forfeiture clause in Indiana

1980The court did cite with approval the following language found at 6 A.L.R.2d 1405 (1949): On the other hand, if the amount of the payments received by the vendor at the time the purchase was abandoned represents but a small percentage of the total purchase price, and if the purchaser’s breach occurred soon after the execution of the agreement . . . , the courts tend to hold that the forfeiture clause was one for liquidated damages . . . (emphasis added) Skendzel, supra, 261 Ind. at 233 , 301 N.E.2d 645 .

1976Furthermore, the Butchers were forbidden from exercising the forfeiture clause because of the mandates of Skendzel v. Marshall (1973), 261 Ind. 226 , 301 N.E.2d 641 , which recognized that under certain circumstances a vendor’s interest under a contract to sell land must be treated as analogous to that of a mortgagee, hence, relegating him to the remedy of foreclosure as provided for by Ind. Rules of Procedure, Trial Rule 69(C). *106 *105 We should note at the outset that the trial court made general findings of fact pursuant to TR. 52(A).

2026See United States v. Carson, 455 F.3d 336, 362 (D.C.

2020See Davis, 547 U.S. at 833 (declining to take a position on the burden of proving forfeiture but noting federal courts have held the government to the preponderance of the evidence standard). [13] Here, the trial court held a forfeiture hearing prior to trial to hear evidence to determine whether Cook’s statements could be admitted into evidence at trial through the testimony of law enforcement as a result of Scott’s wrongdoing.

2017See Gilmore v. State, 953 N.E.2d 583 (Ind. Ct. App. 2011) (concluding that Gilmore’s conduct, which caused five different court-appointed attorneys to withdraw from representing him and delayed his trial for approximately four years “was not of the kind often associated with a finding of forfeiture of the right to counsel”); U.S. v. McLeod, 53 F.3d 322, 326 (11th Cir. 1995) (“[U]nder certain circumstances, a defendant .who is abusive toward his attorney may forfeit his right to counsel.”).

2017See Gilmore v. State, 953 N.E.2d 583 (Ind. Ct. App. 2011) (concluding that Gilmore’s conduct, which caused five different court-appointed attorneys to withdraw from representing him and delayed his trial for approximately four years “was not of the kind often associated with a finding of forfeiture of the right to counsel”); U.S. v. McLeod, 53 F.3d 322, 326 (11th Cir. 1995) (“[U]nder certain circumstances, a defendant .who is abusive toward his attorney may forfeit his right to counsel.”).

2015Importantly, in Giles v. California, 128 S.Ct 2678, 2684 (2008), the United States Supreme Court concluded that the common-law doctrine of forfeiture by Court of Appeals of Indiana | Memorandum Decision 64A03-1503-CR-109 | December 31, 2015 Page 7 of 16 wrongdoing only applies when the defendant procured the witness’s unavailability by conduct “designed to prevent a witness from testifying.” [19] Indiana Evidence Rule 804(b)(5) likewise provides that the “forfeiture by wrongdoing” hearsay exception, permits a “statement offered against a party that has engaged in or encouraged wrongdoing that

2015Importantly, in Giles v. California, 128 S.Ct 2678, 2684 (2008), the United States Supreme Court concluded that the common-law doctrine of forfeiture by Court of Appeals of Indiana | Memorandum Decision 64A03-1503-CR-109 | December 31, 2015 Page 7 of 16 wrongdoing only applies when the defendant procured the witness’s unavailability by conduct “designed to prevent a witness from testifying.” [19] Indiana Evidence Rule 804(b)(5) likewise provides that the “forfeiture by wrongdoing” hearsay exception, permits a “statement offered against a party that has engaged in or encouraged wrongdoing that

2012See Licocci v. Cardinal Assoc., Inc., 492 N.E.2d 48, 52 (Ind. Ct. App. 1986) (“A party first guilty of a material breach of contract may not maintain an action against the other party or seek to enforce the contract against the other party should that party subsequently breach the contract.”), trans. denied; see also Steve Silveus Ins., Inc. v. Goshert, 873 N.E.2d 165, 176 (Ind. Ct. App. 2007) (noting that it is undisputed that the first party to materially breach an employment agreement cannot subsequently enforce a covenant not to compete in that same agreement). 20 Affirmed.

2012See Licocci v. Cardinal Assoc., Inc., 492 N.E.2d 48, 52 (Ind. Ct. App. 1986) (“A party first guilty of a material breach of contract may not maintain an action against the other party or seek to enforce the contract against the other party should that party subsequently breach the contract.”), trans. denied; see also Steve Silveus Ins., Inc. v. Goshert, 873 N.E.2d 165, 176 (Ind. Ct. App. 2007) (noting that it is undisputed that the first party to materially breach an employment agreement cannot subsequently enforce a covenant not to compete in that same agreement). 20 Affirmed.

2012Kruse I, 932 N.E.2d at 767, 769 .

2004See, eg., Skendzel v. Marshall, 261 Ind. 226 , 301 N.E.2d 641, 643 (1973) ("if any default shall be made in the payment of said purchase price ... all moneys and payments previously paid shall, at the option of the Vendor without notice or demand, be and become forfeited and be taken and retained by the Vendor as liquidated damages"), cert. denied, 415 U.S. 921 , 94 S.Ct. 1421 , 39 L.Ed.2d 476 (1974).

2004See, eg., Skendzel v. Marshall, 261 Ind. 226 , 301 N.E.2d 641, 643 (1973) ("if any default shall be made in the payment of said purchase price ... all moneys and payments previously paid shall, at the option of the Vendor without notice or demand, be and become forfeited and be taken and retained by the Vendor as liquidated damages"), cert. denied, 415 U.S. 921 , 94 S.Ct. 1421 , 39 L.Ed.2d 476 (1974).

2004See, eg., Skendzel v. Marshall, 261 Ind. 226 , 301 N.E.2d 641, 643 (1973) ("if any default shall be made in the payment of said purchase price ... all moneys and payments previously paid shall, at the option of the Vendor without notice or demand, be and become forfeited and be taken and retained by the Vendor as liquidated damages"), cert. denied, 415 U.S. 921 , 94 S.Ct. 1421 , 39 L.Ed.2d 476 (1974).

1900See Hosford v. Johnson, 74 Ind. 479 .