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Judges rule on breach of contract lawsuit

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The City of Jeffersonville breached its contract with a company hired to maintain its sewer system by not adequately providing written notice before ending the contract.

Environmental Management Corporation filed an action against the City of Jeffersonville and its Sanitary Sewer Board alleging Jeffersonville breached its contract with EMC, violated Indiana’s Open Door Law, and acted in contempt of an agreed entry and order.

Based on the parties’ contract, written notice had to be given to the other party 90 days before terminating the contract, to allow the party to cure its performance. There were issues after EMC began operating the city’s sewer system, and a letter was sent by the city attorney to EMC asking for specific information, but it never detailed that the city would terminate the contract if problems were not rectified within 90 days. That letter, and one sent in August that said the city was terminating the contract, were authorized during an executive session of the sewer board held before the open board meeting. The city took over operations of the plant in December 2008.

EMC filed its suit, in which the judge ruled in favor of EMC, awarded damages to EMC, and ordered the city to pay attorney fees and costs.

In City of Jeffersonville, Indiana and City of Jeffersonville Sanitary Sewer Board v. Environmental Management Corporation, No. 10A01-1005-PL-217, the Court of Appeals agreed that the city did not provide sufficient written notice to EMC 90 days before terminating the contract. The city’s verbal comments at a regular sewer board meeting held prior to the first letter being sent do not count because they were oral and never recorded in the board’s minutes. In addition, the letter didn’t allege inadequate performance as required by the terms of the contract.

The judges reversed summary judgment for EMC regarding its Open Door Law claims, finding EMC waived those claims. EMC had a 30-day time limit to file its complaints, which it did not do. The time period begins when the plaintiff “knew or should have known” about the act or failure to act that had occurred. EMC had representatives attending every sewer board meeting, so it should have known under the principles of common knowledge and experience, that the two letters weren’t authorized at a public meeting, wrote Judge Patricia Riley. The two complaints filed regarding these letters were filed more than 30 days after the point when EMC should have known about a violation.

The trial court based its award of attorney fees in part on the Open Door Law violations, so the judges remanded for the trial court to recalculate those fees as well as only order the city to pay EMC costs related to filing fees and statutory witness fees.

The judges affirmed the finding the city was in contempt of an agreed entry between the parties to not interfere with EMC’s access to the sewer facilities while a preliminary injunction hearing was pending. The appellate court also affirmed the trial court’s decision to reduce EMC’s corporate support expenses from its losses during calculation of EMC’s damages.

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  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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