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Majority affirms trial court in failed lease suit

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The majority on the Indiana Court of Appeals affirmed the trial court’s ruling in favor of a leasing company on a suit brought by the homeowners after the lessees failed to pay their rent.

Robert and Judy Geller entered into a contract with A.M. Rentals Inc. to lease their home in Westfield. The Gellers admitted that they didn’t read the agreement before accepting a lease agreement with Kurt and Holly Kinney. The A.M. representative Decarius Spells found the Kinneys and spoke to the Gellers over the phone about them. Spells said the Kinneys did have a bankruptcy filing on their credit history but have since been “clear.” Spells did not tell the Gellers that a high-fraud alert was on the Kinneys’ credit report nor did the Gellers see a copy of the report.

The Kinneys signed a three-year lease with a monthly rent of $2,495. After only a few months, the Kinneys stopped paying and owed $74,850 under the terms of the lease. The Gellers sued the Kinneys and A.M. The trial court concluded the Kinneys were only liable for unpaid rent until the Gellers sold their home. The trial court also ruled in favor of A.M. based on the plain language of the lease and management agreement between the Gellers and A.M. that A.M. breached the lease agreement and that A.M. was not liable to the Gellers by virtue of the parties’ exculpatory clause so it didn’t breach its duties under I.C. 25-34.1-10 in investigating tenants and recommending the Kinneys.  

In Robert Geller and Judy Geller v. Kurt P. Kinney, Holly Kinney, and A.M. Rentals, Inc., 29A02-1111-PL-1202, Judges Edward Najam and Melissa May affirmed the trial court. They found the exculpatory clause of the agreement exempts A.M. from liability for its failure to perform duties to the Gellers under I.C. 25-34.1-10-10(a)(3)(C). The majority also held that applying the exculpatory clause to the facts of this case isn’t contrary to public policy and that the conclusion that the Gellers’ sale of their home mitigated the Kinneys’ damages to the Gellers isn’t erroneous.

In his dissent, Judge James Kirsch believed the trial court erred in placing the burden on the Gellers to prove that Spells had committed an act that was exculpated by the contract and in interpreting the exculpatory clause to require the commission of an intentional act by an agent to establish liability.

“I also believe that the clause as interpreted by the trial court vitiates the contract, contravenes Indiana law and is unconscionable,” he wrote. He would remand with instructions to enter judgment for the Gellers for all losses incurred as a result of A.M.’s failure to perform its statutory duties to disclose to the Gellers the adverse facts known by Spells and to exercise reasonable care and skill in this transaction.
 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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