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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. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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