Hidden Valley Lake, Inc. v. Kersey
Decision Date | 08 June 1976 |
Docket Number | No. 1--775A125,1--775A125 |
Parties | HIDDEN VALLEY LAKE, INC., Appellant (Defendant below), v. Alfred KERSEY and Rebecca Kersey, Appellees (Plaintiffs below). |
Court | Indiana Appellate Court |
Leslie Duvall, Sparrenberger, Duvall, Tabbert & Lalley, Indianapolis, William r. Pfister, Bielby & Pfister, Lawrenceburg, for appellant.
William R. Wilson, Hooper, Wilson & Hoffman, Lawrenceburg, Bobby Jay Small, Indianapolis, for appellees.
Defendant-appellant Hidden Valley Lake, Inc. appeals from a judgment on a jury verdict in favor of plaintiffs-appellees Alfred and Rebecca Kersey on their complaint for damages arising from the construction of a collector sewer line on the Kersey's real estate. The following issues are presented for review:
(1) Whether the Kerseys waived any claim for damages arising from the construction of the sewer line.
(2) Whether the verdict was supported by sufficient evidence.
(3) Whether the damages were excessive.
The evidence most favorable to appellees reveals that on or about June 23, 1971, plaintiffs and defendant entered an installment contract for the sale of lot 49 in Hidden Valley Lake Subdivision in Dearborn County. The contract provided a deferred payment price of $5627.50, and disclosed that plaintiffs had tendered a cash down payment of $1095, leaving an unpaid balance of $4532.50 to be paid in 35 consecutive monthly installments of $126 beginning on August 20, 1971. The contract further provided that defendant would retain legal title to the parcel of real estate until such time as plaintiffs had completed their payment obligation, and that at that time defendant would convey the lot to plaintiffs by warranty deed. The contract noted various restrictive covenants which would be contained in the warranty deed. Of importance in the case at bar is the following restrictive covenant:
The warranty deed from defendant to plaintiffs was executed by defendant on June 23, 1971, and recorded by plaintiffs on April 10, 1973. The record however, does not reveal when the deed was delivered to plaintiffs.
The deed contained inter alia the following restrictive covenant:
(Emphasis added.)
It should be noted that the waiver of damage provision contained in the deed was not mentioned in the contract.
On or about September 1, 1971, plaintiffs discovered that a sewer collector line had been installed along the entire length of lot 49. During the installation of said sewer line on lot 49, thirty-two (32) trees of various sizes...
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...(1978) Ind.App., 376 N.E.2d 1159; Ertel v. Radio Corp. of America, (1976) 171 Ind.App. 51, 354 N.E.2d 783; Hidden Valley Lake, Inc. v. Kersey, (1976) 169 Ind.App. 339, 348 N.E.2d 674; Ingmire v. Butts, (1975) 166 Ind.App. 139, 334 N.E.2d 701. Reversal is not justified if the amount awarded ......
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