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Court affirms judgment for developer, real estate company in suit over sinking home

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A couple who sued a subdivision developer and real estate company after the builder went out of business to recover damages because their home was sinking could not convince the Indiana Court of Appeals to reverse summary judgment for the companies.

James and Gayle Corry’s home was built by Woodland Homes of Ft. Wayne, which has filed for bankruptcy and gone out of business. The Corrys purchased a lot from Woodland that it had obtained from Oakmont, the subdivision developer. Testing of the soil showed that the Corrys’ lot would require the home be built on pilings because the soil was unstable. The Corrys and their realtor, Steve Jahn, who was also president of Woodland, discussed the need for pilings, but Jahn told the couple that the house didn’t need pilings and they would “beef up” the concrete slab.

Almost immediately after moving into the home in 2002, the Corrys discovered structural problems. Jahn said the issues were cosmetic and corrected them, but in 2007, after learning that Woodland had gone bankrupt, the Corry’s sought to meet with Mike Thomas Associates, where Jahn had also worked. No solutions were agreed to, so later that year, the Corrys sued Jahn, Woodland, Oakmont and MTA for breach of contract, breach of fiduciary duty, breach of warranty, negligence and fraud. The trial court granted Oakmont and MTA’s motion for summary judgment on the claims.

The Court of Appeals held that Oakmont and MTA weren’t parties to the construction contract at issue, so summary judgment was appropriate on the breach of contract claim. There is no cause of action arising from belated provision of a limited agency disclosure form, so summary judgment was proper on the breach of fiduciary duty claim.

The trial court properly declined to impose an implied warranty of habitability on Oakmont and MTA where Woodland, as the builder, was the entity best positioned to prevent the home from sinking. The trial court also properly granted summary judgment on the negligence claim because the Corrys’ claim is for economic loss and they are relegated to recovery in contract as opposed to negligence law.

The designated materials show Oakmont and MTA didn’t make fraudulent misrepresentations to the Corrys, and Jahn did not act as an agent of Oakmont or MTA when representing that his building methodology was superior and would produce a long-standing product, the appellate court ruled. Thus summary judgment on the fraud claim was appropriate.

 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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