April 07, 2004

Indiana Decisions - Numerous Court of Appeals and One Tax Court Ruling(s) Posted Today

Commissioner Sally McCarty v. Vicki L. Sanders, et al. (4/7/04 IndCtApp) [Medical Malpractice; Statutory Construction]

Stephen & Suzan Cox v. William E. Paul, DDS (4/7/04 IndCtApp) [Tort]

In the majority opinion, Judge Mathias, with Judge concurring, rule as follows:

Suzan and Stephen Cox (“the Coxes”) filed a complaint against Dr. William Paul (“Dr. Paul”) in St. Joseph Circuit Court alleging that Dr. Paul breached his duty to warn Suzan that her dental implants were potentially defective and subject to recall. The Coxes filed a motion for partial summary judgment arguing that Dr. Paul breached his duty to warn as a matter of law. The trial court denied the motion. The Coxes have filed this interlocutory appeal and argue that the trial court erred when it denied their motion because the undisputed material facts establish that they are entitled to judgment as a matter of law. Concluding the undisputed material facts presented in this case establish that Dr. Paul breached his duty to warn, we reverse and remand for proceedings consistent with this opinion.
In dissent, Judge Sharpnack begins:
I respectfully dissent from the majority’s holding that the trial court’s denial of the Coxes’ motion for summary judgment was erroneous. The majority’s holding is based upon our supreme court’s decision in Harris v. Raymond, 715 N.E.2d 388 (Ind. 1999), reh’g denied. However, I interpret Harris differently than the majority and conclude that the trial court properly denied the Coxes’ motion for summary judgment.
Thomas G. Jaehnen v. Phillip R. Booker (4/7/04 IndCtApp) [Contracts]

Concerns a cognovit provision in a promissory note.

Larry L. Bailey v. Carlus H. Holiday, et al. (4/7/04 IndCtApp) [Real Estate; Property]

In this interlocutory appeal, Larry Bailey (“Contractor”) appeals the trial court’s order releasing the mechanic’s lien on real property of Carlus Holliday and Steve Goodman (collectively referred to as “Owners”) and the trial court’s denial of Contractor’s motion to correct error. Contractor raises one issue, which we restate as whether the trial court abused its discretion when it released the mechanic’s lien on Owners’ property. We reverse.

The relevant facts follow. Owners entered into a written contract with Contractor for the installation of drywall in their residence. After Contractor completed drywall work in the house, he sent an invoice for $5,400 to Owners. Owners disputed the amount and did not pay the invoice.

Contractor filed a notice of intention to hold a mechanic’s lien for $5,400 on Owners’ real estate with the Floyd County Recorder’s Office and later filed a complaint to foreclose the mechanic’s lien. Owners filed a written undertaking pursuant to Ind. Code § 32-28-3-11 and paid $5,400 to the trial court clerk. That same day, the trial court ordered that the written undertaking be approved and that the mechanic’s lien against Owners’ property be released.

Bourbon Mini-Mart, Inc., et al. v. Indiana Department of Environmental Management (4/6/04 IndCtApp) [Statutory Construction]
Sharpnack, Judge

Here the Court affirms the lower court on the question of "whether the trial court correctly applied Ind. Code § 13-7-20-19(b) [now IC 13-23-13-2] in granting IDEM’s motion for summary judgment. We affirm."

In summary, we hold that the trial court did not err by concluding that I.C. § 13-7-20-19(b) should be read in the disjunctive and that IDEM was required to satisfy only one of the four subsections listed in I.C. § 13-7-20-19(b) before it could seek recovery of its actual costs from Mini-Mart. We also hold that there is no genuine issue of material fact with regard to whether IDEM satisfied I.C. § 13-7-20-19(b)(2). Because IDEM is only required to satisfy one of the four subsections in I.C. § 13-7-20-19(b), and we hold that it did satisfy I.C. § 13-7-20-19(b)(2), IDEM properly undertook corrective action and is entitled to seek recovery of actual costs from Mini-Mart. Therefore, the trial court did err by granting IDEM’s motion for summary judgment.
For the forgoing reasons, we affirm the judgment of the trial court. Affirmed.
MATHIAS, J. and VAIDIK, J. concur
Reginald L. Ward v. Indiana Parole Board (4/7/04 IndCtApp) [Criminal Law & Procedures; Statutory Construction]

The question here was: "Whether his parole revocation hearing was conducted within sixty days of his extradition. Concluding Ward’s revocation hearing was timely, we affirm."

Westfield Insurance Company v. Yaste, Zen & Rye Agency (4/7/04 IndCtApp) [Insurance; Tort]

Issues of negligence; fraudulent misrepresentation.

Community Development Corporation v. Property Tax Assessment Board of Appeals of Marion County (4/6/04 IndTaxCt) [Property Tax Exemptions; Not for Publication]

Consequently, because the Indiana Board did not consider the entirety of CDC’s argument, the Court REVERSES and REMANDS the Indiana Board’s three final determinations. Upon remand, the Indiana Board is ordered to instruct the local assessing officials to determine whether CDC’s land qualifies for an exemption under Indiana Code section 6-1.1-10-16(c) and consistent with this opinion.

Posted by Marcia Oddi at April 7, 2004 03:06 PM