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Supreme Court kicks ‘buyer beware’ vs. disclosure case back to trial court

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A Lake County dispute over whether a buyer or seller is responsible for a few thousand dollars worth of home defects is headed back to the trial court after a divided Indiana Supreme Court ordered a legal do-over.

Justice Steven David wrote for the majority that the trial court applied the incorrect standard in ordering the sellers to pay the buyers a little more than $13,000 for repairs that had to be made after closing. The sellers represented in disclosure forms that they knew of no defects, and the buyers relied on that when they ordered a cursory inspection that turned up no problems.

The trial court found that the issues raised in the complaint “should have been obvious” to the sellers, a standard that David wrote was lower than “actual knowledge.” “This means that the trial court here applied the wrong legal standard to the facts, even assuming that those facts are sufficiently supported by the record. The judgment is therefore clearly erroneous,” David wrote in Barbara A. Johnson and William T. Johnson, Both Individually and as Trustees of the Barbara A. Johnson Living Trust Dated 12-17-1996 v. Joseph Wysocki and M. Carmen Wysocki, 45S04-1211-CT-634.

“We reverse the trial court and remand for new findings pursuant to this opinion,” David wrote for the majority, joined by Chief Justice Brent Dickson and Justices Mark Massa and Loretta Rush.

Justice Robert Rucker concurred in part and dissented in part. Agreeing that the trial court applied the wrong legal standards to facts of the case, and that Indiana’s Disclosure Statutes don’t trump the common law “caveat emptor” principle, Rucker said the trial court nevertheless decided the case on the facts and the matter didn’t merit revisiting.

“It is certainly true the trial court did not use the magic words ‘actual knowledge,’” Rucker wrote in the one-paragraph dissent of a 16-page opinion. “But as recounted in the Facts section of the majority opinion, the record before us is more than sufficient to support the conclusion that the Johnsons had such knowledge of the various defects prior to the time they sold the property to the Wysockis. I would therefore affirm the judgment of the trial court in all respects and put this litigation to rest.”

 


 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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