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Panel disagrees as to when woman failed to mitigate damages

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By a vote of 2-1, the Indiana Court of Appeals Friday reduced nearly $94,000 in damages to just $117 after finding the seller of a condo failed to mitigate her damages after the buyers backed out of the sale over repairs. Judge Cale Bradford believed seller Gayle Fischer was entitled to the original damages award.

Michael and Noel Heymann entered into a purchase agreement to buy an Indianapolis condo from Fischer for $315,000. An inspection of the property revealed several outlets did not have power and a light did not work properly. The Heymanns believed this constituted a “major defect” as defined in their agreement that allowed them to demand Fischer to fix the issues or walk away from the deal.

The Heymanns informed Fischer of the problems Feb. 10, 2006. She asked for an extension to agree to fix the issues, but the Heymanns on Feb. 15 said she had only until Feb. 18 to respond. Fischer never responded, so the Heymanns sought to buy another condo. Fischer’s electrician did resolve the issues, which cost $117 to fix.

This case has already gone before the Court of Appeals once, and the judges found the Heymanns attempted termination of the purchase agreement was ineffective and that Fischer was owed damages. In this appeal, the issue is when Fischer failed to mitigate her damages. The Heymanns claimed that she is only entitled to the $117; Fischer wants actual and consequential damages of more than $286,000.

In Gayle Fischer v. Michael and Noel Heymann, 49A02-1204-PL-340, Judges Edward Najam and Ezra Friedlander held that the trial court findings don’t support the original $94,000 award. The evidence shows that after the Heymanns breached the purchase agreement, Fischer could have easily mitigated her damages by indicating she would make the minor electrical repairs. They ruled that whatever additional damages she may have incurred through 2007 or 2011 were caused by her own failure to mitigate in 2006. They ordered that she receive just $117, plus attorney fees commensurate with her recovery and costs.

Judge Cale Bradford believed that had Fischer assented to the inspection report response, she would have been required to make the minor repairs, but that would have been in performance of the purchase agreement, not in mitigation of damages. The contract didn’t require her to fix minor defects in the home. Instead, she failed to mitigate her damages in February 2007 when she did not accept a $240,000 offer on the condo from another buyer.

As such, she would be entitled to the nearly $94,000, which includes $75,000 in damages, more than $15,000 in carrying costs and nearly $4,000 in attorney fees, Bradford concluded.

 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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