Grant v. Wrona

• Decision Date: 23 December 1983
• Citation: 662 S.W.2d 227
• Parties: Joy A. GRANT, Appellant, v. Theodore S. WRONA and Lorraine L. Wrona, Appellees.
• Court: Kentucky Court of Appeals

Page 227

662 S.W.2d 227

Joy A. GRANT, Appellant, v. Theodore S. WRONA and Lorraine L. Wrona, Appellees.

Court of Appeals of Kentucky.

Dec. 23, 1983.

Patricia A. Lewis, Elizabethtown, Elaine C. Duncan, Louisville, for appellant.

Thomas Stuart McCloy, Lewis, Bland & Preston, Elizabethtown, for appellees.

Before HAYES, C.J., and HOGGE and WHITE, JJ.

HAYES, Chief Judge.

On June 20, 1981, the appellant, Joy Grant, entered into a contract for deed for the purchase of a lot and house owned by the appellees, Theodore and Lorraine Wrona. The terms of the contract called for a total purchase price of $40,500.00 and a down payment of $15,000.00. An action to rescind this contract was commenced by the appellant on October 7, 1981, slightly more than three months thereafter. In her complaint, she alleged that the property had major structural defects which the appellees had concealed from her. She asked for the return of her down payment, damages incurred for moving, attorney's fees and punitive damages. On March 20, 1982, she filed an amended complaint, pleading in the alternative for damages of $20,000.00 to repair the property. She elected at trial however to seek the remedy she originally requested, that of rescission of the contract.

The matter was tried before a jury on October 29, 1982. At the close of the appellant's case, the appellees moved for and were granted a directed verdict. The trial court ruled that there was insufficient evidence, as a matter of law, to prove that the appellees had concealed or suppressed any condition of the house, or that they had any knowledge of any defects that had not been repaired. The trial court also concluded that appellant was not entitled to the relief sought as she had not offered to return the property to the Wronas prior to filing her complaint.

Our review of the evidence presented at trial indicates that the appellant did present evidence sufficient for a jury determination of the issues presented and that appellees' motion for a directed verdict should have been overruled. The only question to be determined by the court on a motion for directed verdict is whether the plaintiff has sustained the burden of proof by "more than a scintilla of evidence," that is, has the plaintiff submitted "evidence of probative value having fitness to induce conviction in the minds of reasonable men?" James v. England, Ky., 349 S.W.2d 359, 361 (1961). See also, Louisville & N.R. Co. v. Chambers, 165 Ky. 703, 178 S.W. 1041 (1915). In so ruling, "The court must draw all fair and rational inferences from the evidence in favor of the party opposing the motion, and a verdict should not be directed unless the evidence is insufficient to sustain the verdict. The evidence of such party's witnesses must be accepted as true." 7 Clay, Kentucky Practice, CR 50.01, (3rd Ed.1974). It is well settled that circumstantial evidence "will authorize a submission of the contested issue to the jury," and is capable of sustaining its verdict. Kelly v. Walgreen Drug Stores, 293 Ky. 691, 170 S.W.2d 34 (1943). Further, "it is not necessary that direct evidence of fraud be adduced" as "fraud may be established by evidence which is wholly circumstantial." Johnson v. Cormney, Ky.App., 596 S.W.2d 23 (1979).

The evidence presented by the appellant showed two major defects existed in the house at the time of purchase. First, much of the wood siding on the rear addition to the house added by the appellees, was so rotten and soft that appellant's expert witness, Cordelle Tabb, was able to insert his pocket knife into the siding with little effort. Appellant testified that this condition was concealed prior to purchase by a fresh coat of paint. Mr. Wrona admitted that he, himself, had applied the paint to the weather boarding immediately prior to putting the house on the market and shortly before appellant looked at the house. Harold Cox, an architect, testified that the deteriorated condition of the wood was due to the fact that it had been wet "for a long period of time." Mr. Wrona, however, testified that the wood was in "excellent" condition. Certainly the jury could reasonably infer from the evidence of the condition of the wood presented by the appellant and her expert witnesses, and the fact that it had been painted very recently by the appellee, Mr. Wrona, that the appellees knew of the defective condition despite their protests to the contrary. A fact issue was clearly established and the credibility of the witnesses was a matter wholly within the province of the jury. Cochran v. Downing, Ky., 247 S.W.2d 228 (1952).

The more serious defect discovered by the appellant soon after she purchased the property was the severely rotten condition of the floor joists under the house and the sill plate at the top of the foundation. Mr. Cox testified that the rot and fungus had spread throughout the wood joists, causing them to lose their structural property. He opined that the rot, dry at the time of purchase, was caused over a prolonged period by improper ventilation in the crawl space and the lack of a vapor barrier creating excess moisture. The appellees, the original owners of the house, testified that they did not know the joists were rotten; that they did not conceal the joists from the appellant; and in fact, that appellant took a flashlight and looked inside the crawl space opening prior to purchase; that to their knowledge any problems caused by the closed ventilation and lack of a vapor barrier, conditions they admitted existed under the house from the time the house was built in 1973 until 1979, had been repaired. In 1979, Mrs. Wrona noticed the floors were sagging and receding from the wall. She notified the original builder who discovered that the central beam was cracked. The appellees instructed him to repair the beam, install a vapor barrier and open the vents. According to the appellant's experts, those repairs corrected the problem of excess moisture but did nothing to stop the spread of rot. Considering the length of time the problem with the joists existed, the repairs the appellees had made, and the serious and extensive nature of the problem, the jury could have inferred that the appellees had knowledge of the defect. As this court has previously reasoned, "even though each bit of circumstantial evidence in and of itself may seem trivial and unconvincing, the combination of all the circumstances...