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COA rules on Kroger fuel sign dispute

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The Indiana Court of Appeals reversed summary judgment for a developer on its claims of criminal mischief, criminal trespass and criminal conversion against grocer Kroger after the store modified a shopping plaza’s sign once it added a fueling station. There isn’t evidence that Kroger had criminal intent when it modified the sign pylon.

Kroger and developer Metro Acquisitions entered into a reciprocal easement agreement and later amendment involving a shopping center in Indianapolis. Part of the agreement addressed a sign advertising Kroger and other shops on Parcel I. The sign pylon was later moved to Parcel IV. Kroger was responsible for keeping up the sign and the other shops would pay Kroger for the maintenance.

When Kroger installed a fuel station on its property, it modified the sign by removing a portion of it to advertise for the fuel and left the other businesses’ sign panels without lighting and electricity. WC Associates, as successor in interest to Metro, paid nearly $50,000 to restore the original sign pylon.

WC sued Kroger for breach of contract, theft, criminal conversion, criminal trespass and mischief. WC filed for summary judgment; it later claimed that Kroger had submitted false affidavits. The trial judge ruled in favor of WC and awarded a total of $143,440.88 to WC.

In The Kroger Co. v. WC Associates, LLC, as successor in interest to Metro Acquisitions, LLC, No. 49A05-1108-PL-412, the COA affirmed the finding of breach of contract against Kroger. Under the agreement and amendment, WC owned the sign and the amendment and agreement detailed what Kroger had to do to maintain the sign, which did not include allowing Kroger to modify the sign pylon or attach multiple sign panels to it.

The judges reversed summary judgment on the criminal trespass, criminal mischief and criminal conversion claims because there was no evidence of criminal intent on Kroger’s part. That will be up to a jury to decide.

The trial court properly awarded sanctions against Kroger for its affidavits and WC is entitled to appellate attorney fees only with regards to the breach of contract claim, the COA held. The judges remanded for further proceedings.

 

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  1. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

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