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Monday, November 04, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

In Claire's Boutiques, Inc. v. Brownsburg Station Partners LLC, a 17-page opinion, Judge Najam writes:

Brownsburg Station Partners, LLC (“Brownsburg Station”) filed a complaint against Claire’s Boutiques, Inc. (“Claire’s”) alleging that Claire’s had breached its lease (“Lease”) for commercial retail space in Brownsburg Station Shopping Center. The parties filed cross-motions for summary judgment and, after a hearing, the trial court issued its order, with findings of fact and conclusions thereon, granting Brownsburg Station’s motion for summary judgment and denying the cross-motion filed by Claire’s (“Summary Judgment Order”). Claire’s filed a motion to reconsider, which the trial court granted, vacating the Summary Judgment Order (“Reconsideration Order”). Following a two-day bench trial, the court issued findings of fact and conclusions thereon and entered judgment in favor of Brownsburg Station but denied its request for consequential damages (“Judgment”).

Claire’s appeals the Reconsideration Order and the Judgment, and Brownsburg Station cross-appeals the Judgment denying consequential damages. We address two dispositive issues on appeal:

1. Whether the trial court erred when it construed the operating co-tenancy provision in the Lease to allow Claire’s to terminate the Lease if the occupancy level fell below seventy percent of the gross leasable area rather than “70% of the non-department retail store tenants in Buildings A1 and A3.”
2. If the trial court erred in its construction of the co-tenancy provision, whether the trial court also erred when it determined that Claire’s had not terminated the Lease by vacating the premises before Brownsburg Station terminated the Lease by written notice.

We reverse and remand with instructions.

In Gregory A. Harris v. State of Indiana, a 12-page opinion where both the State and the defendant petitioned for rehearing, the Court denies both. Judge Crone writes:
Both Gregory A. Harris and the State have petitioned for rehearing of our opinion in Harris v. State, 992 N.E.2d 887 (Ind. Ct. App. 2013), in which we held that (1) Harris’s acquittal on a rape charge did not preclude relitigation of a hung charge of sexual misconduct with a minor for the same act of sexual intercourse and (2) the State could not amend the charging information to add “or deviate sexual conduct” to the sexual misconduct charge. We grant rehearing for the limited purpose of addressing a subsequent decision by the Indiana Supreme Court on the issue of double jeopardy but affirm our opinion in all other respects.
NFP civil opinions today (0):

NFP criminal opinions today (1):

Robert M. King v. State of Indiana (NFP)

Posted by Marcia Oddi on November 4, 2013 10:17 AM
Posted to Ind. App.Ct. Decisions