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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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