The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

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Friday, June 05, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

For publication opinions today (3):

In Van Prooyen Builders, Inc. v. Earl L. Lambert, Jr. and Mildred Lambert, an 11-page opinion, Judge Najam writes:

Van Prooyen Builders, Inc. (“Van Prooyen”) appeals from the trial court's money judgment in favor of Earl Lambert, Jr., and Mildred Lambert (“the Lamberts”) for real property taxes owed under their real estate purchase agreement. The parties dispute whether, given the “late” assessment of real property in Lake County, their agreement requires the proration of 2006 taxes payable in 2007. The trial court noted that “since 2002 no tax bills [in Lake County] have been delivered on time” and held that, “due to factors completely beyond control of the parties,” the clause that requires that all real estate taxes “assessed against the subject property after closing shall be paid by the Buyer” is void as against public policy. See Appellant's App. at 31, 34, 46. We hold as a matter of law that, regardless of when the assessment was actually completed and the tax statements were issued, the March 1 statutory assessment date controls the operation and effect of the tax provision, which unambiguously prorates the 2006 taxes payable in 2007 as of the closing date. Thus, we affirm the trial court's judgment for the Lamberts. * * *

In sum, the fact that Lake County was late in assessing the real property taxes does not affect the parties' intent to prorate taxes according to their ownership of the property. The Tax Provision's last sentence means, simply, that once the Lamberts became title owners they likewise became personally responsible for those property taxes attributable to their ownership, regardless of any reassessments or adjustments, and that the Lamberts would be responsible for satisfying any tax liens against the property that attached after they acquired the title. We therefore must affirm the trial court's judgment for the Lamberts.

Conclusion The dispositive question in this appeal is not whether the Agreement violates public policy but whether the Tax Provision unambiguously provides for the proration of the 2006 tax liability. We hold that the statutory assessment date controls the Tax Provision, which is consistent with the parties' clear intent to prorate the tax liability. See Moll, 264 Ind. at 366, 344 N.E.2d at 839; Miller, 643 N.E.2d at 928; Johnson, 614 N.E.2d at 589. We affirm the trial court's judgment that Van Prooyen is required to pay to the Lamberts that portion of the 2006 taxes, payable in 2007, attributable to Van Prooyen's ownership of the property calculated to the closing date. Affirmed.

In Richard Moore v. Wells Fargo Construction, an 8-page opinion on rehearing, Judge Najam writes:

Moore has filed a petition for rehearing, asking us to reconsider our holding that Moore waived the argument that CIT’s sale of the Excavator was not conducted in a commercially reasonable manner. In particular, Moore argues that he was statutorily barred from waiving his right to a commercially reasonable sale of collateral.

Although Moore did not directly or indirectly make this argument in his Appellant’s Brief, on review we agree with Moore that, under the Uniform Commercial Code, he could not have waived the right to a commercially reasonable sale of collateral. As such, we grant Moore’s petition to consider whether CIT conducted the sale of the Excavator in a commercially reasonable manner. And, after considering that issue on the merits, we reaffirm the trial court’s decision. * * *

In light of all the circumstances, we cannot say that the trial court abused its discretion when it determined that CIT’s sale of the Excavator was conducted in a commercially reasonable manner. In all other respects, we affirm our prior opinion.

Rehearing granted, modified in part and reaffirmed in part.

In C.C. v. State of Indiana , a 6-page opinion, Judge Crone writes:

Did the trial court commit fundamental error by accepting jurisdiction in this case? * * *

From a common sense standpoint, if we were to follow C.C.’s reasoning to its illogical conclusion, his misdemeanor violation of the firearm statute would not fall within the jurisdiction of either the juvenile court or the adult criminal court and thus would go unpunished. We do not think this was the legislature’s intent. As the State points out, “[i]t is a rule of statutory interpretation that courts will not presume the legislature intended to do a useless thing or to enact a statute that is a nullity.” N. Indiana Bank and Trust Co. v. State Bd. Of Finance, 457 N.E.2d 527, 532 (Ind. 1983).

For all these reasons, we find no fundamental error in the juvenile court’s exercise of its jurisdiction in this case. Affirmed.

NFP civil opinions today (4):

Paternity of N.T.; D.K. v. B.T. (NFP)

In Re the Paternity of T.M.: J.M. v. C.C. (NFP)

The Invol. Term. of the Parent-Child Rel. of T.J., T.J., and T.J.; T.J. v. Indiana Dept. of Child Svcs. (NFP)

The Term. of the Parent-Child Rel. of De.S. and Dy.S.; N.F. v. Indiana Dept. of Child Svcs. (NFP)

NFP criminal opinions today (10):

Andrew G. Hartoin v. State of Indiana (NFP)

Dustin Messer v. State of Indiana (NFP)

Wendell Iddings v. State of Indiana (NFP)

Norman Anderson v. State of Indiana (NFP)

Shannon Terrell v. State of Indiana (NFP)

Anthony Malenchik v. State of Indiana (NFP)