Couple not entitled to attorney fees under Crime Victims Relief Act

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has affirmed that a Lake County couple who won a fraudulent misrepresentation judgment against the previous owners of the couple’s home are not entitled to certain fees under the Indiana Crime Victims Relief Act.

Joseph and M. Carmen Wysocki sued Barbara and William Johnson, individually and as trustees of the Barbara A. Johnson Living Trust, after discovering electrical and structural issues in their home shortly after purchasing it from the trust in 2006. An inspection report did not reveal the issues, and the Johnsons signed a real estate disclosure form that said there were no such issues with the house.

The case wound its way through the court system, making it to the Indiana Supreme Court, which remanded the case to reevaluate the Wysockis’ fraudulent misrepresentation claim, which was premised upon the allegation that the Johnsons made false statements on the disclosure form. The Indiana Court of Appeals had ruled the Wysockis failed to show that the Johnsons had actual knowledge of the defects and reversed judgment in favor of the Wysockis.

On remand, the trial court ruled in favor of the Wysockis but denied their request for attorney and expert fees under the CVRA, leading to this appeal in Joseph and M. Carmen Wysocki v. Barbara A. and William T. Johnson, both individually and as Trustees of the Barbara A. Johnson Living Trust, 45A03-1309-CT-385.

The Wysockis essentially want the Court of Appeals to create a bright-line rule that the CVRA is applicable in instances where a seller is held liable for false or incomplete statements in their disclosure forms. Focusing on just attorney fees, the Court of Appeals affirmed the trial court, noting its conclusion applies with equal force to other fees recoverable under the CVRA.

Judge Ezra Friedlander pointed out the elements of common-law fraud and the criminal offense of fraud are different, so it cannot be said that authorization of attorney fees in the CVRA for victims of criminal offenses that can be categorized as fraud extends to the common-law tort of fraud.”

“Simply put, in its current form, the CVRA authorizes certain fees only for victims of certain, specific criminal offenses, as well as for liability arising under I.C. § 24-4.6-5 et seq., which does not apply here. The Wysockis were not victims of the criminal offense of fraud because the Johnsons were not charged with that crime in relation to the sale of the house, much less convicted of it in a court of law. In the absence of such a conviction, the CVRA does not apply.”



Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?