MacKiewicz v. Metzger

SULLIVAN, Judge,

concurring

I fully concur in the majority opinion which affirms the summary judgment entered in favor of William Metzger, Lost Lakes, Inc., and Lake Group, Inc. as well as in favor of the Warrick County Area Plan Commission. In doing so, however, I believe it important to point out that summary judgment was not entered in favor of Wileoin, Inc., the original developer and the entity which sold Lot 15A to Mackiew-icz. As related to this sale, Mackiewiez was afforded access to "[alll lakes common to the boundary of Paradise Lakes...."1 Supplemental Record at 148.

*824To this extent, therefore, I must necessarily conclude that Mackiewicz’s claim for monetary damages against Wilcoin, Inc. under Count VI of the complaint remains viable and the matters in issue as to that litigation are as yet unresolved.

In this sense, therefore, I am unable to wholly agree with the majority’s conclusion that “[t]o the extent that Mackiewicz was thereby ‘wronged,’ it was primarily a result of his failure to ensure, when he purchased tract 15A, that he had obtained such an enforceable right.” Op. at 821. Although one might reasonably argue that Mackiewicz did not do everything within his power to protect his interests, it might also be true that Wilcoin, Inc. incurred liability for its failure to protect his access to all lake areas.

Subject to this caveat, I concur.

. All the real estate contemplated to be developed in the area of the connected stripper pit lakes was referred to as "Paradise Lakes."