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Wednesday, November 07, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Dennis Larson, Rose Real Estate, Inc., and Diversified Commercial Real Estate v. Peter N. Karagan, a 13-page opinion, Judge May writes:

Peter Karagan sued Dennis Larson, Rose Real Estate, and Diversified Commercial Real Estate (collectively, “Larson”) for breach of contract and conversion. Karagan moved for summary judgment and, after Larson did not respond to the motion, the court granted summary judgment for Karagan. On appeal, Larson argues genuine issues of fact precluded summary judgment and Karagan was not entitled to treble damages. On cross-appeal, Karagan argues he was entitled to prejudgment interest. We affirm in part, reverse in part, and remand. * * *

While a party who does not respond to a motion for summary judgment may be limited to the facts established by the movant’s submissions, such failure to respond does not preclude argument of the relevant law on appeal. Murphy, 930 N.E.2d at 1234.

We must therefore determine whether Karagan’s own designated evidence gives rise to a genuine issue of material fact that precludes summary judgment. It does not. * * *

Larson did not respond and the requests were deemed admitted. In light of those admissions we cannot find error to the extent the trial court determined there was no genuine issue of fact as to the interpretation of the parties’ oral agreement. Summary judgment for Karagan was not error. * * *

As Karagan demonstrated Larson was aware of a high probability its control over Karagan’s property was unauthorized, we cannot say the trial court erred in determining Karagan was entitled to treble damages. * * *

In the case before us the evidence, including Larson’s admissions, established what Karagan’s commission agreement was, the transactions for which he was entitled to commissions, and the amount of the commissions. The trial court therefore should have awarded Karagan prejudgment interest, see, e.g., Noble Roman’s, Inc. v. Ward, 760 N.E.2d 1132, 1140-41 (Ind. Ct. App. 2002) * * * We remand for it to do so.

In Fred C. Feitler, Mary Anna Feitler, and the Feitler Family Trust v. Springfield Enterprises, Inc., J. Laurie Commercial Floors, LLC, d/b/a Jack Lauries Floor Designs, JM Woodworking Co., an 18-page opinion, Judge Bradford writes:
At some point in mid-2010, Fred and Mary Anna Feitler, who were the sole beneficiaries of a land trust that owned real estate in DeKalb County, contracted with Cedar Creek Homes (“CCH”) to build a house on the property. Among other things, the Feitlers and CCH agreed that no mechanic’s lien could attach to the property in the event of nonpayment. CCH engaged several subcontractors, including Springfield Enterprises, J. Laurie Commercial Floors, LLC, and JM Woodworking Company, to work on the house. In February of 2011, before the house was completed, CCH informed all concerned that it was ceasing operations and would not be completing the house. When the dust settled, it appears that all subcontractors except Springfield, J. Laurie, and JM were paid off, and all three ultimately became involved in litigation against the Feitlers and the land trust. J. Laurie and JM argued that they should be able to hold mechanic’s liens against the property in question, while all three former subcontractors contended that they should be able to secure money judgments against the Feitlers. The trial court agreed with all of these arguments and entered summary judgment in favor of all three subcontractors on each of these claims.

On appeal, the Feitlers and the land trust contend that neither J. Laurie nor JM should be able to hold a mechanic’s lien against the real estate and also that the trial court erred in entering summary judgment in favor of the subcontractors on the question of personal liability. We agree that neither J. Laurie nor JM can hold a mechanic’s lien against the real estate and also conclude that the question of the Feitlers’ personal liability to the subcontractors should go to trial. * * *

We conclude that the trial court erred in concluding that JM and J. Laurie could hold mechanic’s liens against the property. In JM’s case, JM failed to issue the mandatory pre-lien notice, and in J. Laurie’s case, J. Laurie is bound by the Agreement. Consequently, we remand with instructions to enter summary judgment in favor of Appellants on these points. We further conclude that the trial court erred in entering summary judgment in favor of all three Appellees on the question of personal liability pursuant to the PLN statute. Concluding that there exists a genuine issue of material fact on whether the Feitlers satisfied the construction contract with CCH before Appellees sent notices of personal liability, we remand for trial on this question.

NFP civil opinions today (5):

In the Matter of C.C., (Minor Child), a Child in Need of Services; M.W., Mother v. Indiana Dept. of Child Services, Child Advocates, Inc. (NFP)

In the Matter of the Parent-Child Rel. of: K.E.G.-H. and D.G. v. The Indiana Dept. of Child Services (NFP)

Cherie Solms v. Michael Solms (NFP)

Brian Gale Waters v. Indiana Real Estate Commission, et al. (NFP)

Thomas Dudley and Barbara Dudley v. The Estate of Earl Studtmann (NFP)

NFP criminal opinions today (8):

Cornelius Hooten v. State of Indiana (NFP)

Cameron Williams v. State of Indiana (NFP)

John Salter v. State of Indiana (NFP)

LaQuinton Leonard v. State of Indiana (NFP)

Brandon Price v. State of Indiana (NFP)

Vincent O. Dates v. State of Indiana (NFP)

James S. Shidler v. State of Indiana (NFP)

Adrian Lotaki v. State of Indiana (NFP)

Posted by Marcia Oddi on November 7, 2012 11:59 AM
Posted to Ind. App.Ct. Decisions