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Court divided on purchase agreement termination

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The judges on the Indiana Court of Appeals were split in deciding whether the seller of a condominium should have to refund a deposit to purchase after the buyers discovered electrical problems that turned out to be minor issues.

In Gayle Fischer v. Michael and Noel Heymann/ Michael and Noel Heymann v. Caryn J. Craig, et al., No. 49A04-1004-PL-231, Gayle Fischer appealed the judgment ordering she reimburse the earnest money deposit of Michael and Noel Heymann and pay their litigation costs and attorneys fees after the couple backed out of an agreement to purchase Fischer’s condominium. The Heymanns entered into a purchase agreement and paid $5,000 in earnest money, and as a condition of the agreement they had the home inspected. The purchase agreement allowed for them to terminate the agreement if the inspection revealed a major defect and the seller is unable or unwilling to remedy the defect before closing.

The Heymanns’ inspector listed as a major concern on his report that there was no power to the outlets in two bathrooms and an outlet on a balcony. The Heymanns agreed to give Fischer until Feb. 18, 2006, to resolve the issue. On Feb. 17, they put an offer on a different unit, and on Feb. 19, they executed a document for release from Fischer’s unit. On Feb. 20, Fischer’s electrician fixed the problems by pushing a GFI reset button and replacing a light bulb.

Fischer then sued the Heymanns for specific performance of the purchase agreement or for reimbursement of maintenance expenses along with the difference between the agreed upon price and the present fair market value and attorneys fees and costs.

Chief Judge Margret Robb and Judge Patricia Riley reversed, holding the evidence doesn’t support the trial court’s finding that the Heymanns reasonably believed there was a major defect. They held the Heymanns had to have an objectively reasonable belief that the property contained major defects. The findings in the inspection don’t support an objectively reasonable belief that the defect was major.

“The report indicates there was no electrical power to three outlets, which could be and in fact was easily repaired. Therefore, under an objective standard, this would not have a significant adverse effect on the property’s value or significantly impair the health or safety of occupants,” Chief Judge Robb wrote.

The majority noted the buyer must be held responsible for selecting an inspector whose technical capability and approach to identifying and conveying problems in an inspection report enable a compromise as to repairs or cost deductions between a buyer and seller or termination of the purchase agreement. Any failure by the buyer’s inspector must be faulted to the buyer.

“Any incompetency of the Heymanns’ inspector – demonstrated by his failing to resolve the problem by pushing the GFI reset buttons and triggering the Heymanns’ concern as to the seriousness of the electrical problems – must be faulted to the Heymanns,” she continued. “It was the Heymanns’ responsibility to clarify with the inspector the extent of the electrical problem prior to their basing their decision to terminate the agreement on his findings.”

Judge Elaine Brown dissented, pointing out that there was no evidence the inspector chosen by the Heymanns wasn’t qualified, that his inspections were substandard, or that the report was lacking in quality.

She also dissented on the matter that the Heymanns gave Fischer through Feb. 18 to agree to remedy the problems, but she failed to do so. Judge Brown pointed to a part of the purchase agreement that states time periods in it are calendar days and shall expire at midnight of the date stated unless otherwise agreed to. By its terms, the purchase agreement expired at midnight on Feb. 18, she wrote.

The majority remanded for the trial court to determine the extent of damages owed to Fischer, as well as trial and appellate attorneys fees and costs.

 

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  1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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