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Tuesday, March 29, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)

For publication opinions today (3):

In Mike Hawa v. Gerald R. Moore , a 12-page opinion, Judge Vaidik writes:

Property owner Mike Hawa and contractor Gerald Moore entered into a contract for the installation of a recycled concrete base for a parking lot. When Moore walked off the job, Hawa filed a breach of contract claim in small claims court. Moore filed a counterclaim. Hawa now appeals the small claims court’s $4745 judgment in favor of Moore on his counterclaim. He contends that the court clearly erred by ruling in favor of Moore and improperly calculating damages and denied him due process by not giving him an opportunity to defend against Moore’s counterclaim or rebut Moore’s testimony. We conclude that Hawa repudiated the contract by failing to provide Moore with adequate assurance that he would pay for Moore’s services. The small claims court thus did not err by ruling in favor of Moore. However, the court erred by awarding Moore the cost of transporting certain materials after the lawsuit was filed, damages that Moore should have used reasonable diligence to mitigate. Finally, because the transcript shows that Hawa rejected the court’s offer to reschedule the matter for any further evidence, he was not denied due process. We therefore affirm in part, reverse in part, and remand for a reduction in the damage award.
In Connie Brumley, et al. v. Commonwealth Business College Education Corp. , a 21-page opinion, Judge Vaidik writes:
This is an interlocutory appeal from an order compelling arbitration. Plaintiff students Connie Brumley, Ronisha Smith, and Stephanie Anderson brought suit against defendant Brown Mackie College. The plaintiffs allege that they were fraudulently induced to enroll at Brown Mackie due to misrepresentations of accreditation. Brown Mackie moved to compel arbitration based on arbitration clauses in the plaintiffs' student enrollment agreements. The trial court sustained Brown Mackie's motion, and the plaintiffs now appeal. We conclude that, because the plaintiffs' action challenges the enrollment agreements in their entirety rather than the arbitration clauses in particular, the plaintiffs' claims remain subject to arbitration. We affirm. * * *

BAKER, J., concurs.

BARNES, J., concurs with separate opinion. [which concludes]I recognize that the students' allegations here are, at this point, unproven. Still, if true, it is plainly evident that Brown Mackie at best was disingenuous in its advertising, and at worst was actively dishonest in touting the surgical technology degree it offered. Although Brown Mackie trumpeted being “accredited” in its advertising and materials, that “accreditation” allegedly was insufficient to allow graduates to take the required exam for surgical technology certification. Indiana residents likely were hornswoggled here, and I am frustrated that we are powerless to intervene. I must trust that an arbitrator will fairly consider the students' claims.

I concur fully, but grudgingly.

In Ricky D. Whitaker v. Travis M. Becker, et al. , a 13-page opinion, Judge Darden concludes:
That said, we nevertheless find there are grounds that warrant the imposition of sanctions for the lack of proper diligence on the part of counsel for Whitaker. Collectively, we find that for counsel's failure to timely respond to letters of Becker's counsel regarding discovery matters, or to have requested an extension of time in which to respond to the request for production of discovery, rather than have counsel to seek production of discovery by court order, is unacceptable conduct by an officer of the court.

We reverse the trial court's order dismissing the case and the awarding of $3,700.00, as a reasonable amount for attorney's fees, herein. We affirm the trial court's order finding that there are grounds for sanction and the imposition of reasonable attorney's fees for unacceptable conduct by Whitaker. However, as noted above, we find that the conduct complained of, without any valid explanation by counsel in the record to the contrary, could have been avoided except for the failure of Whitaker's counsel. As a result, we find that counsel for Whitaker should be and hereby is sanctioned and ordered to pay to counsel for Becker the sum of $625.00 as reasonable attorney's fees in this matter.

NFP civil opinions today (1):

Eddie J. Williams, Jr. v. State Employees' Appeals Commission (NFP)

NFP criminal opinions today (1):

Francisco Ponce v. State of Indiana (NFP)

Posted by Marcia Oddi on March 29, 2011 11:26 AM
Posted to Ind. App.Ct. Decisions