George M. KISSELL and Marlene J. Kissell, Appellants-Plaintiffs, v. James L. VANES, Dana Vanes and Mary LaMarr, Appellees-Defendants.
No. 57A03-9304-CV-147
Court of Appeals of Indiana, Third District
Feb. 28, 1994
Mrs. Daub‘s testimony standing alone suffers from this deficiency; it is so lacking in probative value on the question of cause in fact that it offers the jury at best only the mere possibility that her back ailment was in fact caused by the slip Mrs. Daub experienced at her in-laws. The distinctions between Mrs. Daubs’ various back problems are not objectively discernible, even to Mrs. Daub. The temporal congruity which Mrs. Daub recognized between the slip and her lower back pain is admittedly some evidence of causation, which when coupled with a diagnosis of the nature of her ailment, and an application of scientific principles by one knowledgeable in the treatment of the ailment, may be sufficient to permit a jury to find for the Daubs without resort to speculation. But, in the absence of that additional evidence, Mrs. Daubs’ lay report of the facts which she experienced first-hand amounts to nothing more than her own hypothesis that her back ailment was caused by the slip. Alone, Mrs. Daub has established nothing more than the facts which make up her allegation.
No reasonable inference that her in-laws’ failure to keep their patio cleared of snow and ice was the proximate cause of Mrs. Daub‘s lower back problems can be drawn from the testimony of record. Accordingly, the trial court correctly concluded that the Daubs had failed to prove their case and properly granted the defendants a judgment on the evidence.
Judgment affirmed.
NAJAM and CHEZEM, JJ., concur.
Robert W. Haller, George Sistevaris, Robert W. Eherenman, Haller & Colvin, Fort Wayne, for appellants-plaintiffs.
Richard K. Muntz, Muntz & VanDerbeck, P.C., LaGrange, for appellees-defendants.
HOFFMAN, Judge.
Appellants-plaintiffs George M. Kissell and Marlene J. Kissell (collectively “Kissells“) appeal from the grant of summary judgment in favor of defendants-appellees James L. Vanes, Dana Vanes and Mary LaMarr on their amended complaint for rescission of a real estate purchase agreement and for money damages.
The facts relevant to this appeal disclose that the Kissells’ amended complaint was filed on October 9, 1992. On November 9, 1992, the Vanes and LaMarr sought summary judgment against the Kissells on their amended complaint by filing a motion and supporting memorandum with the trial court. After a hearing, the trial court granted their motion.1 This appeal ensued.
The Kissells raise two issues on appeal which we consolidate and restate as: whether the trial court erred by granting summary judgment in favor of the Vanes and LaMarr.
As of the January 1, 1991 amendments to
“At the time of filing the motion or response, a party shall designate to the court all parts of the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment
and the evidence relevant thereto....” (Emphasis added.)
As was the case before the amendments, the initial burden is on the party seeking summary judgment to show the propriety of granting the motion. Babinchak v. Town of Chesterton (1992), Ind.App., 598 N.E.2d 1099, 1101, reh. denied. Relying on specifically designated evidence, the moving party must make a prima facie showing: (1) that there are no issues of material fact; and (2) that the movant is entitled to judgment as a matter of law. Id. Only when these two requirements are met does the burden then shift to the non-moving party who must point to specifically designated facts which establish an issue of material fact. Id.
Because the purpose of the amendments to
The Vanes and LaMarr requested summary judgment on November 9, 1992, over a year and a half after the amendment to
Reversed.
BAKER, J., concurs in result with opinion, in which STATON, J., concurs.
BAKER, Judge, concurring.
I concur in the reversal of summary judgment but for a different reason. First, I believe the majority erroneously holds form over substance in its application of
The majority decision and Graham do not further the purposes of
In addition, the trial court set forth findings detailing the materials upon which it based its grant of summary judgment. Rather than wasting valuable judicial resources and impeding the resolution of this case by reversing the trial court because the movant did not comply with
Upon review of the trial court‘s findings and conclusions and the materials it considered, I find that summary judgment in favor of the Vanes and LaMarr was contrary to law. The trial court based its determination upon the amended complaint, the deposition of Mary LaMarr, and the affidavits of George Kissell, Marlene Kissell, Ralph Holler, and Donald Albersmeyer.3 Record at 74.
The facts, as found by the trial court and supported by the materials upon which it relied, are that the Vanes owned Lot 5 in Egli‘s Peninsula Addition. As the name implies, water surrounded Lot 5 on three sides. The Vanes decided to sell Lot 5 and listed the property with Mary LaMarr. Lot 5 was advertised as a three-acre “building lot” with a list price of $35,000. The Kissells discussed with LaMarr the possibility of buying a lot to build a year-round home. The Kissells viewed Lot 5 several times. On June 20, 1989, LaMarr recommended that the foundation for a house built on Lot 5 be on a “floating crawl space” three blocks above ground level. On July 10, 1989, the Kissells met at Lot 5 with LaMarr and a LaGrange County sanitarian, who also recommended a floating crawl space foundation. During the Kissells’ meetings with LaMarr, the soil conditions were not discussed. On August 20, 1989, the Kissells bought Lot 5 for $30,000.
Ralph Holler, the Kissells’ expert, averred that the soil conditions on Lot 5 consisted of marl at least 30 feet deep that would not support a house with a standard foundation. Based upon Holler‘s opinion, at least 55 foot pilings costing approximately $30,000 would be required to support a residence on Lot 5. Donald Albersmeyer, a real estate appraiser, estimated that the soil conditions of Lot 5 would greatly decrease the fair market value of the property for residential use.
Neither the Kissells nor the Vanes were aware of the soil conditions or the need for a piling foundation at the time of the sale. Lot 5 is zoned for residential use and the restrictive covenants of the subdivision exclude non-residential uses.
The trial court concluded that no express warranties were violated because no representations were made to the Kissells about the soil conditions and foundation requirements. Also, the trial court failed to find a mutual mistake of fact regarding the land since no express conditions were made dur-
I disagree with the trial court‘s conclusion that the Vanes and LaMarr were entitled to summary judgment on the Kissells’ claim for rescission based upon a mutual mistake of fact. Indiana allows rescission where both parties share a common assumption about a vital fact upon which they based their bargain, that assumption is false, and because of the mistake a quite different exchange of values occurs from the exchange of values contemplated by the parties. Jackson v. Blanchard (1992), Ind.App., 601 N.E.2d 411, 416. Furthermore, the mistaken fact must be one that is “of the essence of the agreement, the sine qua non.” Id. The mistaken fact must animate and control the conduct of the parties. Id.
The Kissells contend that the ability to construct a residence upon Lot 5 was a material fact going to the heart of their agreement. The Vanes and LaMarr contend the mistake is not material and not the essence of the sale because the contract does not expressly state that the Kissells bought the lot to build a residence. The Vanes and LaMarr incorrectly identify the mistake as concerning the subsoil conditions and contend that the lack of knowledge of the subsoil conditions was not the essence of the sale. Contrary to the Vanes and LaMarr‘s contentions, the mutual mistaken fact alleged is the ability to construct a residence on Lot 5.
In Franklin v. White (1986), Ind., 493 N.E.2d 161 (a familiar case because I was the trial judge), a mutual mistake of fact was established where the property was not suitable for a septic tank system when the parties had contemplated that the property would be for residential use. The supreme court affirmed the trial court‘s grant of rescission. Id. The parties’ mutual mistake that the residential subdivision lot sold for residential use was suitable for such purpose was sufficient evidence to support the action. Id. at 165. The result in Franklin directs reversal of summary judgment in the instant case.
The materials designated in the trial court‘s findings reflect that LaMarr knew the Kissells wanted to buy property to build a year-round home. In fact, LaMarr indicated that a floating crawl space foundation should be used on Lot 5. Also, the Vanes advertised the real estate as a “building lot.” The common assumption of the parties was that Lot 5 was suitable for building purposes. Instead of the Kissells buying property upon which a home could be built and the Vanes selling property at a price indicative of residential use, the result of the exchange is in dispute. The parties clearly contemplated that Lot 5 was suitable for construction of a residence, and thus, whether construction is possible is a genuine issue of material fact that precludes summary judgment.
The Vanes and LaMarr also argue that construction is not impossible, only more expensive than expected; thus, rescission is not appropriate. A buyer need not show impossibility to obtain rescission. In Franklin, rescission was granted even though some evidence speculated other tests might show construction was possible. See also Vermette v. Andersen, 16 Wash.App. 466, 558 P.2d 258 (1976) (rescission for mutual mistake notwithstanding other expensive means available to make building on property feasible). Here, the Vanes and LaMarr may be able to show at trial that a piling foundation is feasible. Because such evidence may be insufficient to defeat the Kissells’ claim in a trial on the merits, it is certainly insufficient for summary judgment.
The Vanes and LaMarr finally assert that the Kissells are not entitled to rescission because of their failure to test the subsoil before the sale or to make the sale contingent upon favorable subsoil test results. These are not requirements for a mutual mistake theory. See Franklin, 493 N.E.2d 161 (rescission available even though tests for septic tank system were performed after
The Kissells have stated a valid cause of action for mutual mistake. For summary judgment purposes, the facts and inferences most favorable to the Kissells as the nonmovants are that a house cannot be constructed on Lot 5. Because material issues of fact remain, summary judgment is improper.
I also question the stability of the trial court‘s conclusion that the Kissells’ claim of breach of implied warranty of habitability does not state a cognizable action. The Kissells contend that an implied warranty of habitability should be recognized where restrictive covenants limit the use of real estate to residential use, and at the time of the sale contemplating residential construction, the parties were unaware of the conditions inhibiting such use. The Kissells essentially seek to carve out an exception to caveat emptor in Indiana in these circumstances. Because exceptions have been adopted with regard to sales of new residences by the builder to the immediate buyer and subsequent buyers, it is not unreasonable to envision an extension of the implied warranty exception to the sale of a vacant residential lot under the present circumstances. See Theis v. Heuer (1972), 264 Ind. 1, 280 N.E.2d 300 (builder-initial purchaser); Barnes v. Mac Brown & Co. (1976), 264 Ind. 227, 342 N.E.2d 619, 620 (builder-subsequent purchasers); see also Jordan v. Talaga (1989), Ind.App., 532 N.E.2d 1174, trans. denied (developer-purchaser).
For the reasons stated above, I concur with the reversal of summary judgment.
Dawn MACON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 02A03-9302-CR-62.
Court of Appeals of Indiana, Third District.
Feb. 28, 1994.