Choung v. Iemma
| Decision Date | 16 March 1999 |
| Docket Number | No. 71A04-9806-CV-288,71A04-9806-CV-288 |
| Citation | 708 N.E.2d 7 |
| Parties | Suyoung CHOUNG, Appellant-Plaintiff, v. Lillian M. IEMMA, Anthony J. Iemma, Karl Hammond d/b/a Hammond Construction Co., Advanced Home Condition Analysis Co., Lena Howard and B & F Realty, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Appellant-plaintiff Suyoung Choung ("Choung") appeals from the trial court's grant of summary judgment in favor of appellees-defendants Lillian Iemma, Anthony J. Iemma, Karl Hammond d/b/a Hammond Construction Co., B & F Realty, and Lena Howard following Choung's suit for damages for breach of an implied warranty of fitness for habitation, fraud and negligence. 1
Choung raises three issues for our review which we restate as:
(1) whether the trial court erred in granting summary judgment in favor of the Defendants because genuine issues of material fact existed regarding Choung's claims for breach of the implied warranty of habitability, fraud and negligence;
(2) whether the Defendants were under a duty to inform Choung the property had been relocated and placed on a rebuilt foundation; and
(3) whether the "AS IS" waiver provision in the land contract precluded Choung from bringing any causes of action, including fraud, for any defects or deficiencies in the property.
The facts relevant to the appeal are that Choung signed a purchase agreement with Lillian Iemma ("Lillian") on October 13, 1992 to purchase certain real estate owned by Lillian, commonly known as 57804 County Road 13, Elkhart, Indiana, for the price of $105,000.00. Paragraph eight (8) of the purchase agreement permitted Choung to seek a professional, independent inspection of the condition of the real estate and its improvements. If Choung requested such an inspection, the inspection was to be listed under "further conditions" of the offer to purchase. Paragraph 18 of the purchase agreement provided that a complete home inspection was to be done within five days after acceptance of the offer and approved by Choung. Anthony Iemma ("Anthony") handled this transaction as Lillian's attorney-in-fact. B & F Realty, represented by their agent Lena Howard ("Lena"), was the listing broker for this transaction. On October 17, 1992, Lena commissioned Advanced Home Condition Analysis Co. ("Advanced Home") to perform a home condition inspection on the property at 57804 County Road 13, which was approved by Choung upon completion. On October 22, 1992, Choung, Lillian, and her attorney Anthony held a closing to the transaction by executing a purchaser's closing statement and a land contract.
At the closing, Choung signed a land contract that contained an acknowledgment that Advanced Home had inspected the premises and that "[a]ll items of deficiency or commented upon that need to be cured are hereby waived by Purchaser [Choung] and Purchaser has received adequate consideration and discount off the purchase price to make all necessary repairs." The land contract also contained a provision that: "Vendor [Lillian] makes no warranties of habitability and sells the premises 'AS IS'." The purchase agreement contained a similar provision: "[t]his property purchased in AS IN NOW CONDITION." According to Choung, Lillian's house had been relocated from the U.S. Route 20 bypass to its present location and had been placed on a newly constructed foundation built by Karl Hammond d/b/a Hammond Construction Co. ("Hammond Construction"). Choung maintains that he was never informed by any party involved in this transaction that the property had been moved from another location or that the property had been placed upon a newly constructed foundation. The only disclosure made to Choung about the property was contained in the listing advertisement from Lena and B & F Realty stating that the house was a "1992 Rebuilt Walkout Ranch on Elkhart River." However, Anthony, by affidavit, and Lena, by deposition, both stated that they informed Choung at closing that the property had been relocated. Anthony also contends that a price adjustment for the relocation was made.
After Choung purchased the real estate, he began to experience numerous problems. He suffered damage to the house, including but not limited to water flooding; high levels of E. Coli bacteria from the flood water intrusion; cracks in the garage floor; bulging of lower level exterior walls; incorrect footing depth; incorrect drainage for footers; and incorrect placement of the septic system. Choung attributed these problems to the relocation of the house onto a faulty foundation built by Hammond Construction. Upon discovery of these defects, and within one year of the transaction, Choung, through his attorney, gave written notice to Lillian and Anthony and requested that they cure the defects; they did not.
On October 7, 1994, Choung filed a complaint for breach of an implied warranty of fitness for habitation, also known as an "implied warranty of habitability," against the Defendants. Choung sought both compensatory and punitive damages for his alleged damages. The Defendants separately denied Choung's allegations and filed motions for judgment on the pleadings pursuant to Ind. Trial Rule 12(C), arguing that no implied warranty of habitability existed. The trial court granted a judgment on the pleadings for Lena and B & F Realty but denied the motions for Lillian, Anthony and Hammond Construction. On April 13 and June 6, 1995, Choung filed motions for leave to amend his complaint, which were granted. Choung then filed an amended complaint against the Defendants seeking damages for breach of the implied warranty of fitness for habitation, fraud, negligence, and negligence in the inspection and analysis against Advanced Home. In his complaint, Choung alleged that (1) the Defendants breached the implied warranty of habitability because the inherent defects in the home's condition and structure caused by the faulty foundation were latent; (2) the Defendants fraudulently misrepresented and concealed the fact that the house had been moved and placed upon a new foundation; (3) Lillian, Anthony and Hammond Construction negligently constructed the foundation to the house, together with the garage floor, drainage for the footers, and the incorrect placement of the septic system; and (4) Advanced Home's negligent inspection of the home resulted in Choung suffering damages to his property.
On July 28, 1997, Lillian, Anthony, Hammond Construction, Lena, and B & F Realty filed a joint motion for summary judgment. A hearing on this matter was held on September 11, 1997. On January 29, 1998, the trial court granted the Defendants' motion for summary judgment. The trial court held that Choung had purchased the property "AS IS"; the land contract signed by Choung and Lillian specifically provided that an inspection had been conducted and waived all items of deficiency in consideration of the discounted purchase price; Choung waived all causes of action against the Defendants; and there was no representation by the Defendants that the property had never been moved.
Choung first argues there were genuine issues of material fact regarding the Defendants' liability for breach of the implied warranty of habitability, fraud and negligence sufficient to preclude summary judgment in their favor. The purpose of summary judgment is to end litigation about which no factual dispute exists and which may be determined as a matter of law. Luider v. Skaggs, 693 N.E.2d 593, 595 (Ind.Ct.App.1998), trans. denied. When reviewing a trial court's ruling on a motion for summary judgment, this Court applies the same standard as the trial court. Id. On appeal, this Court must determine whether there is a genuine issue of material fact and whether the law has been correctly applied by the trial court. City of Elkhart v. Agenda: Open Government, Inc., 683 N.E.2d 622, 625 (Ind.Ct.App.1997), trans. denied (1998).
Summary judgment is appropriate only if the designated evidentiary material shows that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Wolf v. Boren, 685 N.E.2d 86, 87 (Ind.Ct.App.1997), trans. denied (1998). The party moving for summary judgment bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Luider, 693 N.E.2d at 595. Once a movant meets these two requirements, the burden then shifts to the non-moving party to set forth specifically designated facts showing the existence of a genuine issue. Id. We resolve any doubts as to any facts or inferences to be drawn therefrom in favor of the non-moving party. Id.
Choung suggests there are genuine issues of material fact, specifically disputing Anthony's contentions that: (1) he was informed that the house was relocated and rebuilt; (2) the purchase price was discounted accordingly; and (3) he waived any future claims on the house. However, despite a conflict on some elements of a claim, summary judgment may be proper when no dispute exists with respect to the facts which are dispositive of the litigation. Id. We conclude the trial court correctly determined there were no genuine issues as to any material fact regarding the Defendants' liability and that they had no liability in this matter.
Choung and Lillian signed a purchase...
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