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Friday, May 29, 2009
Ind. Decisions - Court of Appeals issues 4 today (and 14 NFP)
For publication opinions today (4):
In Mark P. Franciose, et al v. Aaron A. Jones, a 25-page opinion, Judge Vaidik writes:
While driving through snowy weather, Ray Ramirez, III, lost control of his truck and crashed into guardrails on both sides of an interstate highway. The truck became stuck in the passing lane of the interstate. The occupants of the truck made their way to the side of the interstate. After another motorist stopped her car to block traffic and two semi-trucks created a barrier between the stranded truck and approaching traffic, Aaron A. Jones, one of Ramirez‘s passengers, approached Ramirez‘s truck to push it off the interstate so that other motorists would not crash into it. Mark P. Franciose came upon the traffic jam, drove his car on the shoulder of the interstate, and hit Jones, causing injuries. Jones sued Franciose and Ramirez. During the jury trial, Franciose unsuccessfully objected to the testimony of Jones‘s expert witness. The jury found in Jones‘s favor and awarded damages against both defendants. Both defendants appeal. Among other things, we conclude that Franciose did not sufficiently alert the trial court that he desired an inquiry pursuant to Indiana Evidence Rule 702(b) on the admissibility of Jones‘s expert witness‘s testimony. Further, we conclude that the superseding cause doctrine does not require reversal of the jury‘s verdict against Ramirez. We affirm.In In the Matter of M.D., J.D., and H.D.; Indiana Dept. of Child Svcs. v. B.D. and T.D., a 5-page opinion, Judge Kirsch writes:
The Indiana Department of Child Services (“DCS”) appeals from the trial court’s order dismissing, pursuant to Indiana Trial Rule 41(B), its petitions alleging that M.D., J.D., and H.D. (“the children”) were Children in Need of Services (“CHINS”). DCS raises the following restated issues: whether the trial court erred when it dismissed the CHINS petition concerning the children because sufficient evidence existed to support a CHINS finding. * * *In Crawfordsville Square LLC, et al v. Monroe Guaranty Insurance Co., Allstate Insurance Co., et al , a 13-page opinion, Judge Bradford writes:A fact-finding hearing was held on the CHINS petitions on October 22 and 23, 2008. Prior to this hearing, both parties filed motions requesting the trial court, pursuant to Indiana Trial Rule 52(A), to make specific findings of fact and conclusions thereon to support its decision after the fact-finding hearing. At the conclusion of DCS’s case during the fact-finding hearing, Parents orally moved to dismiss the CHINS petitions pursuant to Indiana Trial Rule 41(B). After argument by both parties, the trial court granted Parents’ motion to dismiss and issued an order dismissing the CHINS petitions on the children without issuing any findings of fact and conclusions. DCS now appeals. * * *
Trial Rule 41(B) states that when the trial court renders judgment on the merits against the plaintiff by granting an involuntary dismissal, it shall make findings when requested at the time of the motion. Although the rule is silent as to whether a motion filed prior to the commencement of the hearing is sufficient, we believe that the best practice and policy is for a trial court to issue findings supporting its decision to dismiss when requested to do so prior to a fact-finding hearing even when no subsequent request is made at the time of a motion under Trial Rule 41(B). When a motion for findings and conclusions is made prior to the admission of evidence, it requests the same outcome as a motion made at the time a party moves for involuntary dismissal under Trial Rule 41(B). A motion filed prior to the admission of evidence is requesting that a trial court specifically find the facts that it relies upon in its determination of the merits of the case and to state its conclusions based upon such facts. A Trial Rule 41(B) motion, if granted, concludes a hearing and makes a determination of the case on its merits.
Where, as here, both parties filed motions requesting that the trial court make specific findings and conclusions pursuant to Trial Rule 52(A) when the hearing concludes, we do not believe that requiring the parties to re-file their motions requesting findings at the time that a motion to involuntarily dismiss is made serves any purpose. A motion filed prior to a hearing encompasses the same intent as one filed simultaneously with a Trial Rule 41(B) motion to dismiss, which is to request findings and conclusions to support a trial court’s decision on the merits following a fact-finding hearing. Here, the trial court’s order dismissing the CHINS petitions on the children pursuant to Trial Rule 41(B) was a disposition of the case on the merits following a fact-finding hearing, and the trial court should have issued specific finding and conclusions to support such determination because it was requested to do so by the parties. We therefore remand this case to the trial court with instructions to issue specific findings and conclusions supporting its determination to dismiss the CHINS petitions.
Remanded with instructions.
Appellants Crawfordsville Square, LLC, and Crawfordsville Square II, LLC (collectively, “CS”), appeal from the trial court's denial of their motion for partial summary judgment against Appellee Monroe Guaranty Insurance Company and the trial court's grant of Monroe Guaranty's motion for partial summary judgment. At issue is whether Monroe Guaranty has a duty to defend CS in a series of administrative actions and lawsuits arising out of the contamination of property owned by CS. We affirm the judgment of the trial court. * * *In Jack Mikel, et al. v. Donald Johnston, et al. , a 10-page opinion, Judge Mathias writes:On August 23, 2005, CS brought suit against former owners of the Parcel and their insurers seeking to “obtain funding to remediate soil and groundwater contamination” of the Parcel.
In late 2006 and early 2007, Monroe Guaranty denied to CS that it was obligated to defend it against the IDEM action and counterclaims that were eventually brought by prior owners of the Parcel and their insurers. On March 2, 2007, Monroe Guaranty brought suit for declaratory judgment on the issue of its duty to defend CS. On September 26, 2007, CS filed a motion for summary judgment. On December 4, 2007, Monroe Guaranty responded to CS's motion for summary judgment and filed a cross-motion for summary judgment. On June 25, 2008, the trial court denied CS's motion for summary judgment and granted Monroe Guaranty's. * * *
CS contends that the “known loss” doctrine does not preclude coverage in this case and therefore does not excuse Monroe Guaranty from its obligation to defend CS. * * *
CS contends that the designated evidence creates a genuine issue of material fact regarding whether, when it added the Parcel to its policy with Monroe Guaranty, it was not actually aware that a loss had occurred, was occurring, or was substantially certain to occur. We disagree. * * *
As previously mentioned, we conclude that the designated evidence establishes that CS had the required actual knowledge of dry cleaning fluid contamination at actionable levels, which constitutes a known loss. We conclude that CS has failed to establish a genuine issue of material fact regarding known loss.
CS also contends that, even if Monroe Guaranty establishes a known loss, the designated evidence also raises a question of fact regarding whether Monroe Guaranty knew of the loss as well. * * * We cannot agree. The relevant designated evidence relating to Monroe Guaranty's prior knowledge of the Parcel indicates only that it was aware that a dry cleaner was operating on the Parcel at the time of the closing. This mere knowledge does not, however, create a genuine issue of material fact regarding whether Monroe Guaranty had actual knowledge of actionable levels of dry cleaning-related contamination. Quite simply, there is nothing in the designated evidence to suggest that the mere presence of a dry cleaning business invariably leads to actionable contamination of the land on which it sits. Moreover, even if such contamination is inevitable, there is no evidence that Monroe Guaranty knew this. CS has not established that the designated evidence establishes a genuine issue of material fact regarding whether Monroe Guaranty knew of the actionable contamination at the Parcel.
We conclude that CS has failed to establish genuine issues of material fact regarding its known loss and whether Monroe Guaranty also knew of CS's loss. As such, the trial court correctly granted Monroe Guaranty's motion for summary judgment on the question of coverage, and we need not address CS's other arguments on appeal.
Jack and Nathan Mikel, d/b/a Mikel Farms (“the Mikels”), appeal the order of the Kosciusko Circuit Court denying their objection to the sale of certain real estate located in Kosciusko County. The Mikels appeal and argue that the trial court erred in denying their objection because of a defect in the notice of sale. We affirm. * * *NFP civil opinions today (4):We acknowledge that the trial court’s order stated that reasonable public notice should be given pursuant to Section 2(j). We read the trial court’s order to mean that the reasonable public notice requirement of Section 12 could be met by publishing the notice of the sale twice, as set forth in Section 2(j). Certainly, publication of the notice of sale twice, as required by Section 2(j), would meet the Section 12(b) requirement of reasonable public notice. But this does not mean that the reasonable public notice requirement of Section 12(b) can only be met by publishing notice twice under Section 2(j). To meet the requirements of Section 12, the notice of the sale must simply be reasonable public notice. The Mikels do not explain why the public notice that was given in the present case was not reasonable.
Furthermore, even if we were to assume that the failure to give two public notices, per the trial court’s original order, was improper, the Mikels have not established that they have been harmed by any error. See Heagy v. Kean, 864 N.E.2d 383, 388 (Ind. Ct. App. 2007) (citing Indiana Appellate Rule 66(A) for the proposition that we will not reverse for errors that do not affect the substantial rights of the parties). The Mikels claim that “[i]t is reasonable to conclude that advertising a property for sale twice, as opposed to once, would improve the possibility of more potential bidders being informed of the offered sale. This could enhance the prospects of more competitive bidding, as well as the prospects of obtaining a higher sales price.” Appellant’s Br. p. 11. This is speculation. The Mikels point to no actual evidence that an additional published notice would have resulted in a higher sales price. Moreover, they do not claim that the price actually obtained was inadequate. In short, the Mikels have not established prima facie error. Affirmed.
Term. of Parent-Child Rel. of J.G.; D.G. v. Indiana Dept. of Child Svcs. (NFP)
Paternity of A.M.; T.E. v. S.H. (NFP)
Temple & Temple Excavating & Paving v. Farris Peacock (NFP) - " The question whether the defendant’s conduct is the proximate cause of the plaintiff’s injuries, however, is a question of fact for the jury’s determination. * * * The trial court did not err in denying Temple’s motion for summary judgment."
Jon Huff and Mary Huff v. Mike Stoffel and Rose Stoffel (NFP) - "Appellants-Defendants Jon Huff and Mary Huff appeal following the trial court's award of $11,525 in damages, $14,036.10 in attorney's fees, and costs, in favor of Appellees- Plaintiffs Mike Stoffel and Rose Stoffel in their breach-of-contract action against the Huffs arising out of the parties' real estate purchase agreement. Upon appeal the Huffs challenge the judgment on several grounds, including two grounds which we find dispositive: whether the trial court committed clear error in (1) finding constructive fraud, and (2) enforcing the parties' purchase agreement despite a lack of evidence demonstrating compliance with Indiana Code section 32-21-5-10(c) (2005). Concluding that the trial court committed clear error on both grounds, we reverse and remand for vacation of the trial court's judgment. "
NFP criminal opinions today (10):
Jeffrey Whitsey v. State of Indiana (NFP)
Stephanie R. Twilley v. State of Indiana (NFP)
Misty Lee Jones v. State of Indiana (NFP)
Thomas L. Smith v. State of Indiana (NFP)
Anthony J. Niebrugge v. State of Indiana (NFP)
D.C. v. State of Indiana (NFP)
Albert L. Marshall v. State of Indiana (NFP)
Kevin Potter v. State of Indiana (NFP)
Justin Scott Elser v. State of Indiana (NFP)
Arturo Salinas Gallardo v. State of Indiana (NFP)
Posted by Marcia Oddi on May 29, 2009 10:51 AM
Posted to Ind. App.Ct. Decisions