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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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