Fimbel v. DeClark, No. 71A03-9707-CV-259

Docket NºNo. 71A03-9707-CV-259
Citation695 N.E.2d 125
Case DateApril 28, 1998
CourtCourt of Appeals of Indiana

Page 125

695 N.E.2d 125
Ronald C. FIMBEL and Patricia A. Fimbel, Appellants-Defendants,
v.
Thomas L. DeCLARK, Joan C. DeClark and Gena M. Logli,
Appellees-Plaintiffs.
No. 71A03-9707-CV-259.
Court of Appeals of Indiana.
April 28, 1998.
Transfer Denied Sept. 23, 1998.

Page 126

Rochelle S. Meyers, Fred R. Hains, Fred R. Hains & Associates, South Bend, for Appellants-Defendants.

Paul T. Cholis, South Bend, for Appellees-Plaintiffs.

Page 127

OPINION

STATON, Judge.

Ronald and Patricia Fimbel appeal from a judgment in favor of Thomas and Joan DeClark and Gena Logli ("DeClarks"). The trial court concluded that the DeClarks were entitled to rescission of the contract for the purchase of real estate from the Fimbels, including the return of the contract price and damages associated with the purchase of the real estate. On appeal, the Fimbels contend that the evidence is insufficient to sustain the finding that they fraudulently misrepresented the suitability of the real estate for home construction.

We affirm.

Our test for sufficiency of the evidence requires that we neither weigh the evidence nor resolve questions of credibility. We look only to the evidence of probative value and the reasonable inferences to be drawn therefrom which support the judgment. Bright v. Kuehl, 650 N.E.2d 311, 315 (Ind.Ct.App.1995) (citing Martin v. Roberts, 464 N.E.2d 896 (Ind.1984)), reh. denied, trans. denied.

The facts relevant to this appeal and most favorable to the judgment are that the Fimbels own two contiguous lots on Lake Latonka in Plymouth, Indiana. The lots were purchased with the intention of building a lake cottage on them. However, in 1992 the Fimbels discovered that a home could not be constructed on the lots since the soil was unsuitable for a septic system. Alternative septic arrangements were available at that time for $7,500 to $8,000 plus the cost of additional land. 1 It would cost $1,000 for a study to determine whether an alternate septic arrangement was feasible, but the Fimbels never fully investigated these options.

In April 1994, the Fimbels decided to sell the two lots. The Fimbels set up a meeting with all interested buyers, which included the DeClarks. Mr. DeClark placed a $1,000 deposit on the property after viewing the property for approximately one-half hour. The Fimbels never disclosed the unsuitable condition of the soil for a septic system. One week after closing, the DeClarks discovered the problems detailed above. The trial court found that the Fimbels fraudulently misrepresented the character of the lots by not disclosing the condition of the soil, and granted the DeClarks rescission of the real estate contract and damages. This appeal ensued.

To constitute a valid claim for fraud the party must prove there was a material misrepresentation of past or existing facts made with knowledge or reckless ignorance of its falsity, and the misrepresentation caused reliance to the detriment of the person relying upon it. Adoptive Parents of M.L.V. v. Wilkens, 598 N.E.2d 1054, 1058 (Ind.1992). Too, "the failure to disclose all material facts by one on whom the law imposes a duty to disclose constitutes actionable fraud." The First Bank of Whiting v. Schuyler, 692 N.E.2d 1370, 1372 (Ind.Ct.App.1998); Fleetwood Corp. v. Mirich, 404 N.E.2d 38, 42 (Ind.Ct.App.1980). The Fimbels rely on several different theories in attacking the sufficiency of the evidence.

Initially, the Fimbels contend that they cannot be held liable in fraud for failing to disclose the soil condition of the lots since they were under no duty to do so. "Ordinarily a seller is not bound to disclose any material facts unless there exists a relationship for which the law imposes a duty of disclosure." Indiana Bank & Trust v. Perry, 467 N.E.2d 428, 431 (Ind.Ct.App.1984). Courts have found such a relationship, and therefore a duty to disclose, where the buyer makes inquiries about a condition on, the qualities of, or the characteristics of the property. See id.; Thompson v. Best, 478 N.E.2d 79 (Ind.Ct.App.1985), reh. denied, trans. denied. When a buyer makes such inquiries, it becomes incumbent upon the seller to fully declare any and all problems associated with the subject of the inquiry. Thompson, 478 N.E.2d at 84.

In this case, the evidence supports the conclusion that the DeClarks and Fimbels had...

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20 practice notes
  • Teer v. Johnston, 1081613.
    • United States
    • Supreme Court of Alabama
    • September 30, 2010
    ...(1994); Richey v. Patrick, 904 P.2d 798 (Wyo.1995); Black v. Cosentino, 117 Ohio App.3d 40, 689 N.E.2d 1001 (1996); Fimbel v. DeClark, 695 N.E.2d 125 (Ind.Ct.App.1998); Dyke v. Peck, 279 A.D.2d 841, 719 N.Y.S.2d 391 (2001); and Fletcher v. Edwards, 26 S.W.3d 66 (Tex.Ct.App.2000). Many more ......
  • Hines v. State, No. 52S05–1408–CR–563.
    • United States
    • Indiana Supreme Court of Indiana
    • May 19, 2015
    ...in themselves to constitute separate criminal offenses may be so compressed ... as to constitute a single transaction.” See Nunn, 695 N.E.2d at 125 (citing Eddy, 496 N.E.2d at 28 and Thompson v. State, 441 N.E.2d 192, 194 (Ind.1982) ). In Eddy and Thompson. we limited our analysis to whethe......
  • Powell v. State, Supreme Court Case No. 19S-CR-527
    • United States
    • Indiana Supreme Court of Indiana
    • August 18, 2020
    ...the flaws in this approach). To be sure, there may be some cases in which—intuitively, at least—the question is an easy one. See Nunn , 695 N.E.2d at 125 (rejecting the idea that a defendant, having fully discharged an automatic weapon with a fifty-round clip in "one burst," could be charge......
  • McQueen v. Yamaha Motor Corp., U.S.A., Civil No. 19-2559 (DWF/BRT)
    • United States
    • U.S. District Court — District of Minnesota
    • September 21, 2020
    ...N.W.2d 682, 695 (Minn. 2014) (citing Klein v. First Edina Nat'l Bank , 293 Minn. 418, 196 N.W.2d 619, 622 (1972) ); Fimbel v. DeClark , 695 N.E.2d 125, 127 (Ind. Ct. App. 1998). However, special circumstances may trigger a duty to disclose material facts. Id . Such special circumstances inc......
  • Request a trial to view additional results
20 cases
  • Teer v. Johnston, 1081613.
    • United States
    • Supreme Court of Alabama
    • September 30, 2010
    ...(1994); Richey v. Patrick, 904 P.2d 798 (Wyo.1995); Black v. Cosentino, 117 Ohio App.3d 40, 689 N.E.2d 1001 (1996); Fimbel v. DeClark, 695 N.E.2d 125 (Ind.Ct.App.1998); Dyke v. Peck, 279 A.D.2d 841, 719 N.Y.S.2d 391 (2001); and Fletcher v. Edwards, 26 S.W.3d 66 (Tex.Ct.App.2000). Many more ......
  • Hines v. State, No. 52S05–1408–CR–563.
    • United States
    • Indiana Supreme Court of Indiana
    • May 19, 2015
    ...in themselves to constitute separate criminal offenses may be so compressed ... as to constitute a single transaction.” See Nunn, 695 N.E.2d at 125 (citing Eddy, 496 N.E.2d at 28 and Thompson v. State, 441 N.E.2d 192, 194 (Ind.1982) ). In Eddy and Thompson. we limited our analysis to whethe......
  • Powell v. State, Supreme Court Case No. 19S-CR-527
    • United States
    • Indiana Supreme Court of Indiana
    • August 18, 2020
    ...the flaws in this approach). To be sure, there may be some cases in which—intuitively, at least—the question is an easy one. See Nunn , 695 N.E.2d at 125 (rejecting the idea that a defendant, having fully discharged an automatic weapon with a fifty-round clip in "one burst," could be charge......
  • McQueen v. Yamaha Motor Corp., U.S.A., Civil No. 19-2559 (DWF/BRT)
    • United States
    • U.S. District Court — District of Minnesota
    • September 21, 2020
    ...N.W.2d 682, 695 (Minn. 2014) (citing Klein v. First Edina Nat'l Bank , 293 Minn. 418, 196 N.W.2d 619, 622 (1972) ); Fimbel v. DeClark , 695 N.E.2d 125, 127 (Ind. Ct. App. 1998). However, special circumstances may trigger a duty to disclose material facts. Id . Such special circumstances inc......
  • Request a trial to view additional results

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