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Friday, June 07, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In In the Matter of the Supervised Admin. of the Estate of Cora E. Young, deceased; Terry Douthitt, Kelly Douthitt, and Kevin Douthitt v. Theodore R. Young, an 8-page opinion, Judge Vaidik writes:

Terry Douthitt, Kelly Douthitt, and Kevin Douthitt (collectively “the grandchildren”), appeal the trial court’s denial of their motion to reconsider. They contend that based on the language of Cora Young’s will, the trial court erred in finding that the proceeds of a sale of her property should be distributed to her second husband at her death. We hold that since the property was a specific bequest under Cora’s will and was sold before Cora’s death, it was adeemed by extinction and therefore the proceeds pass to the residuary beneficiary under her will. Finding that the residuary beneficiary is her second husband, we affirm the trial court.
In Gayle Fischer v. Michael and Noel Heymann, a 25-page, 2-1 opinion, Judge Najam writes:
Gayle Fischer brings this interlocutory appeal from the trial court’s judgment against Michael and Noel Heymann for $93,972.18 in damages on her breach-of-contract claim. Fischer requests that we vacate the trial court’s findings and conclusions on her failure to mitigate and remand with instructions to award actual and consequential damages in the amount of $286,409.43. On cross-appeal, the Heymanns assert that the trial court’s specific findings required the court to enter a damage award of $117 for Fischer. We consolidate the parties’ arguments and consider the following two issues:

1. Whether the trial court’s findings that Fischer would not have been damaged had she agreed to make the repairs identified in the inspection report on or before February 18, 2006, means that Fischer failed in her duty to mitigate her damages; and

2. Whether the trial court abused its discretion when it limited Fischer’s award for attorney’s fees and court costs in accordance with her failure to mitigate her damages.

We hold that the Heymanns committed an anticipatory breach of the purchase agreement on February 10, 2006; that, given the evidence and the trial court’s findings, Fischer’s duty to mitigate arose on February 11, 2006, when she learned of the Heymanns’ breach; and that Fischer failed to act with reasonable diligence to mitigate her damages at her first opportunity, which was no later than February 18, 2006. We also hold that the trial court acted within its discretion when it limited Fischer’s award for attorney’s fees and costs. Based on the undisputed evidence and the trial court’s finding that Fischer would have incurred virtually no damages had she taken reasonable steps to mitigate on or before February 18, 2006, we reverse the trial court’s judgment on damages and remand with instructions that the trial court amend Fischer’s damage award to $117, reasonable attorney’s fees commensurate with that award, and court costs. * * *

Reversed and remanded with instructions.
FRIEDLANDER, J., concurs.
BRADFORD, J., dissents with separate opinion. [which begins, on p. 20 of 25] Because I do not believe the majority opinion is an appropriate application of the mitigation of damages doctrine, I respectfully dissent. I would reject the Heymanns’ argument that Fischer failed to mitigate her damage on February 18, 2006, by not responding to the Heymanns’ inspection response, affirm the trial court’s holding that Fischer failed to mitigate her damages on February 16, 2007, by not accepting Johnson’s offer to purchase the home for $240,000.00, and affirm the court’s judgment for Fischer in the amount of $93,972.18.

NFP civil opinions today (1):

In the Matter of the Term. of the Parent-Child Rel. of: M.R. and L.P. v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (4):

Jerome K. Jackson, Jr. v. State of Indiana (NFP)

Cody Matthew Fritz v. State of Indiana (NFP)

James D. Brooks v. State of Indiana (NFP)

Larry C. Perry, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on June 7, 2013 11:44 AM
Posted to Ind. App.Ct. Decisions