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Justices uphold $94,000 in damages, fees for failed condo sale

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The Indiana Supreme Court agreed with the trial court that a seller of a condo whose buyers backed out of the purchase agreement over failed repairs could have mitigated her damages by selling the condo in 2007 to a different buyer instead of waiting until 2011 and accepting a lower price.

Michael and Noel Heymann entered into a purchase agreement in 2006 to buy an Indianapolis condo from Gayle 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. Fischer failed to timely respond to their demand, but she did eventually fix the problem. They Heymanns tried to get out of the deal, but Fischer sued them.

The case made it to the Court of Appeals twice – the first time, the Court of Appeals ordered the trial court to determine damages owed to Fischer because the Heymanns’ demand itself breached the agreement because it stemmed from an objectively unreasonable belief that the electrical problem was a “major defect.” The trial court concluded Fischer failed to mitigate her damages because she could have accepted an offer to sell the condo in 2007 for $240,000 instead of waiting to sell it for $180,000 in 2011. The judge found she’s only entitled to approximately $94,000 in damages – the difference between the original $315,000 price and the $240,000 offer, plus other costs and attorney fees that accrued during that time.

A divided Court of Appeals reversed, agreeing with the Heymanns’ argument that Fischer could have avoided all damages except the $117 repair bill for the lights if she had responded to their demand to fix the electrical problem.

But the justices agreed with the trial court in Gayle Fischer v. Michael and Noel Heymann, 49S02-1309-PL-620. The trial court acted within its discretion by finding that Fischer could have mitigated her damages by selling the condo in 2007 as well as in refusing to find that her duty to mitigate required yielding to the Heymanns’ breach.

“Just as breaching parties may not take advantage of their breach to relieve them of their contractual duties, neither may they take advantage of their breach to require non-breaching parties to perform beyond their contractual duties,” Justice Loretta Rush wrote. “And just as non-breaching parties may not place themselves in a better position because of the breach, neither may breaching parties.

“Holding otherwise would require sellers like Fischer to choose between surrendering to the terms of a breach or forfeiting damages whenever a buyer breaches an agreement by conditioning purchase on strict compliance with an unreasonable demand. This predicament would let buyers demand minor repairs with impunity and undermine sellers’ ability to enforce the “major defects” clause of countless real-estate contracts. To the  contrary, if the contract terms permit, sellers may refuse to replace the bathroom mirror, produce the warranty for household appliances, or — as in Fischer’s case — timely repair an electrical problem by pushing the reset button on three outlets and replacing a light bulb.

The justices pointed to the evidence that Fischer’s asking price for the condo was unreasonably high from 2007 to 2011, when it sold, and that she could have sold in 2007 but made an “unreasonable” counteroffer, thus killing the deal to affirm her damages award. The justices affirmed the trial court’s award of $93,972.18.

 

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  1. My daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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