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Order to demolish home reversed by Court of Appeals

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A couple whose lakeside house was built at a different elevation than specified in the site development plan will not be able to call the wrecking crew yet.

Fishers residents Michael and Melody Bogan sued the developer of Lake Stonebridge subdivision and the homebuilder after their home’s lower level flooded twice. The site development plan called for the lower-level elevation of their home to be at 789 feet, but to accommodate a change the Bogans requested, the basement’s finished floor elevation was 788.04 feet.

After the trial court awarded the homeowners partial summary judgment against the homebuilder, Trinity Homes LLC, and the subdivision developers, Land Innovators L.P., and R.N. Thompson, the Bogans filed a motion requesting, in part, the court allow the home to be removed from the lot.

The trial court granted the motion but stayed the order pending appeal.

The Indiana Court of Appeals reversed in Land Innovators Company, L.P., R.N. Thompson, Trinity Homes, Inc. and Trinity Homes, LLC d/b/a Beazer Homes v. Michael L. Bogan and Melody A. Bogan, 29A05-1306-PL-308. The COA ruled the trial court’s decision was improper without the presentation of evidence.

On appeal, Land Innovators, Thompson and Trinity Homes argued other alternatives besides removal of the home are available to remedy the problem.  

“Whether the appellants’ contentions on this point are correct is a matter we need not address,” Judge Margret Robb wrote for the court. “However, we agree that the appellants should have the opportunity to present evidence regarding other potential remedies and that the trial court must make a proper determination that injunctive relief is appropriate in this case.”

The Court of Appeals affirmed the lower court’s grant of summary judgment to the Bogans on liability for negligence, negligence per se, breach of contract and breach of covenants against Trinity. The COA also upheld summary judgment to the Bogans for breach of covenants against Land Innovators and Thompson.  

In addition, the Court of Appeals affirmed the denial of Bogans’ claim of constructive fraud against Trinity and their claim of negligence against the developers. Finally, the COA affirmed the denial of the developers’ claim for indemnification.  



 
 

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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