The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 7 today (and 23 NFP)

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Wednesday, March 10, 2010

Ind. Decisions - Court of Appeals issues 7 today (and 23 NFP)

For publication opinions today (7):

In Wells Fargo Bank, N.A. v. Tippecanoe Associates, LLC, Larry D. Contos, Paul M. Nicholson, and Scatterfield Road Associates, a 20-page opinion, Chief Judge Baker writes:

Two separate but related entities entered into mortgages on the same day. The mortgages refer to a cross-guaranty, but no such document was ever executed by the parties. Ten years later, the lending bank is attempting to enforce a non-executed, undated draft of the cross-guaranty against the debtors. Among other things, we find herein that the statute of frauds prohibits the bank from enforcing the cross-guaranty against them. * * *

We find that Midland is an improper party to this litigation, that the statute of frauds prohibits the unexecuted cross-guaranty from being enforced against Scatterfield, that the denial of the motion to appoint a receiver over Scatterfield was harmless error, and that the Tippecanoe receivership order impermissibly stripped the statutory right of redemption from Tippecanoe. Thus, we affirm in part, reverse in part, and remand with instructions detailed below.

In State of Indiana v. Shayla Shackleford & Devonna McDonald , a 12-page opinion, CJ Baker writes:

Appellant-respondent State of Indiana brings this interlocutory appeal challenging the post-conviction court’s denial of its motion for change of judge. Specifically, the State contends that various comments made by the trial judge at a status conference regarding matters involving appellees-petitioners Shayla L. Shackleford and Devonna T. McDonald (collectively, the petitioners) revealed a lack of impartiality that precludes him from taking future action in the case.

We conclude that the post-conviction court’s preliminary legal assessment of the case that was based upon the evidence in the record and the pleadings and memoranda filed in the case did not amount to personal bias or prejudice on the part of the judge that would render a fair judgment on the merits of the case impossible. Therefore, we find that the post-conviction court properly denied the State’s motion for change of judge. The judgment of the post-conviction court is affirmed, and we remand this cause for further proceedings consistent with this opinion.

In J. John Marshall and Marjorie Marshall v. Erie Insurance Exchange a/s/o Cindy Cain, a 13-page opinion, Judge Robb concludes:

The trial court properly concluded Erie’s service of its complaint upon Marjorie was sufficient, and the Marshalls owed a duty of reasonable care to protect Cain from harm caused by a tree falling from their property. In addition, sufficient evidence supports the trial court’s finding that the Marshalls breached their duty of reasonable care. Finally, the trial court properly found John jointly and severally liable for his own negligence. As a result, the trial court did not abuse its discretion when it denied the Marshalls’ motion to correct error, and the judgment of the trial court is affirmed.

W.S.K. v. M.H.S.B. is a 43-page opinion by Judge Friedlander where "W.S.K. appeals a grant of summary judgment in favor of M.H.S.B. in a multi-count complaint against M.H.S.B. stemming from that facility‘s denial of his application to join its medical staff. * * * W.S.K. is an oncologist/hematologist."

The ILB's question is -- why are the parties in this lawsuit not identified? The docket refers to Adm. Rule 9(G)(4)(a)(ii), which relates to cases in which the entire record is excluded from public access by statute or by rule.

The docket also shows an 8/17/09 order of CJ Baker, finding that "Appellant has shown cause why it is necessary to withhold the entire Appellant's brief and most of the Appellant's Appendix from public access." Judges May and Garrard concur, Judge Robb dissents.

ILB: What statute, what rule, what cause?

Charity Bailey v. State of Indiana - "In sum, the record reflects that Bailey is a self-absorbed and self-focused individual, and we cannot say that the thirty-five-year sentence, which was an enhancement of only five years above the advisory sentence for a class A felony, was inappropriate."

Thomas Munford v. State of Indiana - "The trial court did not commit fundamental error in instructing the jury regarding the defense of abandonment, and the State presented sufficient evidence to disprove Munford‟s defense of abandonment beyond a reasonable doubt."

Mark Wells v. State of Indiana - "Simply put, we cannot say Wells’s actions and responses constituted reasonable suspicion of criminal activity justifying a significant extension of the traffic stop. As such, the dog sniff of his vehicle and ensuing search was the result of an unconstitutional seizure. The trial court improperly denied Wells’s motion to suppress. We reverse."

NFP civil opinions today (6):

In the Paternity of D.P.; T.P. v. C.P. (NFP)

Big Lots Stores, Inc. v. Stanley E. Kerstiens (NFP)

Tamika (Bates) Henderson v. Carlos Bates (NFP)

The Estate of Nicole H. Tholl (NFP)

Hane Management Services, Inc., Mary Mabel Ellis Hane and Delbert Craig Hane v. Bank of Indiana, N.A. (NFP)

Hendricks County Planning and Building Department v. Thomas I. Goode (NFP)

NFP criminal opinions today (17):

Ronald L. Wright v. State of Indiana (NFP)

Eugene J. King v. State of Indiana (NFP)

Donald Brown v. State of Indiana (NFP)

Loreal L. Blackwell v. State of Indiana (NFP)