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

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Monday, March 08, 2010

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

For publication opinions today (3):

In David Gertz, et al. v. Douglas Estes, et al. , an 8-page opinion involving a spite fence, Judge Barnes writes:

The Gertzes raise one issue, which we restate as whether the trial court erred by requiring them to completely remove a “spite fence.” The Esteses argue that they are entitled to appellate attorney fees under Indiana Appellate Rule 66(E).

This is the second appeal in a dispute between the Gertzes and the Esteses, neighbors in rural Hebron. See Gertz v. Estes, 879 N.E.2d 617 (Ind. Ct. App. 2008), trans. denied. As a result of a boundary line dispute, the relationship between the two couples disintegrated. At some point, the Gertzes equipped their home with a public address system and installed surveillance cameras capable of viewing the interior of the Esteses' residence. The Gertzes used the public address system to make disparaging comments to and about the Estes family on various occasions.

The Gertzes received a permit to construct a fence seven feet tall, but instead they erected a 720-foot long, eight-foot tall wooden fence, running parallel to and eight inches away from the property line. All along the three supporting horizontal slats, nail points protruded from the side of the fence facing the Esteses' property. The nails extended between a quarter- and a half-inch from the fence. As a result, “thousands of protruding nails” faced the Esteses' property. * * *

On September 13, 2005, the Esteses filed a complaint, alleging that the fence violated the Indiana “spite fence” statute, Indiana Code Section 32-26-10-1 to -2, and that the Gertzes' use of the cameras and public address system were a nuisance. * * *

Despite our denial of the Esteses' request for attorney fees, we caution the Gertzes that future court filings against the Estes family could be considered harassment and result in various sanctions, including but not limited to an award of attorney fees. We encourage the Gertzes to fully comply with the trial court's order and protective orders.

Conclusion. The trial court did not err by refusing to modify the original judgment or by again ordering the Gertzes to remove the fence, regardless of its decreased height. Further, we deny the Esteses' request for an award of appellate attorney fees. We affirm.

In Mayfair Investment Corp., et al. v. Wallace Patterson Bryant, et al. , a 19-page opinion (with many long footnotes) involving physical partition of real estate, Judge Brown writes:

The Appellants essentially argue that the trial court should have examined the impact of physical partition of Tract I in a vacuum and not account for the fact that the Illinois Building sits atop it. The Appellants argue that the trial court should have looked only at whether a six hundred square foot parcel was less valuable than the proceeds of its share from the sale of the entire 3,600 square feet comprising Tract I, and that the Appellants presented evidence showing that to be the case. The Appellants do not cite to any authority, however, for the proposition that the trial court could not consider the entire circumstances affecting the land in making its determination.

While the parties presented conflicting evidence regarding Tract I's susceptibility of physical partition or a sale, on appeal, we cannot reweigh the evidence. Buck, 833 N.E.2d at 116 (citing Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000), reh'g denied). Consequently, we cannot say that the trial court's findings adopting Lady's view of the susceptibility to physical partition are clearly erroneous. See Gibbs, 883 N.E.2d at 828-829.

For the foregoing reasons, we affirm the trial court's judgment of physical partition.

In Christopher R. Embry v. State of Indiana , a 16-page opinion, Judge Vaidik writes:

Christopher Embry appeals his conviction for Class D felony domestic battery. Embry was accused of beating his ex-wife. His theory at trial was that he acted in self-defense. When the victim took the stand, the defense impeached her by eliciting evidence of her animosity toward Embry. The State then offered evidence of five prior acts of violence that Embry allegedly committed against the witness in order to explain her hostility. Embry argues that the trial court erred by admitting this evidence in violation of Evidence Rule 404(b). We hold that, where the defense impeaches a State‟s witness by exposing her bias against the defendant, the State may not offer evidence of prior misconduct committed by the defendant against the witness solely to explain the witness‟s disposition. However, we conclude that Embry‟s uncharged misconduct was admissible to prove motive and negate his self-defense claim. We affirm.

NFP civil opinions today (2):

Laura Cyrus v. Town of Munster Board of Zoning Appeals (NFP) - "Based upon the foregoing, we cannot say that the BZA‟s denial of Cyrus‟ petition was arbitrary, capricious, or an abuse of discretion; in excess of statutory authority; or unsupported by substantial evidence. See Hoosier Outdoor, 844 N.E.2d at 162. Nor do we find clear error from the trial court‟s judgment affirming the BZA‟s determination because (1) the record contains facts and inferences to support the court‟s findings and conclusions; and (2) our review of the record does not leave us with a firm conviction that a mistake has been made. See Weida, 896 N.E.2d at 1223."

Betsy Duncan v. Kurt Duncan (NFP)

NFP criminal opinions today (12):

Robert T. Tiller v. State of Indiana (NFP)

Daniel Seltzer v. State of Indiana (NFP)

John W. Rendell v. State of Indiana (NFP)

Jason Dixon v. State of Indiana (NFP)

William Robinson v. State of Indiana (NFP)

Christopher A. Wilson v. State of Indiana (NFP)

Timothy Hobbs v. State of Indiana (NFP)

J.D.S. v. State of Indiana (NFP)

Jorge Granados v. State of Indiana (NFP)

Nasheed S. Waqia v. State of Indiana (NFP)