Johnson v. Naugle
| Decision Date | 06 August 1990 |
| Docket Number | No. 88A01-8910-CV-426,88A01-8910-CV-426 |
| Citation | 557 N.E.2d 1339 |
| Parties | Denver and Carol JOHNSON, Appellants (Defendants Below), v. Thomas and Barbara NAUGLE, Appellees (Plaintiffs Below). |
| Court | Indiana Appellate Court |
Thomas A. Berry, Berry & Mills, Bloomington, David A. Reidy, Jr., Gosport, for appellants.
Thomas J. Lantz, Montgomery, Elsner & Pardieck, Seymour, for appellees.
Denver and Carol Johnson appeal the judgment of the trial court finding them liable to Thomas and Barbara Naugle for the cost of repairing certain defects in the property known as "Holland House" purchased by the Naugles from the Johnsons. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
In the fall of 1987, Barbara and Thomas Naugle, having decided to move from their home in Arizona, visited various properties in Lawrence and Monroe Counties in Indiana. One such property was the home of Denver and Carol Johnson which was known as Holland House and was originally built in 1862. The Johnsons had owned Holland House since 1985 and had completed significant renovation work on the house during the intervening years. The Naugles visited Holland House on two occasions in October, 1987, during which they inspected the house, outbuildings, and surrounding acreage. The Naugles also made specific inquiries concerning the condition of the house in response to which the Johnsons assured the Naugles that Holland House had new wiring and that the furnace was only two years old and provided the house with adequate heat. The Johnsons also stated that Holland House had no defects or problems.
The Naugles agreed to purchase Holland House from the Johnsons for $125,000. The parties entered into a purchase agreement whereby the risk of loss for damage to the property remained with the Johnsons until closing. After the parties entered this agreement, the fireplace, hearth, and supporting floor were damaged by fire. The Johnsons made some repair effort, but did not inform the Naugles of the event. The Naugles later found the Johnsons' repair efforts to be inadequate. Closing took place in January, 1988. Two days after closing Denver Johnson telephoned the Naugles and informed them that the furnace was inadequate and needed to be upgraded.
Shortly after moving into Holland House in late March, 1988, the Naugles discovered the following defects in the home:
1) The furnace was at least ten years old and was probably inadequate to heat the house. Furthermore, the ductwork in the downstairs portion of the house was inadequate and, in the upstairs portion of the house, was inoperable.
2) The propane gas water heater was inoperable.
3) A single wallpipe connected the gas furnace, propane gas water heater, and fireplace to the flue, and this wallpipe was located within one or two inches of a floor joist causing the joist to be charred and weakened. Also, having only a single pipe had caused creosote to build up in the gas appliances creating a fire hazard. Finally, having a single wallpipe was in violation of building and fire codes in the State of Indiana.
4) The electrical wiring in the house was defective in places.
5) The floor joists and beams were infected with dry rot and termites. Certain joists were damaged by fire.
6) The supporting beams of the porch were rotted.
7) The fireplace had been damaged by fire, apparently the fire which took place after the closing.
8) The septic system was defective.
9) The pond located on the property failed to hold water. The Naugles spent $12,350.05 to repair the listed defects.
On June 24, 1985, the Naugles filed suit against the Johnsons alleging fraud in the sale of real estate. The Naugles later amended their complaint against the Johnsons adding a claim for treble damages. The cause was tried before a jury on June 27-29, 1989. On June 29, 1989, the jury returned a verdict in favor of the Naugles for $43,627.83 which included $12,000 in actual damages, $10,500 in exemplary damages, $110 in court costs, $19,000 in reasonable attorney fees, and $2,017.83 for "costs of collection." On July 28, 1989, the Johnsons filed a motion to correct error which was subsequently denied by the trial court. Further facts will be recited as necessary to this opinion.
The Johnsons first contend that the trial court committed reversible error in instructing the jury that damages could be measured by the cost of repairing any defects on the property rather than by determining the difference between the true value of the property and its value as represented by the seller. The Naugles claim that the Johnsons waived their right to appellate review of this issue for several reasons.
The Naugles claim that the Johnsons failed to make a specific objection to the giving of the court's instruction on assessing damages. 1 Ind.Trial Rule 51(C) states:
"No party may claim as error the giving of an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."
Counsel for the Johnsons made the following statement prior to the court's instructing of the jury:
Record at 746. We note that an objection which is not specific preserves no error on appeal. Reynolds v. Strauss Veal, Inc. (1988), Ind.App., 519 N.E.2d 226, 228 trans. denied; Dunkelbarger Construction Co. v. Watts (1986), Ind.App., 488 N.E.2d 355, 358; see also Lund v. State (1976), 264 Ind. 428, 345 N.E.2d 826; Harper v. Goodin (1980), Ind.App., 409 N.E.2d 1129; Brown v. Indiana Dept. of Conservation (1967), 140 Ind.App. 638, 225 N.E.2d 187, trans. denied; Lee v. Dickerson (1961), 131 Ind.App. 422, 171 N.E.2d 698.
The Johnsons argue that the objection cited above is specific because it refers back to the argument to the court made by the Johnsons' counsel when he moved for judgment on the evidence. At that time an extensive discussion took place concerning whether or not the cost of repairing the defects in Holland House was an inappropriate measurement of damages. Although they cite no authority on point, we assume that the Johnsons are attempting to liken their bare-boned assertion, "we would ask the court to note for the record our objection to court's final number seven and final number eight," to the defense counsel's objection to testimony in the case of Kail v. State (1988), Ind.App., 528 N.E.2d 799, 804-05, trans. denied. In that case this court held the defendant's continuing objection was sufficient to preserve error where a hearing on a motion to suppress was conducted on the day of trial and was included in the record on appeal. In addition, the trial court was informed that the objection was a renewal of the objection made earlier that day at the suppression hearing, and the defendant requested specifically that rather than repeating himself each time, the court show a continuing objection had been made. The trial court agreed to do so, and this court held the objections to be sufficient.
However, unlike the Kail case, here counsel failed to specifically connect the Johnsons' objections to the trial court's instructions to the discussions held on the Johnsons' motion for judgment on the evidence. Furthermore, the Johnsons never sought to have their objection accepted as a continuing objection. Therefore, we hold the Johnsons' objection to the trial court's instruction to be insufficiently specific to warrant review. 2
The Johnsons next claim that the trial court erred in denying their motion for judgment on the evidence made at the end of the Naugles' case-in-chief. Our standard of review for a challenge to a ruling on a motion for judgment on the evidence is the same standard utilized by the trial court in making its decision. We look only to the evidence and reasonable inferences therefrom most favorable to the nonmoving party. The motion should be granted only where there is a complete failure of proof, that is where there is no substantial evidence or reasonable inference from the evidence supporting an essential element of the claim. Whisman v. Fawcett (1984), Ind., 470 N.E.2d 73, 79; First Bank and Trust Co. v. Bunch (1984), Ind.App., 460 N.E.2d 517, 518-19, trans. denied. The Johnsons claim that in order to collect damages for fraud in the sale of real estate, the Naugles were required to present evidence tending to show the difference between the value of their home as represented by the Johnsons and the value of the home as it actually existed. Furthermore, according to the Johnsons, the Naugles' failure to put forth any evidence tending to show the difference in the value of Holland House translated into a failure to demonstrate an element necessary to an action of fraud, and judgment should have been entered in favor of the Johnsons when the Naugles closed their case-in-chief without demonstrating the necessary elements. The Naugles do not contend that they put forth the evidence deemed requisite by the Johnsons. Rather the Naugles claim that the evidence relating to the difference in the value of Holland House did not have to be presented in terms of before and after appraisals, but could be demonstrated by putting into evidence the cost of the repairs made by the Naugles. Such evidence, according to the Naugles, was sufficient to meet the damages element for a claim of...
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