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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. 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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