« Courts - "Litigants become their own lawyers" | Main | Ind. Decisions - "Apparently there are all sorts of surprises in the special session budget" »

Monday, August 10, 2009

Ind. Decisions - Court of Appeals issues 7 today (and 8 NFP)

For publication opinions today (7):

In Dwight R. May v. Jerry George, an 11-page case, Judge May writes:

Dwight R. May sued Jerry George for negligence after he was injured by a tree that fell from George‟s property. George filed a motion for summary judgment, which the trial court granted. * * *

On July 10, 2008, George filed a motion for summary judgment. George argued that under Valinet v. Eskew, 574 N.E.2d 283 (Ind. 1991), a rural landowner does not owe a duty to protect others outside the land from physical harm caused by a natural condition of the land. George designated evidence that the land was rural and he did not have actual knowledge the tree was in a dangerous condition. This evidence included the police report; George's deposition and affidavit; May's deposition; the deposition of Dan Lucas, the superintendent of the Lawrence County Highway Department; and the report of Joseph Rainwater, a certified arborist. * * *

In order to establish a claim of negligence, May must show: (1) George owed May a duty, (2) George breached that duty, and (3) the breach proximately caused May's injuries. See Denison Parking, Inc. v. Davis, 861 N.E.2d 1276, 1279 (Ind. Ct. App. 2007), trans. denied. Negligence cases are usually fact-sensitive; however, a defendant is entitled to judgment as a matter of law if the undisputed facts negate at least one element of the plaintiff's claim. Id. The existence of a duty is a question of law. Id. * * *

May has not designated any evidence that George owed him a duty; therefore, we affirm.

In Lincoln Bank v. Conwell Construction, Hedger Construction, Inc., Mitchell Construction, Inc., et al, a 12-page opinion, Judge Bailey writes:
This dispute concerns a real estate developer and its five creditors. Lincoln Bank appeals the trial court’s order in which it concluded that Lincoln Bank’s mortgage was merely equal in priority to four mechanic’s liens. We reverse and remand with instructions, holding that the mortgage has priority over the mechanic’s liens.
Issue. * * *

The dispositive issue is whether the trial court erred in concluding that the mortgage and the four mechanic’s liens were equal in priority. * * *

For these reasons, we conclude that the trial court erred in ordering the five creditors to share equally in the foreclosure proceeds. Instead, the first priority is to satisfy Lincoln Bank’s mortgage. After that, the four mechanic’s liens are equal in priority.

D.S. v. State of Indiana - "The Indiana Department of Child Services (“IDCS”) seeks expedited review, pursuant to Indiana Appellate Rule 14.1, of the Madison Superior Court’s modified dispositional order placing D.S., a juvenile adjudicated to be a delinquent, in an out-of-state shelter care facility contrary to the IDCS’s placement recommendation. We affirm. * * *

"The court concluded IDCS’s placement recommendations were contrary to D.S.’s best interests. It placed D.S. in the Rite of Passage program and supported its order with specific factual findings based on ample evidence of D.S.’s history of drug abuse, gang affiliation, and expulsion from school, D.S.’s athletic and leadership abilities, his family relationships, his wishes and those of his mother, and the Probation Department’s formal recommendation. The trial court’s findings support its placement decision. We therefore cannot conclude that the trial court committed clear error in ordering that D.S. be placed in the Rite of Passage program."

Truck Finance Specialists, Inc. v. W & S. Leasing, Inc., et al "When they formed TFS, the Wades consented to Wiger and Smith essentially having permanent majority representation on TFS’s board of directors, unless Wiger and Smith decided to give up such representation. The trial court correctly concluded that the Wades’s attempt to remove Wiger and Smith from the board, amend the articles of incorporation to operate without a board of directors, and nullify the original bylaws were in violation of the IBCL, as well as the original articles of incorporation and bylaws. We affirm the trial court’s decision reinstating Wiger and Smith to the TFS board, as well as reinstating the original bylaws, and ordering TFS to rescind its amended articles of incorporation."

In Tamatha M. Nealy and John Nealy v. American Family Mutual Ins. Co., Shadawn Quinn, and Courtney Hammonds, a 16-page, 2-1 opinion, Judge May writes:

Tamatha and Hannah Nealy (collectively, ―The Nealys‖) appeal the grant of American Family Insurance’s motion for setoff and the denial of their motion to correct error and for additur. * * *

The trial court erred to the extent its grant of American Family’s motion for setoffs was premised on the advance payment statute, and the language of the Nealys’ policy did not permit the setoffs. We therefore reverse and remand for entry of judgment in the amount of the jury verdicts.

BARNES, J., concurs.
BAKER, C.J., concurs in part and dissents in part. [which begins, at p. 14] I respectfully dissent from the majority’s conclusions regarding the payments made by American Family to cover the Nealys’ medical expenses. I believe that the advance payment statute applies to these facts.

Phillip Stewart and Judith Stewart v. TT Commercial One, LLC, Thompson Thrift Inc., and Omer J. Stocker, Jr. - "Phillip Stewart and Judith Stewart (collectively, the “Stewarts”) appeal the trial court's grant of summary judgment to TT Commercial One, LLC (“Commercial One”), Thompson Thrift Development, Inc. (“Thompson Thrift”), and Omer J. Stocker, Jr. (collectively, the “TTCO Parties”). The Stewarts raise several issues, which we revise and restate as: I. Whether the trial court erred by granting summary judgment to the TTCO Parties; and II. Whether the trial court erred by ordering the Stewarts to pay attorney fees incurred by the TTCO Parties.

"We affirm in part, reverse in part, and remand."

Emmanuel McClendon v. State of Indiana - "Emmanuel McClendon appeals his conviction of and sentence for murder. We hold there was no error in the admission of evidence, the evidence was sufficient, the bailiff's communication with the prosecutors was harmless, and his sentence is appropriate. Therefore, we affirm."

NFP civil opinions today (5):

Shannon Harshman v. Randy Harshman (NFP)

Jeffrey and Michelle Holewinski v. The Landings Homeowner's Association (NFP) - "The Holewinskis appeal pro se, citing no legal authority, but claiming it is inequitable that they should have to pay HOA dues while the common areas of their housing complex are not adequately maintained. As best we can discern, they disagree with the small claims court’s determination that it lacked jurisdiction to order the equitable relief sought by the Holewinskis. * * *

"The jurisdiction of a small claims division of a superior court is limited to that which is granted by the Indiana Constitution or statute. Buckmaster v. Platter, 426 N.E.2d 148, 150 (Ind. Ct. App. 1981). A small claims court may award limited damages, but does not have power to award injunctive relief apart from the statute. Olympus Props., LLC v. Plotzker, 888 N.E.2d 334, 337 (Ind. Ct. App. 2008). As such, the small claims court correctly determined that it lacked jurisdiction to order the HOA to perform certain repairs requested by the Holewinskis or to remove HOA officers. The dismissal of the equitable claims was appropriate. Affirmed."

W.G., Alleged to be CHINS; A.G. v. IDCS (NFP)

Term. of Parent-Child Rel. of N.D., et al; S.D. v. IDCS (NFP)

Term. of Parent-Child Rel. of S.L., et al; A.L. & P.L. v. IDCS (NFP)

NFP criminal opinions today (3):

Billy Dee Williams v. State of Indiana (NFP)

Lawrence Lee Jones v. State of Indiana (NFP)

Logan LaSalle Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on August 10, 2009 12:33 PM
Posted to Ind. App.Ct. Decisions