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Thursday, September 06, 2007

Ind. Decisions - Court of Appeals issues 1 today (and 1 NFP)

For publication opinions today (1):

In Kirk Reuille v. E.E. Brandenberger Construction, Inc., a 13-page opinion, Judge Sharpnack writes:

Kirk Reuille appeals the trial court’s judgment in favor of E.E. Brandenberger Construction, Inc. (“Brandenberger”). Reuille presents two issues on appeal, which we restate as: I. Whether the trial court erred in interpreting the phrase “prevailing party” in the contract between Brandenberger and Reuille; and II. Whether the trial court erred when it characterized Reuille’s motion for attorney fees as one for summary judgment. We affirm.

The relevant facts follow. In February 1997, Reuille and Brandenberger entered into an agreement for the construction of a new home in Fort Wayne, Indiana. In the construction contract, a section entitled “Costs and Attorney fees” provided: “In any action at law or in equity, including enforcement of an award from Dispute Resolution, or in any Dispute Resolution involving a claim of five thousand dollars or more, the prevailing party shall be entitled to reasonable costs and expenses, including attorney fees.” * * *

Thus, even under current precedent, Reuille does not qualify as a prevailing party because, although the parties entered into a settlement agreement, Reuille had neither a consent decree nor an enforceable judgment entered along with his settlement agreement. Unlike the court in Daffron, where the court entered a consent judgment after the settlement, Reuille had nothing but a private settlement agreement. As a result, the trial court was correct in its judgment that Reuille was not a prevailing party. Cf. D.S.I., 742 N.E.2d at 25 (holding that settlement agreement, along with an injunction, was sufficient judicial intervention to entitle plaintiff to prevailing party status).

NFP civil opinions today (0):

NFP criminal opinions today (1):

Charles Duff v. State of Indiana (NFP)

Posted by Marcia Oddi on September 6, 2007 02:00 PM
Posted to Ind. App.Ct. Decisions