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Tuesday, March 16, 2010
Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)
For publication opinions today (5):
In Richard Thomas, Allita Thomas and Trustcorp Mortgage Co. and Fannie Mae and Everbank v. Benjamin Thomas, a 9-page opinion, Judge Bradford writes:
Appellant/Defendant Trustcorp Mortgage Company and Appellants/Third-Party Defendants Fannie Mae and EverBank appeal from the trial court’s judgment in favor of Appellee/Plaintiff Benjamin Thomas. Appellants challenge the trial court’s conclusion that the mortgage Trustcorp holds on Benjamin’s home is invalid. We affirm. * * *The opinion includes an interesting footnote #2 on p. 9, following the end of this quoted statement in the text: “It is a fundamental principle, worthy of the rank of a maxim, that what fraud creates equity will destroy.” Footnote #2 provides:In light of the amount of the loan, $118,000, we believe that a reasonably prudent lender would have taken the simple steps necessary to verify that a superior $200,000 mechanic’s lien had indeed been released, especially when the release instrument had been improperly notarized. * * *
It is not enough to show fraud on the part of the vendor, where the purchaser is not a mere volunteer, but pays a consideration for the land. To set aside the conveyance as fraudulent, much more must be shown.”) (citations omitted). As in the lis pendens context, the question here is whether Trustcorp qualifies as a bona fide mortgagee. As we previously decided, however, Trustcorp could not have been a bona fide mortgagee due to its failure to investigate Benjamin’s interest in the home. Consequently, we affirm the trial court’s judgment in this respect as well.
The version of this citation found in the www.westlaw.com database places quotation marks around the phrase “what fraud creates equity will destroy.” While this error does not seem to alter the meaning of the citation, we will continue to exercise caution in citing to non-official authorities.What this means to me is that the Court is not simply relying on West's online database, but is looking back to the original opinion. The need to do so is pointed out in footnote - there is a variance. One additional thing I wish the Court would have done would have been to identify that the official source it looked to was the 1922 Indiana Appellate Reports. It would also be interesting to know whether punctuation in the 1922 Northeast Reporter version parallels the official version, or West's online version.
In Steven Siwinski, et al. v. Town of Ogden Dunes , an 8-page opinion, Judge Kirsch concludes:
Previous Indiana cases that have analyzed the language of restrictions on land use regarding residential uses have determined that such language was concerned with the physical activity conducted upon the property and not the profit-making intentions of the homeowners. Applegate, 908 N.E.2d at 1219; Lewis-Levett v. Day, 875 N.E.2d 293, 296 (Ind. Ct. App. 2008), trans. denied; Stewart, 635 N.E.2d at 192. As in Applegate, the renters of the Siwinskis’ property used the house for eating, sleeping, and other activities typically associated with a residence or dwelling place. Nothing in the designated evidence established that any commerce or other activities not associated with a residence were ever conducted on the Siwinskis’ property. Nor did the evidence show that, at any time, the property was occupied by more than a single family simultaneously. Under the trial court’s overly broad construction of the Ordinance, the Siwinskis would be prohibited from, and subject to substantial fines for, such things as having weekend guests or allowing family members to use the property while they were away as the property would then not be occupied exclusively as a residence by one family. We conclude that it was error to find that the Siwinskis’ occasional short-term rental of their property was a commercial and not a residential use. The trial court erred when it granted summary judgment in favor of the Town and denied the Siwinskis’ motion for summary judgment. We reverse the summary judgment entry in favor of the Town and the trial court’s injunction and fine and remand to the trial court with instructions that summary judgment should be entered in favor of the Siwinskis.In Francisco and Alisa Delgado v. Peter Boyles, et al. , a 10-page opinion, Judge Riley concludes:
We agree with the trial court. In light of Daffron and Reuille, the Delgados cannot be considered a prevailing party under the Vacant Land Purchase Agreement. Unlike Daffron, where the trial court entered a consent judgment after the settlement, the Delgados had nothing but a private settlement agreement. Moreover, in the absence of a contractual definition of prevailing or successful party and a trial on the merits, as in Reuille, we conclude that litigation which is resolved by mediation or private settlement cannot result in a winner or loser. Consequently, the Delgados are not entitled to attorney fees.In Paternity of L.S.; M.S. v. L.S. and B.S. , a 14-page opinion, Judge Kirsch writes:
L.J.S. was born out of wedlock. In a custody dispute between L.J.S.’s maternal grandparents, L.S. and B.S. (“Grandparents”), and his natural father, M.W.S. (“Father”), the trial court granted Grandparents’ request for custody. Father appeals, raising the following restated issue: whether the important and strong presumption that L.J.S.’s interests are best served by placement with Father has been clearly and convincingly overcome by evidence proving that the child’s best interests are substantially and significantly served by placement with Grandparents. We hold that it has not. Accordingly, we reverse and remand.Lee Carroll v. State of Indiana - "Although the maximum sentence for a class A misdemeanor is a one-year term, see I.C. § 35-50-3-2, upon conviction of more than one misdemeanor offense, a defendant may be ordered to serve the sentences therefor consecutively. Dunn v. State, 900 N.E.2d 1291 (Ind. Ct. App. 2009). Here, the victim was attacked by two dogs, leading to the reasonable inference that her horrendous injuries were doubled. Such supports the imposition of consecutive sentences."
NFP civil opinions today (5):
Stacy Caldwell v. Shawn Caldwell (NFP) - "Although we find that the trial court erred in finding that the Agreement was unambiguous, we find that the trial court correctly denied Stacy relief under Trial Rule 60(B). Giving effect to the parties’ intent of a 50/50 split of the overall marital estate would involve a division of the investment accounts at the time of transfer, with 50% plus $8,000.00 going to Stacy, and 50% less $8,000.00 going to Shawn. This division would reduce what Stacy receives and increase Shawn’s share. Since neither party argues for such a division, we conclude that Stacy has failed to show that she was prejudiced as a result of the trial court’s ruling. As a result, any error in the trial court’s ruling was harmless."
Term. of Parent-Child Rel. of J.R. and C.R.; D.C. v. IDCS (NFP)
Walter W. Jennings v. Judge Peter J. Nemeth (NFP) - "Further, a party who knowingly decides to proceed pro se despite his lack of legal training cannot claim on appeal that he was prejudiced by his own lack of legal knowledge. See Carter v. State, 512 N.E.2d 158 (Ind. 1987) (pro se defendant may not claim ineffective assistance of counsel because he would be alleging himself ineffective). We find that the Circuit Court did not err by not inquiring into Jennings’s competence to manage the proceedings pro se. Judgment affirmed."
Sylvester Hunter and Fitzhugh Lyons, Sr. v. Minton Business Services, LLC (NFP)
NFP criminal opinions today (5):
Jeffrey Penick v. State of Indiana (NFP)
Kevin Simmons v. State of Indiana (NFP)
Joseph L. Cottman v. State of Indiana (NFP)
Cory A. McClarin v. State of Indiana (NFP)
Roy A. Smith v. State of Indiana (NFP)
Posted by Marcia Oddi on March 16, 2010 12:15 PM
Posted to Ind. App.Ct. Decisions