ILNews

Court to decide on prevailing party issue

Jennifer Nelson
January 1, 2008
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The Indiana Supreme Court granted transfer Thursday to determine who would be considered the "prevailing party" when a settlement lacks a judicial resolution.

In Kirk Reuille v. E.E. Brandenberger Construction, Inc., No. 02A04-0704-CV-186, Reuille appealed the trial court's judgment in favor of E.E. Brandenberger when the court decided Reuille was not the prevailing party in the contract between him and Brandenberger and said the trial court erred in characterizing his motion for attorney fees as one for summary judgment.

Reuille and Brandenberger entered into a contract for the construction of a new home in Fort Wayne. After completion, Reuille experienced water leakage through the windows during and after it would rain. Brandenberger attempted to fix the problem several times, but water continued to leak into the house.

Reuille filed a complaint against the company for breach of warranty, breach of contract, and negligence. He also added the maker of the windows to his suit. The three parties came to a partial agreement in mediation, with the exception of whether Brandenberger is liable for Reuille's costs, including attorney fees. In the contract Reuille entered into with Brandenberger, the prevailing party of any action at law or in equity involving a claim of at least $5,000 was entitled to reasonable costs, including attorney fees.

The trial court denied Reuille's motion for costs and attorney fees, finding Reuille wasn't the prevailing party.

The Court of Appeals affirmed the trial court ruling, agreeing with Brandenberger's argument that with a private settlement only, Reuille is not a prevailing party as defined under Indiana law when the two entered into the contract or under current precedent. Even though the parties entered into a settlement agreement, Reuille didn't have a consent decree or an enforceable judgment entered along with the settlement agreement.

In terms of the trial court treating his motion for attorney fees as one for summary judgment, that was correct because there were no facts to dispute, so the hearing was for summary judgment, the Court of Appeals held.
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  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!!!

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