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Lack of transcript limits review of fire damages award on appeal

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A panel of the Indiana Court of Appeals rejected an appeal seeking full compensation after an Allen County fire in large part because the appealing party included no transcript of the trial court proceedings.

A jury found that a company breached its contract to insulate a building after a worker dropped a portable light onto the attic floor and installed insulation over the fixture, resulting in the fire. The jury then used the Indiana Comparative Fault Act to determine the contractor was 55 percent to blame and the building owner 45 percent. The building owner was awarded $154,144.65 of the total damages of $280,263.

In Lifeline Youth & Family Services v. Installed Building Products, Inc. d/b/a Momper Insulation, 02A03-1211-CT-502, Lifeline won the breach of contract ruling but appealed a trial court denial of its motion to correct error, arguing it should have been awarded the full amount of damages. Lifeline claims the jury erroneously applied comparative fault to its breach of contract claim.

“Momper argues that Lifeline has waived any challenge to the jury’s award of damages because Lifeline ‘did not object to the [damages] verdict before the jury was dismissed,’” Judge Rudy Pyle III wrote for the panel that also included judges Michael Barnes and James Kirsch.

“Lifeline responds to Momper’s argument by chastising Momper for stating that Lifeline did not object to the jury’s damages verdict without citing to the Transcript or Appendix. Nevertheless, Lifeline then does the same thing and asserts — without citation to the record — that it objected to the damages verdict ‘[u]pon completion of the trial’ and made an ‘oral motion’ asking the trial court to increase the damages award to $280,263.00,” Pyle wrote.

Failure to include the transcript in this case contravened Indiana Appellate Rule 9(F)(5), the panel noted.

“Our Indiana Supreme Court has addressed an appellant’s failure to include a transcript on appeal when factual issues are presented and held that ‘[a]lthough not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence,’” the panel ruled.

“Because Lifeline relies on the evidence presented during the jury trial in support of its argument challenging the amount of the jury’s damages verdict, we must conclude that Lifeline has waived any such damages argument and has failed to prove that the trial court abused its discretion by denying its motion to correct error,” Pyle wrote.



 
 

 

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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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