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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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