Winning plaintiff agrees prejudgment interest award not warranted

July 22, 2015

A real estate investor who was successful in her protracted feud with her real estate broker acknowledged an error in the calculation of her award and induced the Indiana Court of Appeals to make a reversal.

Sheree Demming filed suit against Cheryl Underwood, claiming breach of fiduciary duty and constructive fraud. Demming worked with Underwood for several years to try to acquire a pair of properties in Bloomington, but when the property owner asked for an offer, Underwood and her business partner, Kenneth Kinney, tendered their own offer and bought land.

The Monroe Circuit Court originally granted summary judgment in favor of Underwood and Kinney on all claims. However, after the Court of Appeals reversed and remanded, a trial was held and judgment was entered for Demming. The trial court awarded her damages, prejudgment interest and attorney fees.

Underwood appealed and the feud returned to the appellate court.

The Court of Appeals affirmed the trial court imposing a constructive trust in Demming’s favor on the property based, in part, on Underwood’s breach of common law, statutory and fiduciary duties, and fraudulent and deceptive conduct. It also found the trial court did not abuse its discretion by denying Kinney’s motion for judgment on the pleadings on the ground that he did not have adequate notice there was a claim against him for money damages.   

In addition, the Court of Appeals affirmed the award of damages and attorney fees but it reversed the award of $10,503.26 prejudgment interest.

Underwood argued the awarding of the interest was an error because Demming did not make a qualified settlement offer. Demming conceded prejudgment interest was not warranted and asked the Court of Appeals to remove the interest and reduce the total judgment to $144,357.38.  

The Court of Appeals remanded so the trial court may recalculate the damages to exclude prejudgment interest in Thomas Bunger as Personal Representative of the Estate of Kenneth K. Kinney and Cheryl Underwood v. Sheree Demming, 53A01-1409-PL-395.





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