Friday, January 31, 2014
Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)
For publication opinions today (2):
In William E. Boehringer, Cleo A. Boehringer, and the Cleo A. Boehringer Trust v. Gregory J. Weber and Susan M. Weber, an 11-page opinion, Judge Bradford writes:
In 2006, Appellants-Plaintiffs-Counterclaim Defendants William and Cleo Boehringer and the Cleo A. Boehringer Trust (collectively, “the Boehringers”) purchased a house (“the House”) from Appellees-Defendants-Counterclaim Plaintiffs Gregory and Susan Weber (“the Webers”). Before the sale, the Webers indicated in a disclosure form that they had no knowledge of any hazardous conditions in the House. In 2007, the Boehringers discovered mold in the House, and in 2009 they filed a complaint against the Webers for fraudulently failing to disclose the presence of mold when they allegedly had actual knowledge of it. The Boehringers also sought rescission or compensatory damages on the basis of mutual mistake of fact. Finally, the Boehringers’ complaint asserted claims against Homes by John McKenzie; Beazer Homes Indiana, LLP; and Trinity Homes, LLC (“the Builder”). The Webers asserted a counterclaim for costs and attorney’s fees, a claim brought pursuant to the purchase agreement for the House, which specifically entitled the prevailing party in any litigation relating to that purchase agreement to recover such sums.In T.G. v. State of Indiana , an 11-page opinion, Judge Crone writes:
Both the Boehringers and Webers moved for summary judgment. The trial court denied the Boehringers’ summary judgment motion relating to their fraudulent misrepresentation and mutual mistake claims, and the case proceeded to trial. Following a jury trial, judgment was entered in favor of the Webers on the Boehringers’ claims, and the Webers were awarded $425,000.00 pursuant to their counterclaim. The trial court denied the Boehringers’ motion to correct error, and they now appeal. The Boehringers claim that the trial court erred in denying them summary judgment on their fraudulent misrepresentation claim and that, in the alternative, the evidence presented at trial cannot sustain the jury’s verdict against them. Concluding that the trial court did not err in denying the Boehringers’ summary judgment claim and that the evidence sustains the jury’s verdict, we affirm. * * *
Both the Howell and Schubert reports, which, as previously mentioned, did not contain any mention of mold in the House, were admitted at trial. In addition, William testified that no inspector ever told him that there was mold in the House, mold was not discussed during a February of 2007 walkthrough with the Builder, and mold was not discussed during the March of 2007 remediation. Finally, Susan testified that nobody ever told her that the House had a mold infestation prior to the sale. This evidence, which the jury was entitled to believe and apparently did, establishes that the Webers lacked actual knowledge of mold in the House when they executed the sales disclosure, even assuming, arguendo, that any existed at the time. The Boehringers’ argument in this regard is nothing more than an invitation to reweigh the evidence, which we will not do. The evidence presented at trial sustains that jury’s verdict.
1 The Boehringers do not challenge the amount of the award to the Webers. Of course, were we to rule in the Boehringers’ favor on the underlying claim, this award to the Webers would have to be reversed as well.
T.G., a minor, appeals from his adjudication as a juvenile delinquent based on the trial court’s finding that he committed an act that would be class C felony child molesting if committed by an adult. On appeal, he argues that the evidence is insufficient to support the trial court’s finding and that the child molesting statute is unconstitutionally vague as applied to him. Concluding that the evidence is sufficient and that the statute is not unconstitutionally vague, we affirm.NFP civil opinions today (3):
NFP criminal opinions today (14):
Posted by Marcia Oddi on January 31, 2014 12:36 PM
Posted to Ind. App.Ct. Decisions