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Judges disagree over whether car ad implied drivability

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The Indiana Court of Appeals was divided on whether an Indianapolis car dealership was entitled to summary judgment on a buyer’s lawsuit that made Indiana Deceptive Consumer Sales Act, Crime Victims Relief Act, and fraud claims.

Heather Kesling purchased a 1996 Mitsubishi Eclipse from Hubler Nissan for a little more than $2,300. She saw an advertisement describing the car as a “Sporty Car at a Great Value Price.” She test drove the car and saw it was not idling correctly. She asked the salesman if anything was wrong with the car, and he said it probably just needed a tune up.

A little more than a year later, she filed her lawsuit. She had it inspected more than two years later. The inspector noted the car was covered in dust, only had 44 more miles on the odometer as compared to the sales order, and that the car had numerous problems that he believed should have been discovered by the dealer during an inspection. The inspector believed the car was unsafe to drive.

The trial court granted Hubler’s motion for summary judgment.

In Heather N. Kesling v. Hubler Nissan, Inc., 49A02-1111-CT-1031, Senior Judges John Sharpnack and Carr Darden found there to be a genuine issue of material fact as to whether Hubler made a representation in its advertisement that the car had performance, uses or benefits that it didn’t have and the dealer knew or should have known the car did not have those characteristics. The majority looked at the phrase “Sporty Car at a Great Value Price” and concluded a reasonable fact-finder could determine that Hubler implied the Eclipse was a good car for the price, and thus at a minimum, that it was safe to drive.

Judge Ezra Friedlander dissented, believing the advertisement did not run afoul of the Deceptive Consumer Sales Act and that the majority’s view is “simply unreasonable.” In his view, the phrase used conveys “virtually nothing” about the car to which it is attached and devoid of content relative to the car’s operating status.

The Court of Appeals also found issues of material fact on the fraud and Crime Victims Relief Act claims and remanded for further proceedings.

 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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