« Environment - Indiana Court of Appeals named as a Law Office Climate Challenge Partner by the ABA | Main | Ind. Decisions - NFP COA annexation decision reclassified »

Tuesday, April 28, 2009

Ind. Decisions - Court of Appeals issues 6 today (and 13 NFP) [Updated]

For publication opinions today (6):

Foundations of East Chicago v. City of East Chicago and State of Indiana - see ILB entry here.

In Thomas A. and Elizabeth A. Neu and Wells Fargo Bank v. Brett Gibson , a 23-page opinion, CJ Baker writes:

It has long been held that “equity will not suffer a wrong without a remedy.” King v. City of Bloomington, 159 N.E.2d 563, 564 (Ind. 1959). The parties in this case are engaged in a dispute regarding the foreclosure of their respective liens upon real estate located on Edgewood Avenue in Indianapolis (real estate). And this appeal follows our ruling in Gibson v. Neu, 867 N.E.2d 188 (Ind. Ct. App. 2007). * * *

We conclude that the appellants have properly preserved the issues and hold that the trial court properly determined that they were not entitled to a decree of foreclosure pursuant to their equitable subrogation lien. Also, while we find that the trial court properly denied the appellants' claims for interest amounts and attorney's fees under the terms of the prior mortgage that had been extinguished, remand is appropriate for the trial court to calculate the amount of statutory interest to which the appellants may be entitled. Finally, we conclude that the appellants are entitled to proceed with a sheriff's sale of the real estate. * * *

In our view, the legislature—in enacting the above statutes—desired to prevent situations occurring in circumstances such as these, where title to real property is left in limbo by a mortgagee who intends to take no action. Thus, we conclude that the trial court erred in refusing to allow the appellants to enforce their lien by way of foreclosure, and they should be able to request a sheriff's sale of the real estate in order to recover the value of their lien.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions for the calculation of statutory interest to which the Neus may be entitled, and for further proceedings consistent with this opinion.

In The Kroger Co., d/b/a Kroger Supermarket v. Lu Ann B. Plonski, a 14-page opinion, Judge Brown writes:
In this interlocutory appeal, the Kroger Co., d/b/a Kroger Supermarket (“Kroger”), appeals the trial court's denial of its motion for summary judgment regarding a complaint filed by Lu Ann B. Plonski. Kroger raises several issues, which we consolidate and restate as whether the trial court erred by denying Kroger‟s motion for summary judgment on Plonski's negligence claim. We affirm.
In Beazer Homes Indiana v. Carriage Courts Homeowners Assoc., Inc. , a 7-page opinion, CJ Baker writes:
Here, we must determine when a lot becomes a lot for the purpose of assessing homeowner assessment fees pursuant to the contract between the parties. Under the facts of this case, a lot becomes a lot upon the filing of the final plat.

Appellant-defendant Beazer Homes Indiana, LLP f/k/a Crossman Communities Partnership (Beazer), appeals the entry of partial summary judgment in favor of appellee- plaintiff Carriage Courts Homeowners Association, Inc. (the Association), arguing that the plain language of the parties’ contract requires the entry of partial summary judgment in Beazer’s favor. Finding that the trial court erroneously interpreted the contract as a matter of law, we reverse and remand with instructions to enter partial summary judgment in Beazer’s favor and for further proceedings.

A.C., Alleged to be CHINS; M.C. v. IDCS

Teresa Torres v. Individual Family and Social Svcs. Admin.

NFP civil opinions today (4):

J.O., Alleged to be CHINS; K.O. v. IDCS (NFP)

In the Matter of D.W. et al.; A.W. v. Marion Co. Dept. of Child Svcs. (NFP)

In the matter of T.F. v. Indiana Dept. of Child Svcs. (NFP)

Clinton W. Gibson III v. Review Board of Ind. Dept. of Workforce Development, et al. (NFP)

NFP criminal opinions today (9):

Joshua Wynn v. State of Indiana (NFP)

Richard N. Sayles v. State of Indiana (NFP)

Chas J. Harper v. State of Indiana (NFP)

Tyler R. Hinds v. State of Indiana (NFP)

Adrian M. Rios v. State of Indiana (NFP)

J.D.C., II v. State of Indiana (NFP)

Jimetha Goree v. State of Indiana (NFP)

Kevin E. Taylor v. State of Indiana (NFP)

Blas Olais-Corrales v. State of Indiana (NFP)

[Updated at 2:22 PM] One more opinion has been added to the list:

Gregory S. Brown v. State of Indiana, a 15-page opinion, where Judge Najam concludes:

In sum, Detective Branham, who both applied for and executed the search warrant, relied on information from a caller completely unknown to him and did not corroborate the information or the caller's credibility. With no indicia of reliability, corroboration was necessary. The warrant was defective for lack of probable cause.

Neither can the State invoke the good faith exception to save an otherwise invalid warrant based on evidence that was not presented at the probable cause hearing. An officer's personal belief in the existence of a warrant is not objectively reasonable when the purported factual basis for that belief is information the officer kept to himself. The good faith exception requires that the probable cause determination be made based on evidence in the record presented to a judicial officer. Because Detective Branham's telephone conversation with Deputy Dixon played no part in the probable cause determination and issuance of the warrant, those facts cannot be used to invoke the good faith exception.

Detective Branham's reliance on the search warrant was not objectively reasonable because it was plain that probable cause had not been established. See Hirshey, 852 N.E.2d at 1014; Spillers, 847 N.E.2d at 957. Thus, we conclude that the good faith exception does not apply in this case. The trial court erred when it denied Brown's motion to suppress.

Reversed and remanded.

Posted by Marcia Oddi on April 28, 2009 01:48 PM
Posted to Ind. App.Ct. Decisions