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Friday, November 06, 2009
Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)
For publication opinions today (2):
In Robert P. Koors, et al. v. Walter W. Steffen, et al. , a 10-page opinion, Judge Bradford concludes:
Having determined that the parties agreed that any and all issues arising out of the Contract, including issues relating to liens, shall be submitted to binding arbitration, and that the Steffens have not waived their right to demand arbitration, we now consider Koors’s contention that the trial court abused its discretion in dismissing the instant matter rather than staying the matter pending arbitration. * * *Teddy L. Garcia v. State of Indiana - "The conviction of Operating a Motor Vehicle While Intoxicated, as a Class A Misdemeanor is affirmed. The elevated conviction as a Class D Felony is reversed, as is the Habitual Substance Offender enhancement. The cause is remanded for further proceedings."Here, the record demonstrates that although the entire controversy between Koors and the Steffens arose out of and related to the Contract, further action by the trial court could potentially be required if the arbitration panel were to find for Koors and determine that foreclosure is a proper remedy. We note that had we concluded that the parties’ Contract was a no lien contract, then we would agree that dismissal of the instant action would have been proper. However, having concluded that the parties’ Contract did provide for the possibility that a lien could arise out of the parties’ Contract, and in light of Indiana Code section 32-28-3-6 (2009) which requires that a complaint for foreclosure “must be filed not later than one year after the date the statement and notice of intention to hold a lien was recorded,” we conclude that the proper action would have been to stay the matter pending arbitration.[2] Therefore, under these circumstances, we conclude that the trial court abused its discretion in dismissing rather than staying the matter pending arbitration.
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[2] In concluding that the dismissal of the instant matter constituted an abuse of the trial court’s discretion, we note that although Indiana Code section 34-11-8-1 (2009) provides that a plaintiff’s action that is subsequently dismissed for any cause except plaintiff’s negligence in the prosecution of said action may bring a new action within three years after the date of the dismissal of the prior action, and the new action shall be considered a continuation of the plaintiff’s original action, we observe that while remote, it is possible that arbitration proceedings may not conclude within three years and as a result, Koors could potentially be left without the ability to foreclose as a proper remedy.
NFP civil opinions today (0):
NFP criminal opinions today (1):
Kevin N. Jones v. State of Indiana (NFP)
Posted by Marcia Oddi on November 6, 2009 10:46 AM
Posted to Ind. App.Ct. Decisions