Thompson v. Best

• Court: Indiana Appellate Court
• Writing for the Court: MILLER
• Citation: Thompson v. Best, 478 N.E.2d 79 (Ind. App. 1985)
• Decision Date: 20 May 1985
• Docket Number: No. 4-284A48,4-284A48
• Parties: Samuel THOMPSON, Appellant (Plaintiff Below), v. William M. BEST, Jr., and Judith D. Best, Husband & Wife, Appellees (Defendants Below).

Page 79

478 N.E.2d 79

Samuel THOMPSON, Appellant (Plaintiff Below), v. William M. BEST, Jr., and Judith D. Best, Husband & Wife Appellees (Defendants Below).

No. 4-284A48.

Court of Appeals of Indiana Fourth District.

May 20, 1985.

Dock McDowell, Jr., Gary, for appellant.

Robert M. Corbin, Walker, Fleming, Corbin & Greenberg, Merrillville, for appellees.

MILLER, Presiding Judge.

Samuel Thompson believes he should be compensated for having purchased a house which, without his knowledge, has severe flooding problems. The sellers, William Best and Judith Best, deny any wrongdoing on their part and insist they not be held liable. After hearing Thompson's case-in-chief against the Bests on allegations of fraud, the trial court determined Thompson had not made a case sufficient to go to the jury and granted the Bests' motion for judgment on the evidence. The record reveals Thompson presented evidence on all the essential elements of actual fraud, and the trial court erred in determining to the contrary. Reversed and remanded for a new trial.

ISSUES

Thompson has offered reversible error in the following proposition:

Whether the trial court erred in granting the Bests' motion for judgment on the evidence after Thompson presented his evidence of fraud. ¹

FACTS

In late 1980, Thompson was seeking a home bigger than the one he already occupied and in his quest saw the Bests' home, in Gary, was for sale. The Bests allowed him to briefly tour their house although they expressed some reservations about the propriety of this because they felt perhaps their agent should be present. Regardless, Thompson got only a cursory view of the house before he returned for a second visit with the Bests' agent a couple of days later. This second visit took about fifteen minutes and shortly thereafter, on December 8, Thompson made an offer on the house by completing, but not signing, an agreement to purchase.

Within a month of Thompson's second visit, evidently in January, he toured the Bests' home a third time at which point Thompson and Best entered into a discussion about the sump pump in the basement and the footing tiles around the house. Thompson testified that during this conversation he specifically asked Best if he had a water problem with the house and Best said he had none. Thompson was soon to believe differently.

At some date which is not clear (because the evidence was not transmitted to this court), Thompson and the Bests settled on a price for the house, and Thompson signed the purchase agreement. The deal was closed on April 14, 1981, and Thompson took possession in May. As Thompson moved in, he discovered a second pump well in a crawl space in the basement, which well had previously been covered by the Bests' belongings stored in the crawl space and which Thompson had therefore been unable to see upon prior inspection. Thompson questioned Best about this well in the center of the devastated floor. Best explained he had had a water problem before, some snafu with water run-off and gutters, and that this second pump well had been dredged to cure the problem. He again denied there was any water problem in the house.

Thompson left it at that until, within two weeks of moving in, he discovered the carpeting in the basement was wet. He then noticed that the sump pump was constantly running, and that if for any reason, it did not, water would rise up to knee level in the basement within minutes. Upon his independent investigation, Thompson discovered that some of his new neighbors had water problems in their basements too so he began to have experts come out to examine the problem.

Lawrence DuBose, a civil engineer specializing in ground water studies, observed water percolating to the surface of Thompson's lawn and 1/2" of water in the basement. He testified the basement had been built below the ground water table thereby creating a circumstance for water to constantly enter the drain tiles, forcing the sump pump to continually work because its well would otherwise fill within five minutes and further forcing water to come in the basement walls. DuBose stated that years with rainfall as heavy as the spring of 1981, when Thompson discovered his problem, would also have created problems for the previous owner. In this case, just such a year was 1972, when the Bests put their house up for sale unsuccessfully the first time. (The second time it was unsuccessfully put on the market was in 1978, another year of above-average rainfall.) DuBose also speculated that even one heavy rainfall would probably have raised the water table sufficiently to cause flooding. He thus concluded the previous owner would have experienced water problems too.

Howard Dillabaugh, a structural mover (raises and moves houses), inspected Thompson's home when there were seven inches of water in the basement. He opined that the water movement in and out of Thompson's basement was driving sand from under the foundation and that the house could be settling even deeper.

R.J. McClelland, a drainage inspector from the Lake County Surveyor's office, found 1/2-1" of water in Thompson's basement (even though it had not rained for some time), water marks along the walls, and water seeping in through a crack in the floor. He explained the problem as being a cycle of water being drained from the lawn then pumped out of the basement back onto the lawn, where the cycle repeated itself, and that it had existed for some time.

One of Thompson's most damaging witnesses was William Hayden. Hayden is a waterproofing contractor who said Thompson's was one of the worst basements he had ever seen in his thirty years' of business. In his opinion, based on his experience and the fact he himself lived only five blocks away, the condition began shortly after the house was built. He testified the subdivision where Thompson lived had been a swamp before it had been developed and that many homes in that area have water problems. Upon cross-examination by defense counsel, Hayden declared "it's not possible" that there was no water problem for the Bests before 1981, when Thompson's saga began.

Charles Walker of the U.S. Soil Conservation Service also inspected Thompson's property. After making soil bores, he found the soil there showed the existence of a high water table which fluctuated during the year and left evidence therein by depositing calcium. He testified that particular soil is an inherent characteristic of such rise and fall and mottling by the calcium had always existed, i.e. was not just a recent phenomenon.

There were miscellaneous other witnesses who testified to other singular facts, such as Michael Varso, a neighbor who saw the Bests when they excavated to put in a new tile around their home but refused to talk to him about it; neighbor Catherine Haggerstrom who said she has experienced water problems in her own home because of the water table level for 8-10 years; and finally, Quvella McGowan, a general construction contractor of the opinion that the leakage problems had existed from the time the house had been built because he had been unable to detect any structural changes made since then.

As a result of this lack of proper drainage, Thompson has experienced periodic flooding in his basement of major proportions, except in winter when the water table is lower (and which was, notably, the season when he inspected the house for purchase). He declares his basement is unlivable and has cramped his five children, who have no place to play. Mrs. Thompson has been ill ever since she moved in the house and has been hospitalized with pneumonia, evidently from her constant exposure to the hazards in the basement. The remedies available are of all types of expensive and far-reaching effects (such as a neighborhood storm drain) but the general consensus of opinion among almost all the experts was that the house should be raised--a solution with a $40,000 price tag for a house costing $57,000.

At the close of Thompson's case, the Bests moved for judgment on the evidence, which the trial court granted, commenting in part as follows:

"Now, Mr. Thompson is obligated as a buyer, he's owned a former home, he comes to buy a home, he's obligated to take notice of the geographic level, the fact that there's no storm sewers, there's low ground, the property is on level property and maybe no natural runoff.... The way the evidence shows there's a high water table there. There's no evidence the Defendants concealed the fact that there may be a high water table. There's no question Plaintiff in this lawsuit has had a lot of problems since then, maybe the sump not working or the tile around the bottom is clogged up and that's not doing a sufficient job. For whatever reason, she's had a problem and he's had water, but he made the offer right after he looked at the place. Here's where we have a problem: You know there's a sump pump there and it's there for a purpose. I suppose it's there to take out water if water happens to come in the basement in wet times, or all the time or whatever. It's there. When you say there's no water problem, the way the Court assumes is meant by that by Mr. Best is hey, as long as the sump pump is working and the perimeter tile is working, our basement has been dry. I think the gist of the whole case is there's no evidence while the Defendants owned this home that they had water in the basement, that there was any terrific problem or any problem. I don't have one witness to say that. I don't have any Plaintiff's expert to say that's the case...."

Record, pp. 237-38. The jury was dismissed.

DECISION

The procedural posture of this case--an appeal from a judgment on the evidence--requires that we at least briefly recall our standard of reviewing such a judgment. A judgment on the evidence is granted, in cases such as the one before us, "[w]here all or some of the issues in a case tried before a jury ... are not supported by sufficient...