State of Indiana (NFP)

Kango Douglas v. State of Indiana (NFP)

Posted by Marcia Oddi on March 12, 2009 10:50 AM
Posted to Ind. App.Ct. Decisions