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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. My husband financed a car through Wells Fargo In dec 2007 and in Jan 2012 they took him to court to garnish his wages through a company called autovest llc . Do u think the statue of limitations apply from the day last payment was received or from what should have been the completion of the loan

  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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