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. This state's high court has spoken, the fair question is answered. Years ago the Seventh Circuit footnoted the following in the context of court access: "[2] Dr. Bowman's report specifically stated that Brown "firmly believes he is obligated as a Christian to put obedience to God's laws above human laws." Dr. Bowman further noted that Brown expressed "devaluing attitudes towards pharmacological or psycho-therapeutic mental health treatment" and that he made "sarcastic remarks devaluing authority of all types, especially mental health authority and the abortion industry." 668 F.3d 437 (2012) SUCH acid testing of statist orthodoxy is just and meet in Indiana. SUCH INQUISITIONS have been green lighted. Christians and conservatives beware.

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