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Ex-business partner might not get damages for unreturned pizza oven

July 9, 2014

Because a county clerk did not apparently send out notice of a court order requiring a man to return a pizza oven to his partner in a bar, the Indiana Court of Appeals reversed the denial by the lower court of the man’s motion challenging a damages award stemming from his failure to return the oven.

Salvino Verta does not challenge the January 2013 order that required him to return the pizza oven to Salvino Pucci, but he does challenge the $114,000 in damages – $100 for every day Verta delayed in returning the oven that the court ordered him to pay in June. Verta claimed he never received notice of the January 2013 order or the April 2013 scheduling  order for the June hearing, and the chronological case summary entries on the matter don’t indicate that the clerk mailed notice.  Verta returned the pizza oven June 4, 2013.

Verta filed a motion to reconsider, correct error and motion from relief from judgment, seeking relief from the June order. He claimed had he received the orders he would have complied in all respects and appeared before the court. The trial court denied his motion to correct error.

Because the CCS does not contain any notation to indicate that the clerk had served the April 2013 scheduling order or the January 2013 order on Verta, the trial court abused its discretion by denying his motion seeking relief from the June 2013 order, the COA held in Salvino Verta, et al. v. Salvino Pucci, 45A03-1309-PL-387. They ordered the lower court to hold a hearing to further determine what, if any, monetary damages should be awarded given the CCS’s lack of an entry to indicate notice was sent to Verta on the January 2013 order.

“While Verta might have been able to assume that the trial court would set a hearing on Pucci’s motion, the clerk had a duty to serve Verta with a copy of the scheduling order and to memorialize such action on the CCS,” Judge Rudolph Pyle III wrote.
 

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