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Transfer vacated in builder negligence suit

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The Indiana Supreme Court vacated transfer in an order dated March 4 to a case involving homeowners and companies that performed work on their house.

The suit, Lawrence and Judy Lynn Gunkel v. Renovations, Inc. by Wagler and Menno D. Wagler, et al., No. 76A03-0609-CV-407, had been addressed by the Indiana Court of Appeals and Supreme Court before the appeals court issued its opinion June 27, 2008.

The Gunkels hired Renovations to build their home. After construction began, they noticed water leaked into the home through doors and windows. Renovations claimed that once J & N installed the stone facade, the problem would be fixed. Water still entered and the couple had to hire a different contractor to fix the issue. They filed suit against Renovations for breach of contract and fraud.

In the June 2008 not-for-publication opinion, the appellate court affirmed the trial court properly denied the Gunkels' negligence claims and properly awarded prejudgment interest. It reversed the court's refusal to award the damages on the Gunkels' breach of contract claims and remanded for further consideration and that the trial court make proper findings with respect to its award of attorney fees to Renovations. The Court of Appeals ruled Renovations was entitled to appellate attorney fees and remanded for trial court to determine the proper amount.

The Supreme Court granted transfer January 15, 2009. After further review, and oral arguments, the justices unanimously agreed to vacate transfer.

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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