ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:
J. GORDON GIBBS, JR. J. LAMONT HARRIS
Hinkle & Gibbs Henthorn Harris & Weliever
IN THE COURT OF APPEALS OF INDIANA
CHRISTOPHER KASHMAN and ) RITA BETH KASHMAN, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 54A05-0112-CV-528 ) RICKY J. HAAS and BECKY HAAS, ) ) Appellees-Defendants. )APPEAL FROM THE MONTGOMERY CIRCUIT COURT The Honorable David Ault, Special Judge
April 17, 2002
OPINION - FOR PUBLICATION
Whether the trial court erred by granting Sellers motion for summary judgment because
Buyers were allegedly entitled to rely upon Sellers residential real estate disclosure form
The facts most favorable to Buyers follow. Sellers owned a home located at 409 Prospect Street in Crawfordsville, Indiana. In June of 1990, Sellers discovered the presence of termites in their home and entered into a contract with Terminex International (Terminex) for a Termite Protection Plan designed to treat the house for the eradication of the termite infestation. Appellants Appendix at 154. Pursuant to this contract, Terminex prepared an inspection graph (Terminex Inspection Graph) indicating the location where termites were discovered in Sellers home. In 1994, Sellers discovered termite damage in their home and Terminex hired a contractor to repair the termite damage. Subsequently, in 1997, Sellers discovered additional termite damage to the home and Terminex re-treated the home and repaired the damage.
On March 23, 1998, Buyers purchased Sellers home. Prior to the sale, Sellers gave Buyers a Disclosure Form, which provided that Sellers home did not have any damage due to wind, flood, termites, or rodents. Id. at 232-233. In addition, the terms of the purchase agreement between Buyers and Sellers gave Buyers the right to have Sellers home inspected for the structural condition of the home and for wood-destroying insect infestations. Buyers hired Central Indiana Home Inspections, Inc., (Central Inspections) to inspect Sellers home. Central Inspections inspected the home and found no evidence of any major structural defects and no evidence of wood-destroying insect infestation. In fact, Central Inspections found no evidence of [the home] ever having any problem with insect infestation. Id. at 47. At closing, Sellers gave Buyers a copy of the Termite Protection Plan and claimed that Sellers had maintained a termite treatment contract with Terminex because some of the homes in the neighborhood had suffered termite infestation and damage. Sellers then advised Buyers to renew the contract with Terminex as a precaution.
Sometime after the closing, Buyers discovered termite damage in the lower level bathroom, downstairs bedroom, laundry room, recreation room, and garage. Buyers filed an amended complaint against Sellers alleging breach of contract and fraud. In response to Buyers complaint, Sellers filed a motion for summary judgment. On August 1, 2001, after conducting a hearing, the trial court denied Sellers motion for summary judgment. Sellers then filed a motion to certify the order denying summary judgment for interlocutory appeal. On August 6, 2001, the trial court, sua sponte, reconsidered and reversed its earlier ruling and granted Sellers motion for summary judgment. Buyers then filed a motion to correct error, which the trial court denied.
A trial court has wide discretion to correct errors, and we will reverse only for an abuse of that discretion. Mitchell v. State, 726 N.E.2d 1228, 1238 (Ind. 2000), rehg denied. An abuse of discretion occurs when the trial courts action is against the logic and effect of the facts and circumstances before it and the inferences that may be drawn therefrom. Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 167 (Ind. Ct. App. 2000), rehg denied, trans. denied. To determine whether the trial court abused its discretion by denying Buyers motion to correct error, we must decide whether the trial court erred when it granted Sellers motion for summary judgment.
A trial courts grant of summary judgment is clothed with a presumption of validity. Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993). On review of a trial courts decision to grant or deny summary judgment, we apply the same standard as the trial court: we must decide whether there is a genuine issue of material fact that precludes summary judgment and whether the moving party is entitled to judgment as a matter of law. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind. 1999). Once the moving party has sustained its initial burden of proving the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law, the party opposing summary judgment must respond by designating specific facts establishing a genuine issue for trial. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992).
In the summary judgment context, we may consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the motion for summary judgment. Ind. Trial Rule 56(C), (H). Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party. Cowe v. Forum Group, Inc., 575 N.E.2d 630, 633 (Ind. 1991). Although the nonmovant has the burden of demonstrating that the grant of summary judgment was erroneous, we carefully assess the trial courts decision to ensure that the nonmovant was not improperly denied his day in court. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind. 1997).
The mechanical systems.
The water and sewer systems.
Other areas that the Indiana real estate commission determines are appropriate.
A notice to the prospective buyer that contains substantially the following language:
The prospective buyer and the owner may wish to obtain professional advice or
inspections of the property and provide for appropriate provisions in a contract between
them concerning any advice, inspections, defects, or warranties obtained on the property..
A notice to the prospective buyer that contains substantially the following language:
The representations in this form are the representations of the owner and are
not the representations of the agent, if any. This information is for
disclosure only and is not intended to be a part of any contract
between the buyer and owner.. . . .
Pursuant to Ind. Code § 24-4.6-2-7, the Indiana Real Estate Commission prescribed a
specific form for owners of residential real estate to complete and submit to
buyers. Ind. Admin. Code 1-4-2. However, Ind. Code § 24-4.6-2-11 places
limits on the owners responsibility for errors and omissions in the disclosure form.
Ind. Code § 24-4.6-2-11 provides that:
The 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:
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;
the owner was not negligent in obtaining information from a third party and
transmitting the information.
Sellers filed for summary judgment under this section, claiming that they had no actual knowledge of termite damage in their house and that they relied upon a professionals indication that no damage exited. Buyers, however, claim that Sellers did have actual knowledge of existing termite damage when they completed the Disclosure Form.
When we reviewed the Record, we discovered no designated evidence that reveals that Sellers had actual knowledge of any existing termite damage to the home at the time they completed the Disclosure Form and sold the home to Buyers. There is evidence that Sellers discovered the presence of termites in their home in 1990 and, as a result, entered into a contract with Terminex to treat the house for the eradication of the termite infestation. Appellants Appendix at 154. Then, in 1994, Sellers discovered termite damage in their home and Terminex hired a contractor to repair the damage. Subsequently, in 1997, Sellers discovered more termite damage and Terminex retreated the home and repaired the damage. Sellers instructed the contractor for Terminex to repair any termite damage that he found. When the 1997 termite damage repairs were completed, the contractor orally assured Sellers that all known termite damage had been repaired. Sellers reasonably relied upon the contractors assurances that all damage had been repaired when they completed and signed the Disclosure Form. Buyers have failed to designate any admissible evidence to the contrary. Because Buyers failed to designate evidence demonstrating that Sellers had actual knowledge of termite damage, Ind. Code § 24-4.6-2-11 excuses Sellers from any liability based upon their answers on the Disclosure Form. See I.C. § 24-4.6-2-11.
In addition, the designated evidence reveals that, prior to purchasing the home, Buyers hired Central Inspections to inspect the home for its structural condition and for wood-destroying insect infestations. Central Inspections inspected the home and found no evidence of any major structural defects and no evidence of wood-destroying insect infestation. In fact, the inspector found no evidence of [the home] ever having any problem with insect infestation. Appellants Appendix at 47. It is well settled that [a] purchaser of property has no right to rely upon the representations of the vendor of the property as to its quality, where he has a reasonable opportunity of examining the property and judging for himself as to its qualities. Pennycuff v. Fetter, 409 N.E.2d 1179, 1180 (Ind. Ct. App. 1980). Here, Buyers clearly had a reasonable opportunity to examine the home, and indeed did so with the aid of Central Inspections, before purchasing it. In addition, Ind. Code § 24-4.6-2-9 provides that [a] disclosure form is not a warranty by the owner or the owners 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. Consequently, the trial court did not err by granting Sellers motion for summary judgment on this issue. See, e.g., Parks v. A.P. Green Indus., Inc., 754 N.E.2d 1052, 1061 (Ind. Ct. App. 2001), rehg denied. Because the trial court did not err by granting Sellers motion for summary judgment, it did not abuse its discretion when it denied Buyers motion to correct error. See, e.g., Reese v. Reese, 671 N.E.2d 187, 194 n.7 (Ind. Ct. App. 1996), trans. denied.
For the foregoing reasons, we affirm the trial courts grant of Sellers motion for summary judgment and its denial of Buyers motion to correct error.
FRIEDLANDER, J., and BROOK, C. J. concur