                                                               Jan 31 2014, 9:04 am

FOR PUBLICATION

ATTORNEY FOR APPELLANTS:                      ATTORNEYS FOR APPELLEES:

EDWARD R. HANNON                              MARGARET M. CHRISTENSEN
Steuerwald Hannon Zielinski & Witham, LLP     MICHAEL RYAN HARTMAN
Danville, Indiana                             Bingham Greenebaum Doll LLP
                                              Indianapolis, Indiana



                           IN THE
                 COURT OF APPEALS OF INDIANA

WILLIAM E. BOEHRINGER,               )
CLEO A. BOEHRINGER, and the          )
CLEO A. BOEHRINGER TRUST,            )
                                     )
    Appellants-Plaintiffs-           )
    Counterclaim Defendants,         )
                                     )
           vs.                       )                No. 29A05-1303-PL-154
                                     )
GREGORY J. WEBER and SUSAN M. WEBER, )
                                     )
    Appellees-Defendants-            )
    Counterclaim Plaintiffs.         )


                 APPEAL FROM THE HAMILTON SUPERIOR COURT
                      The Honorable William J. Hughes, Judge
                          Cause No. 29D03-0904-PL-1619


                                   January 31, 2014

                           OPINION - FOR PUBLICATION

BRADFORD, Judge
                                          CASE SUMMARY

        In 2006, Appellants-Plaintiffs-Counterclaim Defendants William and Cleo Boehringer

and the Cleo A. Boehringer Trust (collectively, “the Boehringers”) purchased a house (“the

House”) from Appellees-Defendants-Counterclaim Plaintiffs Gregory and Susan Weber (“the

Webers”). Before the sale, the Webers indicated in a disclosure form that they had no

knowledge of any hazardous conditions in the House. In 2007, the Boehringers discovered

mold in the House, and in 2009 they filed a complaint against the Webers for fraudulently

failing to disclose the presence of mold when they allegedly had actual knowledge of it. The

Boehringers also sought rescission or compensatory damages on the basis of mutual mistake

of fact. Finally, the Boehringers’ complaint asserted claims against Homes by John

McKenzie; Beazer Homes Indiana, LLP; and Trinity Homes, LLC (“the Builder”). The

Webers asserted a counterclaim for costs and attorney’s fees, a claim brought pursuant to the

purchase agreement for the House, which specifically entitled the prevailing party in any

litigation relating to that purchase agreement to recover such sums.

        Both the Boehringers and Webers moved for summary judgment. The trial court

denied the Boehringers’ summary judgment motion relating to their fraudulent

misrepresentation and mutual mistake claims, and the case proceeded to trial. Following a

jury trial, judgment was entered in favor of the Webers on the Boehringers’ claims, and the

Webers were awarded $425,000.00 pursuant to their counterclaim.1 The trial court denied the



        1
            The Boehringers do not challenge the amount of the award to the Webers. Of course, were we to
rule in the Boehringers’ favor on the underlying claim, this award to the Webers would have to be reversed as
well.

                                                     2
Boehringers’ motion to correct error, and they now appeal. The Boehringers claim that the

trial court erred in denying them summary judgment on their fraudulent misrepresentation

claim and that, in the alternative, the evidence presented at trial cannot sustain the jury’s

verdict against them. Concluding that the trial court did not err in denying the Boehringers’

summary judgment claim and that the evidence sustains the jury’s verdict, we affirm.

                       FACTS AND PROCEDURAL HISTORY

       The House, built by the Builder and located in Fishers, is a one-story frame residence

faced with a combination of rough stone veneer and horizontal composite siding planks. The

House includes a full walk-out basement with poured concrete walls and a connected wood

deck on the back. The Webers moved into the House in 1999 and, in the summer of 2006,

began hearing reports of water intrusion in other nearby houses also built by the Builder. The

Webers hired True Construction, Inc., to conduct an inspection of the House, which company

President David Howell did on October 19, 2006. Howell’s report detailed what in his

estimation were several defects in the construction of the House, many—if not most—related

to water control. Inter alia, Howell noted a lack of base flashing or weep holes in the

House’s stone veneer, a lack of flashing or weep holes under windows, flat window sills, a

lack of flashing between the deck and exterior walls with resulting water damage, a

downstairs window completely rotted due to water damage, and water damage to wood

adjacent to windows. Howell’s report did not mention mold.

       On November 21, 2006, the Webers, by their attorney, sent a letter to the Builder

seeking repair of damage to the House due to allegedly substandard construction. At


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Builder’s direction, the House was inspected again on December 20, 2006, by Thomas

Schubert of Triad Associates, Inc. The report from the second inspection provided, in part,

as follows:

       a.)    There was suspect black staining that was likely visible fungal growth
              on the Basement OSB band board located under the Nook area. There
              was water staining on the wood sill plate and wood studs located below
              the Nook area in the Basement. The suspect black staining and water
              staining were likely the result of an improperly flashed wood deck.
       b.)    There was paint chipping on the window stool of the Garage west wall
              south window at the time of the investigation. The paint damage was
              likely the result of a leaking window and/or condensation formation.
       c.)    There was suspect water damage to the trim boards located on the
              Chimney Chase. The suspect water damage was likely the result of
              water intrusion form improperly flashed trim boards.
       d.)    There were several exposed OSB band boards evident under the Nook
              bay window area. There was suspect black staining that was likely
              visible fungal growth on the OSB band boards under the Nook bay
              window area at the time of the investigation. The suspect black
              staining was likely the result of water intrusion from an improperly
              flashed wood deck.
       e.)    The wood deck was not properly flashed at several locations on the
              residence.
       f.)    There was suspect black staining on the gutter board location on the
              Recreation Room east wall at the time of the investigation. The suspect
              black staining was likely the result of water intrusion from an
              improperly installed gutter board and/or improperly flashed wood deck.
       g.)    Some horizontal trim boards were partially buried within landscape
              mulch beds.
       h.)    The “Z” flashing on some trim boards was not properly installed and/or
              extended on the residence.
       i.)    There were several areas around the perimeter of the residence where
              deteriorated caulking was evident. There were miter gaps evident at
              several locations around the residence.
       j.)    Some horizontal siding planks and trim boards had been removed and
              reinstalled and/or replaced. There were unpainted nail heads evident at
              these locations.

Plaintiff’s Ex. 3 at 1-2. Schubert’s report did not mention mold.


                                             4
       In March of 2007, Builder began remediation work on the House in order to address

water intrusion issues. Soon thereafter, the Webers met with realtors with the intention of

putting the House up for sale. On June 24, 2007, the Webers executed a “Seller’s Residential

Real Estate Sales Disclosure.” To the following question on the sales disclosure, the Webers

responded “no”: “Have there been or are there any hazardous conditions on the property,

such as methane gas, lead paint, radon gas in house or well, radioactive material, landfill,

mineshaft, expansive soil, toxic materials, mold, other biological contaminants, asbestos

insulation, or PCB’s?” Plaintiff’s Ex. 4 at 2. In addition to the fact that neither the Howell

nor Schubert inspections discovered mold, nobody mentioned mold to the Webers during a

February walkthrough or during remediation of the House.

       On July 12, 2007, the Boehringers made an offer on the House and agreed to terms of

sale with the Webers. The sale closed on August 30, 2007. In the spring of 2008, William

noticed black material on a windowsill in his home office. In April of 2008, testing

confirmed the presence of mold spores on window frames in William’s office, the master

bathroom, and the master bedroom. Additional testing revealed the presence of mold

elsewhere in the House.

       On April 17, 2009, the Boehringers filed a complaint against the Webers, Builder,

Homes by John McKenzie, and Beazer Homes. The complaint raised claims of fraudulent

misrepresentation regarding the presence of mold in the House and mutual mistake of fact

against the Webers as well as violation of the implied warranty of habitability against

Builder. On June 22, 2009, the Webers responded to the Boehringers’ complaint and


                                              5
counterclaimed for costs and reasonable attorney’s fees for defending the Boehringers’

complaint. Paragraph 20 of the purchase agreement for the House provides that “[a]ny party

to this agreement who is the prevailing party in any legal or equitable proceeding against any

other party brought under or with relation to the Agreement or transaction shall be

additionally entitled to recover court costs and reasonable attorney’s fees from the non-

prevailing party.” Appellant's App. p. 114. On July 29, 2010, the Webers moved for

summary judgment. On October 21, 2010, the Boehringers cross-moved for summary

judgment against the Webers. On April 25, 2011, the trial court granted the Webers’

summary judgment motion in part2 and denied it in part and denied the Boehringers’

summary judgment cross-motion in full.

        On October 21, 2011, the Boehringers dismissed their claims against Builder. On

December 9, 2011, the Webers filed a third-party claim against Builder. The jury trial began

on December 17, 2012. Following trial, the jury rendered verdicts in favor of the Webers on

the Boehringers’ claims, in favor of the Webers in the amount of $425,000.00 on the Webers

counterclaim, and in favor of Builder on the Webers’ third-party claim. On February 26,

2013, the trial court denied the Boehringers’ motion to correct error.

                                 DISCUSSION AND DECISION

                               I. Sales Disclosure Law in Indiana




        2
         The trial court granted summary judgment in favor of the Webers on claims related to a pontoon boat
the Boehringers purchased from them and statements allegedly made regarding the removal of a neighbor’s
tree. These claims are not at issue on appeal.

                                                     6
       Both of the Boehringers’ claims hinge on the Webers’ alleged failure to comply with

Indiana’s sales disclosure laws, found at Indiana Code chapter 32-21-5, giving rise to a claim

of fraudulent misrepresentation. Section 7 of that chapter requires the Indiana Real Estate

Commission to adopt a disclosure form for sellers of a single-unit residence. Ind. Code § 32-

21-5-7. The disclosure must contain

       the known condition of the following:
           (A) The foundation.
           (B) The mechanical systems.
           (C) The roof.
           (D) The structure.
           (E) The water and sewer systems.
           (F) Additions that may require improvements to the sewage disposal
           system.
           (G) Other areas that the Indiana real estate commission determines are
           appropriate.

Ind. Code § 32-21-5-7(1). This form must be completed, signed, and submitted to the

prospective buyer before an offer for sale is accepted. Ind. Code § 32-21-5-10. However,

the form “is not a warranty by the owner or the owner’s agent, if any, and the disclosure form

may not be used as a substitute for any inspections or warranties that the prospective buyer or

owner may later obtain.” Ind. Code § 32-21-5-9. Moreover,

       [t]he owner is not liable for any error, inaccuracy, or omission of any
       information required to be delivered to the prospective buyer under this
       chapter if:
           (1) the error, inaccuracy, or omission was not within the actual knowledge
           of the owner or was based on information provided by a public agency or
           by another person with a professional license or special knowledge who
           provided a written or oral report or opinion that the owner reasonably
           believed to be correct; and
           (2) the owner was not negligent in obtaining information from a third party
           and transmitting the information.


                                              7
Ind. Code § 32-21-5-11 (emphasis added). As the Indiana Supreme Court has recently made

clear, actual knowledge must be shown in order to show a failure to comply with the sales

disclosure statutes—a showing that an owner failed to disclose a defect of which he should

have known is not sufficient. Johnson v. Wysocki, 990 N.E.2d 456, 466-67 (Ind. 2013).

       Failure to comply with Indiana’s sales disclosure statutes gives rise to a cause of

action for fraudulent misrepresentation. Id. at 460-61. In order to prevail in a cause of action

for fraudulent misrepresentation, the Boehringers had to establish that 1) the Webers made

false statements of past or existing material facts; 2) the Webers made such statements

knowing them to be false or recklessly without knowledge as to their truth or falsity; 3) the

Webers made the statements to induce the Boehringer to act upon them; 4) the Boehringers

justifiably relied and acted upon the statements; and 5) the Boehringers suffered injury.

Dickerson v. Strand, 904 N.E.2d 711, 715 (Ind. Ct. App. 2009) (citing Verrall v. Machura,

810 N.E.2d 1159, 1162 (Ind. Ct. App. 2004), trans. denied).

     II. Whether the Trial Court Erred in Denying the Boehringers’ Summary
          Judgment Motion on their Fraudulent Misrepresentation Claim

       When reviewing the grant or denial of a summary judgment motion, we apply the

same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc.,

741 N.E.2d 383, 386 (Ind. Ct. App. 2000). Summary judgment is appropriate only where the

evidence shows there is no genuine issue of material fact and the moving party is entitled to a

judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and reasonable inferences

drawn from those facts are construed in favor of the nonmoving party. Id. To prevail on a

motion for summary judgment, a party must demonstrate that the undisputed material facts

                                               8
negate at least one element of the other party’s claim. Id. Once the moving party has met

this burden with a prima facie showing, the burden shifts to the nonmoving party to establish

that a genuine issue does in fact exist. Id. The party appealing the summary judgment bears

the burden of persuading us that the trial court erred. Id.

       The Boehringers claim, inter alia, that the designated evidence establishes that the

Webers had actual knowledge of the presence of mold in the House before sale and that they

therefore committed fraudulent misrepresentation when they indicated on the sales disclosure

form that they knew of no existing hazardous conditions in the House. Because we conclude

that the designated evidence does not establish that the Webers actually knew of the presence

of hazardous mold in the House when they executed the sales disclosure, we need not address

the Boehringers’ other claims.

       The undisputed designated evidence indicates that the House was inspected by Howell

in October of 2006 and by Schubert in January of 2007, and that neither inspector indicated

the presence of mold. Moreover, both Webers submitted affidavits indicating that neither

detected any evidence of mold while living in the House. If believed, this evidence

establishes a lack of actual knowledge of mold on the part of the Webers, which is required.

See Johnson, 990 N.E.2d at 466-67. At the very least, this designated evidence generates a

genuine issue of material fact on the question of actual knowledge, precluding the entry of

summary judgment in favor of the Boehringers on their fraudulent misrepresentation claim.

The trial court did not err in denying the Boehringers summary judgment motion.

       III. Whether the Evidence Supports the Jury’s Verdict in Favor of the
          Webers on the Boehringers’ Fraudulent Misrepresentation Claim

                                              9
       The Boehringers also contend that, even if the trial court correctly denied their

summary judgment motion against the Webers, the evidence at trial does not support the

jury’s verdict against them. “It has long been the rule of law that in determining the

sufficiency of the evidence we review all of the evidence and in its consideration we accept

as true all facts and all proper inferences which the jury might draw from the facts that are

calculated to sustain the verdict.” N.Y., C. & St. L. R. Co. v. Mercantile Nat’l Bank of

Hammond, 130 Ind. App. 638, 652, 165 N.E.2d 382, 389 (1960); see also Midwest Oil Co. v.

Storey, 134 Ind. App. 137, 150, 178 N.E.2d 468, 474 (1961). “This court does not concern

itself with conflicts in the evidence or the credibility of the witnesses.” Bank of Hammond,

130 Ind. App. at 652, 165 N.E.2d at 389; see also Storey, 134 Ind. App. at 150, 178 N.E.2d at

474. When the sufficiency of the evidence is questioned on appeal, “we do not weigh the

evidence, but we examine the record to see if there is any evidence, or any reasonable or

logical inference which may be drawn from the evidence, which if believed by the jury would

sustain the verdict.” Bank of Hammond, 130 Ind. App. at 652, 165 N.E.2d at 390 (citing

Butterfield v. Trittipo, 67 Ind. 338, 342 (1897); Ind. Ins. Co. v. Handlon, 216 Ind. 442, 446,

24 N.E.2d 1003, 1005 (1940)).

       Both the Howell and Schubert reports, which, as previously mentioned, did not

contain any mention of mold in the House, were admitted at trial. In addition, William

testified that no inspector ever told him that there was mold in the House, mold was not

discussed during a February of 2007 walkthrough with the Builder, and mold was not

discussed during the March of 2007 remediation. Finally, Susan testified that nobody ever


                                             10
told her that the House had a mold infestation prior to the sale. This evidence, which the jury

was entitled to believe and apparently did, establishes that the Webers lacked actual

knowledge of mold in the House when they executed the sales disclosure, even assuming,

arguendo, that any existed at the time. The Boehringers’ argument in this regard is nothing

more than an invitation to reweigh the evidence, which we will not do. The evidence

presented at trial sustains that jury’s verdict.

       The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




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