                                                                               FILED
ATTORNEYS FOR APPELLANT                                                    Jun 28 2016, 9:24 am

Jane Dall Wilson                                                               CLERK
                                                                           Indiana Supreme Court
Andrew M. McCoy                                                               Court of Appeals
                                                                                and Tax Court
Faegre Baker Daniels LLP
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Rachel Staggs,                                             June 28, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           47A04-1510-PL-1758
        v.                                                 Appeal from the Lawrence Circuit
                                                           Court
Corena Buxbaum,                                            The Honorable Andrea K.
Appellee-Plaintiff.                                        McCord, Judge
                                                           Trial Court Cause No.
                                                           47C01-0912-PL-1522



Brown, Judge.




Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016                           Page 1 of 21
[1]   Rachel Staggs appeals the trial court’s order awarding treble damages, actual

      costs, and attorney fees pursuant to the Crime Victim Relief Act (“CVRA”) in

      favor of Corena Buxbaum. Staggs raises two issues which we revise and restate

      as:


             I.      Whether the trial court applied the wrong standard in awarding
                     exemplary damages under the CVRA; and

            II.      Whether the court’s award of exemplary damages is clearly
                     erroneous.

      We affirm.


                                       Facts and Procedural History

[2]   This is an appeal following remand from this court. In our first decision we

      summarized the facts as follows:

                  In 1998, Staggs married Dwight Staggs and moved into his
                  residence (the Property). In 2005, Dwight passed away and
                  Staggs became the sole owner of the Property.


                  In 2008, Staggs decided to sell the Property. On the Seller’s
                  Residential Real Estate Sales Disclosure Form, Staggs indicated
                  that the septic field/bed was not defective, that she did not know
                  the condition of the septic and holding tank/septic mound, and
                  that there were no moisture or water problems in the basement.


                  Buxbaum was interested in purchasing the Property. She visited
                  the house twice and did not notice any moisture problems in the
                  basement. Buxbaum hired an inspector, who identified a radon
                  problem on the Property but did not identify any other problems.




      Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016     Page 2 of 21
        On August 27, 2008, Buxbaum purchased the Property from
        Staggs. Shortly thereafter, Buxbaum attempted to locate the
        septic system on the Property as she planned to build a garage
        and did not want to build above the septic tank. Eventually,
        Buxbaum learned that there was no septic system on the
        Property. Instead, sewage was expelled through a sewage pipe
        that traversed several hundred feet across the Property and
        terminated at the back of the Property.


        In November 2008, Buxbaum learned that there was a leak in the
        basement. An employee of the company Buxbaum hired to
        remedy the moisture problems stated that he believed the
        basement had been leaking for years, as he observed water stains
        and noticed that the floor had been pushed up because of
        hydrostatic pressure.


        On December 14, 2009, Buxbaum filed a complaint against
        Staggs, alleging a single count of fraudulent misrepresentation.
        A bench trial took place on May 12 and December 12, 2013. On
        the first day of the trial, Staggs was represented by attorney Philip
        Chamberlain. Between the first and second days of trial, Mr.
        Chamberlain’s license to practice law was suspended, so Staggs
        appeared pro se at the second day of trial.


        Over the course of the trial, the following evidence was submitted
        to the trial court:


                 • Staggs’s stepdaughter testified that she had grown up in
                 the house on the Property. She knew that there was no
                 septic system and stated that she was present for multiple
                 conversations between her father and Staggs in which her
                 father told Staggs that there was no septic system and that
                 one would need to be installed before attempting to sell the
                 Property.


Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016    Page 3 of 21
                 • Staggs’s stepdaughter also testified that the basement was
                 wet all the time, that Staggs was aware of that fact, and
                 that at one point in time, the family needed to rent a
                 machine to pump water out of the basement.


                 • Staggs’s stepson testified that he was also present for
                 multiple conversations between his father and Staggs in
                 which his father stated that the Property had no septic
                 system. He also testified that he and Staggs had actually
                 walked through the Property several times and seen the
                 pipe out of which the sewage drained.


                 • Staggs’s stepson also testified that the basement
                 frequently had two to four inches of standing water and
                 that Staggs had moved things out of the basement to avoid
                 water damage.


                 • In 2007, Scott Nordhoff of Hydra Stone viewed the
                 Property with potential interest of buying it. At that time,
                 he spoke with Staggs about water problems in the
                 basement and Staggs told him that it was a good thing that
                 he was in the waterproofing business. Nordhoff did not
                 buy the Property but did end up waterproofing the
                 basement in 2009 when Buxbaum hired Hydra Stone to
                 solve the problem. Nordhoff testified that he believed the
                 basement had been leaking for years.


        Buxbaum had to hire professionals to install a septic system,
        remedy the moisture issues in the basement, and waterproof the
        basement. The total cost to her of making these changes was
        $21,939.58.


        On March 4, 2014, the trial court ruled in favor of Buxbaum.
        Among other things, the trial court found as follows:


Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016     Page 4 of 21
              2.       . . . [Staggs] had actual knowledge of the defects in both
                       the basement and the septic system prior to filling out the
                       disclosure form and selling the home and made false
                       statements of important past and existing facts regarding
                       the basement and septic system.


              3.       The court finds that it was not an error, inaccuracy or
                       omission by [Staggs] that was not within her actual
                       knowledge and would keep her from liability.


                                                       ***


                                                    Damages


                                                       ***


              3.       . . . The court finds that there was the requisite specific
                       intent to make a finding of fraud for the purposes of
                       awarding treble damages. . . . The Court now awards
                       [Buxbaum] her request for treble damages.


              Appellant’s App. p. 14-15 (emphasis original). The trial court
              calculated damages as follows: (1) out-of-pocket costs of
              $21,939.58; (2) treble damages of $65,818.74; and (3) attorney
              fees of $7,040. The trial court added all of those amounts for a
              total damages award of $94,798.32.


      Staggs v. Buxbaum (Staggs I), No. 47A01-1406-PL-254, slip op. at 2-5 (Ind. Ct.

      App. February 25, 2015).


[3]   This court addressed three issues in Staggs I, namely, whether the court

      erroneously found in favor of Buxbaum on her claim of fraudulent


      Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016       Page 5 of 21
      misrepresentation, whether the court should reconsider an award of treble

      damages in light of the Indiana Supreme Court’s decision in Wysocki v. Johnson,

      18 N.E.3d 600 (Ind. 2014), and whether the court erred in calculating damages.

      Id. at 6-7, 9. On the fraudulent misrepresentation issue, this Court held that the

      evidence supported the trial court’s judgment and that Staggs’s arguments were

      a request to reweigh the evidence. Id. at 7. Regarding treble damages, we

      observed that Wysocki was handed down after the trial court issued its order,

      that under Wysocki “an additional finding of criminal culpability is now

      required to support an award of treble damages,” and that accordingly remand

      to reconsider the damages award was warranted. Id. at 8-9. We also ruled that,

      to the extent Buxbaum is still entitled to treble damages following remand, “the

      maximum amount of damages to which she is entitled is $72,858.74 (three

      times the actual damages of $21,939.58 plus $7,040 in attorney fees)” and that

      the court in its initial order “actually quadrupled, rather than tripled, Buxbaum’s

      actual damages.” Id. at 9.


[4]   On June 16, 2015, the trial court held a hearing in accordance with Staggs I, and

      on September 29, 2015, issued Findings of Fact and Conclusions of Law (the

      “September Order”) ordering that Buxbaum “is entitled to recover $21,939.59

      in her actual costs and expenses and $7040.00 in her attorney’s fees (see id.),

      plus treble damages of an additional $43,879.18 for a total award of $72,858.77

      which is now entered as a judgment for . . . Buxbaum and against . . . Staggs.”

      Appellant’s Appendix at 25. The findings and conclusions contained in the

      September Order state in part:

      Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016   Page 6 of 21
                                         Findings of Fact


                                               *****


        12. The sales disclosure form in this case included two separate
        entries related to the septic system at the Property . . . . More
        specifically, the first entry is referred to as the “Septic
        Field/Bed,” . . . and the second entry refers to the “Septic and
        Holding Tank/Septic Mound,” . . . .


        13. . . . [W]ith respect to the “Septic and Holding Tank/Septic
        Mound” entry, Ms. Staggs checked the box indicating that she
        did not know the condition of such tank/mound. . . .


        14. With respect to the “septic field/bed” entry, Ms. Staggs
        checked the box indicating that the field was not defective . . . .


        15. [The sales disclosure form] has conflicting statements
        regarding the septic field and bed and the septic holding tank and
        septic mound.


        16. In sum, it could be construed that there was conflicting
        evidence as to whether Ms. Staggs knowingly misrepresented the
        condition of the septic system. The Court credited [Buxbaum’s]
        evidence in its initial opinion in finding a misrepresentation and
        has not been instructed to re-visit that particular finding.
        However, the conflicting evidence is relevant to the Court’s
        determination of whether the record shows “criminally culpable”
        or “heinous” conduct.


        17. Neither inspector who inspected the Property identified any
        water leaks in the basement. . . .



Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016      Page 7 of 21
        18. Ms. Staggs’ step-daughter, Kathy Kopsho, who was called as
        a witness for [Buxbaum], testified that Ms. Staggs “never even
        went down to the basement” (Trial Tr. at 99-100), thus
        contradicting [Buxbaum’s] contention that Ms. Staggs had actual
        knowledge that her basement leaked (and thus that her
        representations on the sales disclosure form were fraudulent).
        However, Ms. Staggs’ stepson testified that Ms. Staggs was
        aware of water in the basement from time to time.


        19. Based on the above, [Staggs] asks this Court to consider
        there was conflicting evidence as to whether Ms. Staggs’ [sic]
        misrepresented moisture issues in the basement. The Court
        credited Ms. Buxbaum’s evidence in its initial opinion in finding
        a misrepresentation and has not been instructed to re-visit that
        particular finding. However, as with the evidence to the septic
        system, the conflicting evidence about Ms. Staggs’ knowledge of
        moisture issues in the basement would have also supported a
        ruling in her favor and bears upon this Court’s determination of
        whether Ms. Staggs acted in a “criminally culpable” or “heinous”
        manner.


        20. [Staggs] asks this Court to consider other extenuating
        circumstances surrounding the trial. First, that Ms. Staggs was
        not present during the first day of the bench trial due to health
        reasons and thus did not hear any of the evidence presented by
        [Buxbaum] during that first day; however, the Court’s record is
        clear that [Staggs] chose to allow the trial to continue after
        consulting with her attorney and was clear on the consequences
        for doing so . . . .


        21. Second, that before the second day of the trial, Ms. Staggs’
        attorney was suspended from the practice of law in Indiana. Ms.
        Staggs represented herself pro se on the second day of trial
        without having heard the evidence presented again during the
        first day of trial. However, the transcript shows that the Court


Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016    Page 8 of 21
        questioned her regarding self-representation and she chose to
        proceed on her own. . . .


        22. . . . [T]he Court would have entertained a Motion for
        Continuance to obtain counsel . . . .


        23. [Staggs] also states that much of the evidence that was
        elicited during [Buxbaum’s] case-in-chief and used against Ms.
        Staggs was un-objected to hearsay. However, Ms. Staggs chose
        to act as her own attorney and was therefore charged with
        knowing and understanding the Rules of Evidence.


        24. To the extent that any of the above Findings of Fact
        constitute Conclusions of Law, the Court adopts and
        incorporates them as such.


                                      Conclusions of Law


        25. This Court was not instructed to re-visit its conclusion that
        Ms. Staggs was liable for fraudulent misrepresentation and
        damages under the CVRA. However, under Wysocki, this Court
        was asked to re-consider whether the evidence supported a
        finding that Ms. Staggs committed “heinous” or “criminally
        culpable” conduct to support the award of treble damages.


        26. In, [sic] Wysocki, the Supreme Court states that, “An actual
        criminal conviction is not required for recovery [under the
        CVRA]; a claimant merely must prove each element of the
        underlying crime by a preponderance of the evidence.” . . . .


                                               *****


        28. The Court originally found that [Staggs] was fully aware that
        the home was void of a septic system and that the basement had
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016    Page 9 of 21
        issues with water leakage. Although [Staggs] believes that there
        may have been some conflicting testimony that does not change
        this Court’s original findings. The Court[’]s original Findings
        and Conclusions were very clear that [Staggs] knew the basement
        had water problems in the past and, although it was dry at the
        time [Buxbaum] was looking to purchase the home, she failed to
        disclose the defect. Also, [Staggs] knew that the home did not
        have a working septic system, only a pipe that ran the sewage to
        an adjoining farm field, yet she chose to check the boxes on the
        forms that stated the septic field beds were not defective and that
        she did not know of the condition of the tank and mound. She
        did not know of the condition of the tank and mound because
        there were none and she was fully aware of that fact. She also
        knew that the septic field was nonexistent as well. All of these
        statements are knowing and intentionally misleading and a clear
        attempt to profit from the sale of her home.


        29. The form language on [the sales disclosure report] reads:


                 “NOTE: “Defect” means a condition that would have a
                 significant adverse effect on the value of the property that
                 would significantly impair the health or safety of future
                 occupants of the property or that, if not repaired, removed,
                 or replaced, would significantly shorten or adversely affect
                 the expected normal life of the premises.


                 The information contained in this Disclosure has been
                 furnished by the Seller, who certifies to the truth
                 thereof, based on the Seller’s CURRENT ACTUAL
                 KNOWLEDGE. . . .


        This Court finds that [Staggs] had actual knowledge of the
        defects in her home and the failure to disclose those defects were
        heinous acts. They could have impaired the health of the future
        occupants and significantly affected the expected normal life of

Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016   Page 10 of 21
              the premises. [Staggs] lied for financial gain putting her welfare
              ahead of the safety and welfare of the future occupants.


              30. In making an assessment of criminality under the
              preponderance standard, the foregoing findings of fact lead the
              court to a conclusion that [Staggs] did act in a “heinous” and
              “criminally culpable” manner when she completed her sales
              disclosure form . . . .


              31. To the extent that any of the above Conclusions of Law
              constitute Findings of Fact, the Court adopts and incorporates
              them as such.


      Id. at 10, 15-18, 20-24.


                                                    Discussion

[5]   Before addressing the issues raised by Staggs, we observe that Buxbaum did not

      file an appellee’s brief. When an appellee fails to submit a brief, we do not

      undertake the burden of developing its arguments, and we apply a less stringent

      standard of review, that is, we may reverse if the appellant establishes prima facie

      error. D & D NAPA, Inc. v. Unemployment Ins. Appeals of Ind. Dep’t of Workforce

      Dev., 44 N.E.3d 67, 73 (Ind. Ct. App. 2015). This rule was established so that

      we might be relieved of the burden of controverting the arguments advanced in

      favor of reversal where that burden properly rests with the appellee. Id.

      Questions of law are still reviewed de novo. Id.


[6]   When a trial court enters findings of fact and conclusions thereon, findings

      control only as to the issues they cover and a general judgment will control as to

      the issues upon which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259,
      Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016     Page 11 of 21
      1262 (Ind. 1997). A general judgment entered with findings will be affirmed if

      it can be sustained on any legal theory supported by the evidence. Id. When a

      court has made special findings of fact, an appellate court reviews sufficiency of

      the evidence using a two-step process. Id. First, it must determine whether the

      evidence supports the trial court’s findings of fact, and second it must determine

      whether those findings of fact support the trial court’s conclusions. Id.

      Findings will be set aside only if they are clearly erroneous. Id. Findings are

      clearly erroneous only when the record contains no facts to support them either

      directly or by inference. Id. A judgment is clearly erroneous if it applies the

      wrong legal standard to properly found facts. Id. In order to determine that a

      finding or conclusion is clearly erroneous, an appellate court’s review of the

      evidence must leave it with the firm conviction that a mistake has been made.

      Id. We review questions of law de novo and owe no deference to the trial court’s

      legal conclusions. M.K. Plastics Corp. v. Rossi, 838 N.E.2d 1068, 1075 (Ind. Ct.

      App. 2005).


                                                                I.


[7]   The first issue is whether the court applied the wrong standard in awarding

      exemplary damages under the CVRA.1 Staggs argues that because an award of




      1
          Ind. Code § 34-24-3-1, i.e., the CVRA, provides in part:

               If a person has an unpaid claim on a liability that is covered by IC 24-4.6-5 or suffers a
               pecuniary loss as a result of a violation of IC 35-43, IC 35-42-3-3, IC 35-42-3-4, or IC 35-45-9,
               the person may bring a civil action against the person who caused the loss for the following:
                 (1) An amount not to exceed three (3) times:

      Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016                             Page 12 of 21
      exemplary damages under the CVRA is discretionary and “must be based upon

      an additional finding of ‘heinous’ or ‘criminally culpable’ conduct,” such

      damages should be awarded under a clear and convincing evidentiary standard.

      Appellant’s Brief at 14. She references the Indiana Supreme Court’s statements

      in Andrews v. Mor/Ryde Intern., Inc., 10 N.E.3d 502 (Ind. 2014), reh’g denied, and

      suggests that that case is distinguishable from these facts. Staggs asserts that,

      under Wysocki, which held that damages under the CVRA were discretionary,

      such damages must be awarded pursuant to a clear and convincing evidence

      standard per the Punitive Damages Act, found at Ind. Code §§ 34-51-3-2, -6.

      She also argues that, accordingly, the trial court’s award of treble damages

      under a preponderance standard was clearly erroneous, maintaining that “[t]he

      question presented to the trial court on remand was not whether the CVRA

      should apply, but instead whether the punitive aspect of CVRA liability (i.e.,

      exemplary damages in the form of, for example, treble damages) was

      warranted. Id. at 17.


[8]   Staggs’s arguments have no merit. In Wysocki, heading II of the Court’s

      opinion states: “A CVRA Claim Requires Proving the Elements of a Criminal




                       (A) the actual damages of the person suffering the loss, in the case of a liability that is
                       not covered by IC 24-4.6-5; or
                       (B) the total pump price of the motor fuel received, in the case of a liability that is
                       covered by IC 24-4.6-5.
              (2) The costs of the action.
              (3) A reasonable attorney’s fee. . . .

      Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016                            Page 13 of 21
      Offense, But Only by the Civil Preponderance Standard . . . .” 18 N.E.3d at

      606. The Court stated specifically:


              [A]s we recently reiterated, “An actual criminal conviction is not
              required for recovery [under the CVRA]; a claimant merely must
              prove each element of the underlying crime by a preponderance
              of the evidence.” Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327,
              334 (Ind. 2013) (internal citation and quotation marks omitted).
              See also Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190, 193
              (Ind. 2012) (same); White[ v. Ind. Realty Assocs. II, 555 N.E.2d
              454, 456 (Ind. 1990)] (construing predecessor statute and
              concluding that “[u]nder this unique statute, a criminal
              conviction is not a condition precedent to recovery. The
              claimant need only prove by a preponderance of the evidence
              that the criminal act was committed by the defendant.” (internal
              citation omitted)); Obremski v. Henderson, 497 N.E.2d 909, 911
              (Ind. 1986) (construing predecessor statute and concluding that
              “[t]he appropriate standard is preponderance of the evidence.”).


      Id. These statements make clear that CVRA liability is examined under a

      preponderance of the evidence standard.


[9]   The Court’s statements in Andrews provide further clarification. In that case,

      plaintiff Andrews sought recovery under the Indiana Sales Representative Act,

      Ind. Code §§ 24-4-7 (2007). 10 N.E.3d at 503. In its analysis, the Court

      observed that “Indiana first restricted common-law punitive damage awards in

      1984, when it required them to be proved by ‘clear and convincing evidence,’”

      in which the legislature’s goals “were to ‘discourage plaintiffs from bringing

      punitive damages claims,’ to ‘decrease the plaintiff’s windfall recovery’ and

      ‘protect defendants from excessive punitive damage awards,’ and generally to


      Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016   Page 14 of 21
       ‘combat perceived ills associated with the rising number of punitive damage

       awards.’” Id. at 504-505. The Court noted that, “[b]y contrast, other causes of

       action and corresponding remedies are purely the Legislature’s own creation,”

       i.e., not a creature of common law, and it specifically referenced the CVRA,

       “which permits the victims of certain crimes to bring an action for up to three

       times their pecuniary losses plus attorney fees.” Id. at 505. The Court noted:


               To the extent those awards exceed the victim’s actual damages,
               their purpose is no less “punitive” or “exemplary” than their
               common-law counterparts. Yet we held that such actions were
               not subject to proof by “clear and convincing evidence,” as the
               first version of the Punitive Damages Act required, because
               “recovery of treble damages under this section is regarded as
               distinct from recovery of common law punitive damages.”
               Obremski, 497 N.E.2d at 911. We agree with Judge Barnes that
               Obremski’s distinction between common-law punitive damages
               and statutory exemplary damages is controlling here.


       Id.


[10]   Thus, the Court in Andrews specifically affirmed the rule in Obremski and based

       its reasoning for applying a preponderance of the evidence standard rather than

       one of clear and convincing evidence not upon whether such damages are

       mandatory or discretionary, as suggested by Staggs, but instead upon whether

       they are based in common law or are a creature of statute. Indeed, although

       Staggs’s brief repeatedly attempts to cast CVRA damages as “punitive” and

       suggests that the holding of Wysocki brings the CVRA under the ambit of the

       Punitive Damages Act, we observe that Ind. Code § 34-24-3-3 provides that a


       Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016   Page 15 of 21
       person may not recover both punitive damages and damages under the CVRA,

       which provides further support for the conclusion that CVRA damages are

       distinct from common law punitive damages.2 We conclude that the court’s

       application of a preponderance of the evidence standard was not clearly

       erroneous.


                                                               II.


[11]   The next issue is whether the court’s award of exemplary damages is clearly

       erroneous. Staggs argues that the court’s findings that conflicting evidence was

       presented contradicts its conclusion that such “evidence supported a finding of

       ‘criminally culpable’ or ‘heinous’ conduct sufficient to award treble damages,”

       and this error is compounded by the court’s application of a preponderance

       standard. Appellant’s Brief at 19. Staggs argues that the court did not make the

       necessary additional findings of criminal culpability to support an award of

       exemplary damages and that instead it “re-hashed findings of basic liability.”

       Id. at 21. She asserts that “[w]hen this court remanded for consideration of the

       Wysocki standard and a requirement that the trial court make ‘an additional

       finding of criminal culpability,’ it surely intended that the trial court make some




       2
           Ind. Code § 34-24-3-3 provides:

                It is not a defense to an action for punitive damages that the defendant is subject to criminal
                prosecution for the act or omission that gave rise to the civil action. However, a person may not
                recover both:
                  (1) punitive damages; and
                  (2) the amounts provided for under section 1 or 1.5 of this chapter.

       Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016                           Page 16 of 21
       finding or draw some conclusion that extends beyond a mere finding of CVRA

       liability” and that “[b]asic liability alone is not enough to warrant exemplary

       damages.” Id. She also argues that, in any event, exemplary damages in this

       case are not warranted where Staggs “actually went to the county department of

       health to ensure that her property was safe for future occupants,” she missed the

       first day of trial and subsequently represented herself at the second day of trial,

       and much of the contradictory evidence came in the form of un-objected to

       hearsay by her estranged adult step-children. Id. at 22.


[12]   In Wysocki, the Indiana Supreme Court discussed liability under the CVRA.

       The facts underlying the dispute in Wysocki involved the Johnsons, who sold a

       home they had owned and occupied for over thirty years, to the Wysockis in

       2006. 18 N.E.3d at 602. During the time the Johnsons lived in the home,

       William Johnson performed most of the renovation and maintenance work

       himself. Id. The Sales Disclosure Form completed by Barbara Johnson

       indicated that there were no building code violations or other issues with the

       home, the Wysockis’ inspector found no problems with the home, and the

       Wysockis purchased the home as-is in July 2006. Id. Shortly after moving in,

       however, the Wysockis discovered multiple issues, including “water leaks in the

       garage and over the front porch, structural problems with the front porch

       overhang and the foundation of the screened porch, and grossly substandard

       electrical wiring to the swimming pool.” Id. They sued the Johnsons for

       fraudulently failing to disclose such defects, and, following a bench trial, the

       court awarded the Wysockis $13,805.95 in compensatory damages based upon


       Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016   Page 17 of 21
       a common-law fraudulent misrepresentation theory but denying their request

       for additional damages, fees, and costs under the CVRA. Id. at 602-603.


[13]   On transfer,3 the Wysockis asked the Court “to adopt a bright-line rule that

       every knowing misrepresentation on a Sales Disclosure Form constitutes

       criminal deception, and thus gives rise to CVRA liability.” Id. at 604. The

       Court declined their request, holding that “the trial court expressly relied on

       common-law fraudulent misrepresentation, and specifically refused to grant

       CVRA relief,” which “was well within the trial court’s discretion.” Id. The

       Court went on to note that “[e]ven when a court awards compensatory

       damages under the CVRA . . . ‘it is highly appropriate for the trial court to

       weigh any equities before deciding the amount, if any, owed’ as exemplary

       damages,” in which a court’s decision not to award damages in excess of the

       actual loss “amounts to an ‘implicit[ ] f[i]nd[ing] that the . . . conduct was not

       so heinous as to require exemplary damages’—even when the court awards

       attorney fees as the statute requires.” Id. at 605. The Court espoused that

       “[t]hough the CVRA creates a civil remedy, its reliance on proof of a predicate

       criminal offense makes it inherently quasi-criminal,” that “just as the

       “heinousness” of the defendant’s conduct may properly factor into the

       factfinder’s decision whether to award exemplary damages under the CVRA,

       the court’s inchoate sense of the defendants’ criminal culpability is a permissible




       3
        The Court’s opinion in Wysocki involved remand for a determination of whether the Johnsons had actual
       knowledge of the defects and was an appeal following remand. 18 N.E.3d at 603.

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       factor in assessing whether the CVRA predicate offense has been proven,” and

       that “when the pleadings give the trial court a choice between an intentional

       tort and the quasi-criminal CVRA, the court necessarily has discretion to

       choose tort liability and reject quasi-criminal liability—even when, as here, the

       criminal offense and civil tort are so closely related.” Id.


[14]   Thus, the Court in Wysocki held that, where the complaint is sufficiently open-

       ended to encompass alternative theories of liability, including common law

       fraudulent misrepresentation sounding in tort and quasi-criminal CVRA

       liability, the court has discretion to award compensatory tort damages only or

       damages under the CVRA. Id. at 605-606. In so holding, it also explained that

       an “assessment of criminality” is required to find liability under the CVRA, that

       such liability entitles the victim, at a minimum, to a recovery of costs and

       attorney fees in accordance with Ind. Code § 34-24-3-1, and that the level of

       “heinousness” shown may factor into the factfinder’s decision whether to

       award exemplary (treble) damages under the CVRA. Id. The Court affirmed

       the trial court’s decision to award compensatory damages for common-law

       fraudulent misrepresentation and decline an award under the CVRA. Id. at

       606.


[15]   In this case, Staggs does not challenge the court’s decision to impose CVRA

       liability at all – she is not disputing the award of costs and attorney fees totaling

       $7,040.00. Rather, her argument is that the court did not make the findings that

       her actions were sufficiently heinous to award exemplary damages under the

       CVRA. In its September Order, the court acknowledged that certain

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       “conflicting evidence is relevant to the Court’s determination of whether the

       record shows ‘criminally culpable’ or ‘heinous’ conduct” regarding Staggs’s

       representations regarding the septic system, and it made a similar observation

       regarding Staggs’s representations concerning the basement moisture issues.

       Appellant’s Appendix at 17. Having so acknowledged, the court went on to

       find unequivocally that Staggs “had actual knowledge of the defects in her

       home and the failure to disclose those defects were heinous acts,” noting that

       such misrepresentations “could have impaired the health of the future

       occupants and significantly affected the expected normal life of the premises.”

       Id. at 24. The court also found that Staggs “lied for financial gain putting her

       welfare ahead of the safety and welfare of the future occupants.” Id. It

       concluded that such facts show that Staggs “did act in a ‘heinous’ and

       ‘criminally culpable’ manner when she completed her sales disclosure form,”

       and accordingly it ordered that she pay treble damages, costs, and attorney fees

       to Buxbaum pursuant to the CVRA.


[16]   The court in its September Order made an “assessment of criminality” as

       instructed by this court in Staggs I, and it concluded that Staggs acted in a

       heinous and criminally culpable manner sufficient to warrant exemplary

       damages. To the extent that she suggests that exemplary damages are not

       warranted because she represented herself pro se on the second day of trial after

       her attorney was suspended from practicing law, the September Order

       specifically addressed this in its findings and found that it was the result of a

       decision by Staggs. “A party may not take advantage of an error that he


       Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016   Page 20 of 21
       commits, invites, or which is the natural consequence of his own neglect or

       misconduct.” Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 695 (Ind. Ct.

       App. 2008) (citing White v. State, 687 N.E.2d. 178, 179 (Ind. 1997)), trans.

       denied. To the extent she asserts that the court’s findings are based on

       inadmissible hearsay, we similarly observe that Staggs invited such errors when

       she chose to represent herself at trial and, in any event, she presented such issue

       in her initial appeal and this Court ruled that, as “no objections to this evidence

       were raised at trial,” such arguments were waived. Staggs I, slip op. at 7. We

       cannot say that the court’s September Order is clearly erroneous.


                                                     Conclusion

[17]   For the foregoing reasons, we affirm the court’s September Order.


[18]   Affirmed.


       Baker, J., and May, J., concur.




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