ILNews

Order to demolish home reversed by Court of Appeals

Back to TopCommentsE-mailPrintBookmark and Share

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.  



 
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

ADVERTISEMENT