Nelson v. Marchand

34 Citing cases

  1. Citizens Ins. Co. of Am. v. Johns Manville

    No. 1:11-cv-01263-SEB-TAB (S.D. Ind. Apr. 9, 2013)   Cited 1 times

    Johns Manville clearly disputes that the loss at issue here is covered by the terms of the Guarantee and has presented evidence sufficient to create a genuine issue of material fact as to the cause of the damage to the Flagship Enterprise Center's roof. Based on the testimony and opinions of Mr. Patterson and Mr. Stutzman, a reasonable jury could conclude from the evidence that the roof failure was the result of deficiencies not covered under the Guarantee, such as failures in the design of the building or failures of non-Johns Manville components of the roof, as opposed to being caused by the improper installation of one of Johns Manville's approved installers. Citizens argues that under Indiana law in a breach of guarantee case, the plaintiff need not prove why the guaranteed product failed, only that it did fail. Pl.'s Br. at 9 (citing Nelson v. Marchand, 691 N.E.2d 1264 (Ind. Ct. App. 1998); Orto v. Jackson, 413 N.E.2d 273 (Ind. Ct. App. 1980)). Despite the fact that these cases are decided under Indiana rather than Colorado law, which makes them inapplicable as precedent, the cases cited by Citizens are in any event distinguishable from the case at bar.

  2. Martin v. Thor Motor Coach Inc.

    602 F. Supp. 3d 1087 (N.D. Ind. 2022)   Cited 11 times

    A warranty is a promise, usually collateral to the principal contract, although not necessarily so." Zawistoski v. Gene B. Glick Co. , 727 N.E.2d 790, 792 (Ind. Ct. App. 2000) (quoting Nelson v. Marchand , 691 N.E.2d 1264, 1271 n.8 (Ind. Ct. App. 1998) ); accordJohnson v. Scandia Assocs., Inc. , 717 N.E.2d 24, 28 (Ind. 1999) ("A warranty is a promise relating to past or existing fact that incorporates a commitment by the promisor that he will be responsible if the facts are not as manifested.")

  3. Metzger v. Metzger

    No. 43A03-1101-DR-18 (Ind. App. Nov. 29, 2011)

    Our standard of review in such situations is well settled: When a trial court enters special findings and conclusions sua sponte, the specific findings and conclusions control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. Nelson v. Marchand, 691 N.E.2d 1264, 1267 (Ind. Ct. App. 1998). On appeal, we review the trial court's specific findings and conclusions under a two-tiered standard of review.

  4. Argonaut Ins. Co. v. Jones

    953 N.E.2d 608 (Ind. Ct. App. 2011)   Cited 34 times
    Placing police vehicle in the lane of highway, leaving the engine running, and activating the emergency lights on her vehicle to redirect traffic was using vehicle “for one of its intended purposes”

    Upon appellate review, a judgment under Trial Rule 52 may be reversed only when clearly erroneous, that is, "when the judgment is unsupported by the findings of fact and conclusions entered on the findings." Nelson v. Marchand, 691 N.E.2d 1264, 1267 (Ind.Ct.App. 1998). Findings are clearly erroneous when there is no evidence or reasonable inference from the evidence to support the findings, and we review only the evidence and reasonable inferences therefrom that are favorable to the judgment without reweighing evidence or reassessing the credibility of witnesses.

  5. Argonaut Ins. Co. v. Jones

    953 N.E.2d 608 (Ind. App. 2011)   Cited 2 times

    Upon appellate review, a judgment under Trial Rule 52 may be reversed only when clearly erroneous, that is, “when the judgment is unsupported by the findings of fact and conclusions entered on the findings.” Nelson v. Marchand, 691 N.E.2d 1264, 1267 (Ind.Ct.App.1998). Findings are clearly erroneous when there is no evidence or reasonable inference from the evidence to support the findings, and we review only the evidence and reasonable inferences therefrom that are favorable to the judgment without reweighing evidence or reassessing the credibility of witnesses.

  6. Tew v. Tew

    924 N.E.2d 1262 (Ind. Ct. App. 2010)   Cited 12 times
    Holding that eight-month gap in attending classes between high school and college did not satisfy requirements of subsection where child was in fact enrolled in high school for several of those months

    See Pham v. Pham, 650 N.E.2d 1212, 1214 (Ind.Ct.App. 1995) (providing that when a trial court makes special findings on its own motion rather than a motion by one of the parties, such findings are issued sua sponte). When a trial court enters special findings and conclusions sua sponte, the specific findings and conclusions control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. Nelson v. Marchand, 691 N.E.2d 1264, 1267 (Ind.Ct.App. 1998). On appeal, we review the trial court's specific findings and conclusions under a two-tiered standard of review.

  7. Carroll v. BMW of N. Am., LLC

    No. 1:19-cv-00224-JMS-TAB (S.D. Ind. May. 9, 2019)   Cited 4 times

    A warranty is a promise, usually collateral to the principal contract, although not necessarily so." Id. at 792 (quoting Nelson v. Marchand, 691 N.E.2d 1264, 1271 n. 8 (Ind. Ct. App. 1998)); see alsoM.E.M. Ventures, LLC v. White Grp., Inc., 2019 WL 1242915, at *4 (N.D. Ind. Mar. 18, 2019) (holding that a plaintiff's "breach of contract claims, as distinct from any breach of warranty claims, are time-barred").

  8. Sam's NA, Inc. v. U.S. Small Bus. Admin. (In re Sam's NA, Inc.)

    Case No. 13-90259-BHL-11 (Bankr. S.D. Ind. Oct. 19, 2016)

    The Court notes that breach of warranty and breach of contract are distinct claims that can exist independently. Nelson v. Marchand, 691 N.E.2d 1264, 1271 (Ind. Ct. App. 1998). As the court in Nelson explained: "Although closely related, the two actions are not identical. A warranty is a promise, usually collateral to the principal contract, although not necessarily so.

  9. In re Consolidated Industries Corp.

    330 B.R. 227 (Bankr. N.D. Ind. 2001)   Cited 2 times

    Otherwise, its damages will continue to accrue unabated. See, e.g., Nelson v. Marchand, 691 N.E.2d 1264, 1271 (Ind.App. 1998). Under these circumstances, Enodis was no longer required to perform its obligations under the agreement. See, e.g., Sallee, 714 N.E.2d at 762-63; Tomahawk Village Apartments, 571 N.E.2d at 1293 (citing Licocci v. Cardinal Assocs., Inc., 492 N.E.2d 48, 52 (Ind.App. 1986)).

  10. In re Bricker

    212 N.E.3d 712 (Ind. App. 2023)   Cited 2 times

    [4] Because the trial court did not make findings of fact and conclusions thereon, the trial court's order is a general judgment that "[w]e may affirm [...] on any theory supported by the evidence adduced at trial." Nelson v. Marchand , 691 N.E.2d 1264, 1267 (Ind. Ct. App. 1998). "A general judgment will be affirmed upon any legal theory consistent with the evidence, and the court of review neither reweighs the evidence nor rejudges the credibility of the witnesses.