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Wednesday, March 17, 2010

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

In In the Matter of the Estates of Obed Kalwitz, Sr., and Helen Kalwitz; Eugene Kalwitz v. Sharon Grieger, a 10-page opinion, Judge Najam writes:

Eugene Kalwitz appeals the trial court's order denying his petition to reopen the estates of Obed Kalwitz, Sr., and Helen Kalwitz (“the Estates”). Eugene raises several issues on appeal, but we address only the following dispositive issue: whether Eugene timely filed his petition to reopen the Estates. We affirm. * * *

Here, Eugene sought to reopen the Estates under Section 14 for the sole purpose of correcting an alleged “scrivener[']s error” in the Deed. But the real estate was distributed by the Deed in the former administration of the Estates. As such, it is not “an asset which had escaped the former administration,” and Eugene cannot use Section 14 to collaterally attack the final judgment on an already-administered asset. * * *

Accordingly, in order to correct the alleged scrivener's error on the previously administered Deed, Eugene was obliged to file his petition for relief within one year of the date of the discharge of the co-personal representatives. I.C. § 29-1-17-13. Eugene failed to do so. The date of discharge was January 4, 2008, and it is undisputed that Eugene did not file his petition until more than fourteen months later, on March 18, 2009. Hence, his petition was untimely, and we affirm the trial court's grant of summary judgment to Sharon.

In Pamela S. Fackler v. Melvin J. Powell, Jr. and M. Jack Powell, Jr. Living Trust, a 14-page opinion, Judge Najam concludes:
The trial court erred when it calculated the prejudgment interest owing to Fackler at a rate of 12% until February 6, 2003, and a rate of 8% thereafter. We remand with instructions for the trial court to apply the 12% prejudgment interest rate to the amount Powell owed Fackler from the date of the dissolution decree, March 22, 2002, until the date of final judgment, June 2, 2009. Fackler is entitled to prejudgment interest for the period of time she pursued the action in the wrong court. The trial court did not abuse its discretion when it ordered Powell to pay Fackler's attorney's fees in the sum of $62,284.43. And the trial court did not abuse its discretion when it denied Powell's request for attorney's fees. Affirmed in part, reversed in part, and remanded with instructions.
In Jerry W. Bass, Bettye A. Bass, Jack E. Sutton, and Kathy L. Sutton v. Jeffrey C. Salyer and Renea M. Salyer, a 21-page opinion, Judge Najam concludes:
We conclude as a matter of law that the Salyers have not proved that they own a prescriptive easement over the Drive. The Salyers' contention that they demonstrated an intent to use the Drive adverse to the interests of the underlying fee simple title holders is not supported by the trial court's finding that the Salyers' use of the Drive was “unique and distinct.” Rather, the evidence supports a finding that while the Salyers built a private pier to facilitate their use of the lake, they used the public easement over the Drive to access the lake, which was a permitted use, the very purpose for the easement, and a right shared with the public. The Salyers have also not shown the establishment of a prescriptive easement in the Lot Owners' riparian rights. Again, riparian rights arise from a claimant's interest in the land abutting the water. Because the Salyers own neither a fee simple interest nor a prescriptive easement abutting the lake, they cannot and have not established a prescriptive easement in the Lot Owners' riparian rights. To the extent the trial court found to the contrary, the trial court's findings and conclusions are clearly erroneous. Reversed.
In Johnnie Stokes v. State of Indiana , a 14-page, 2-1 opinion, Judge Crone concludes:
Stokes has failed to demonstrate that he suffered grave peril as a result of the jurors' knowledge that he was incarcerated pending trial. Therefore, the trial court did not abuse its discretion when it denied Stokes's motion for a mistrial. The State presented insufficient evidence to support Stokes's convictions for the attempted robberies of Earnest Simmons, Gregory Arnold, Jr., Fred Winfield, Shantell Williams, and Collin Moore, and we reverse his convictions on those five counts. We affirm Stokes's remaining convictions. Given that Stokes's class B attempted robbery sentences were ordered to be served concurrent with his sentences on other counts, our decision to reverse those convictions does not affect Stokes's aggregate sentence. However, because the trial court ordered Stokes's sentences on all counts to be served either consecutive to or concurrent with his class A attempted robbery conviction that we have now reversed, we remand to the trial court for resentencing. Affirmed in part, reversed in part and remanded.

RILEY, J., concurs.
VAIDIK, J., concurs in part and dissents in part with separate opinion: I respectfully dissent from the majority's decision to reverse Stokes's conviction for the Class A felony attempted robbery of Moore. The evidence in the record is that Moore was in the recording studio hallway when he was ordered to “get down” by individuals he did not recognize and heard multiple gunshots, one of which struck him in his lower abdomen. I agree with the analysis of the Curtis Stokes Court that the fact that Moore "was singled out and directly ordered to 'get down' supports a reasonable inference that the perpetrators intended to rob him, but were interrupted when gunfire erupted." 919 N.E.2d at 1248. Because I believe that these actions constitute a substantial step toward the knowing or intentional taking of property from the person or presence of Moore, I would affirm Stokes's conviction for Class A felony attempted robbery.

NFP civil opinions today (3):

J.C. Penney Company, Inc. v. Simon Property Group, Inc., et al. (NFP)

George Dean King v. Kay S. King, et al. (NFP)

In the Matter of T.R., Alleged to be CHINS; K.T. v. IDCS (NFP)

NFP criminal opinions today (3):

Delores Bails v. State of Indiana (NFP)

Zachary Taylor v. State of Indiana (NFP)

Cicero Offerle v. State of Indiana (NFP)

Posted by Marcia Oddi on March 17, 2010 01:20 PM
Posted to Ind. App.Ct. Decisions