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Kohl’s loses appeal vs. developer, county over Evansville store

November 16, 2012

A department store chain failed to persuade the Indiana Court of Appeals to reverse a trial court’s dismissal of a lawsuit it filed against a developer and two public Vanderburgh County entities.

An appellate panel found no error in Vanderburgh Circuit Judge Carl Heldt’s grant of summary judgment in favor of the Evansville-Vanderburgh County Area Plan Commission and the Board of Commissioners of Vanderburgh County. Both of those bodies were named as defendants in Kohl's Indiana, L.P. and Kohl's Dept. Store, Inc. v. Dennis Owens, et al., 82A05-1203-PL-103.

The suit arose after developer Dennis Owens failed to complete a project to build a store and associated infrastructure at the Carpentier Creek Pavilion Subdivision on the west side of Evansville. Kohl’s completed the project and in 2006 brought suit against multiple defendants including Owens, the public entities and financial institutions.

In affirming the trial court, the COA held that neither public body accepted a common obligation to complete the project and that Kohl’s cannot recover on a theory implied in law because a contract with the Board of Commissioners required Kohl’s to complete public infrastructure improvements at its expense.

Kohl’s failed to prevail on theories of contribution or unjust enrichment.

“While we ultimately find no merit to any of Kohl’s arguments, we do not find that its appeal is permeated with meritlessness or any of the other factors that would warrant an award of appellate attorney’s fees. We therefore deny the Board of Commissioners’ request for appellate attorney’s fees,” Judge Nancy Vaidik wrote for the unanimous panel.
 


 


 

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