ILNews

Court to decide on prevailing party issue

Jennifer Nelson
January 1, 2008
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The Indiana Supreme Court granted transfer Thursday to determine who would be considered the "prevailing party" when a settlement lacks a judicial resolution.

In Kirk Reuille v. E.E. Brandenberger Construction, Inc., No. 02A04-0704-CV-186, Reuille appealed the trial court's judgment in favor of E.E. Brandenberger when the court decided Reuille was not the prevailing party in the contract between him and Brandenberger and said the trial court erred in characterizing his motion for attorney fees as one for summary judgment.

Reuille and Brandenberger entered into a contract for the construction of a new home in Fort Wayne. After completion, Reuille experienced water leakage through the windows during and after it would rain. Brandenberger attempted to fix the problem several times, but water continued to leak into the house.

Reuille filed a complaint against the company for breach of warranty, breach of contract, and negligence. He also added the maker of the windows to his suit. The three parties came to a partial agreement in mediation, with the exception of whether Brandenberger is liable for Reuille's costs, including attorney fees. In the contract Reuille entered into with Brandenberger, the prevailing party of any action at law or in equity involving a claim of at least $5,000 was entitled to reasonable costs, including attorney fees.

The trial court denied Reuille's motion for costs and attorney fees, finding Reuille wasn't the prevailing party.

The Court of Appeals affirmed the trial court ruling, agreeing with Brandenberger's argument that with a private settlement only, Reuille is not a prevailing party as defined under Indiana law when the two entered into the contract or under current precedent. Even though the parties entered into a settlement agreement, Reuille didn't have a consent decree or an enforceable judgment entered along with the settlement agreement.

In terms of the trial court treating his motion for attorney fees as one for summary judgment, that was correct because there were no facts to dispute, so the hearing was for summary judgment, the Court of Appeals held.
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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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