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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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