Van Bibber Homes Sales v. Marlow

• Decision Date: 21 November 2002
• Docket Number: No. 60A01-0201-CV-33.,60A01-0201-CV-33.
• Citation: 778 N.E.2d 852
• Parties: VAN BIBBER HOMES SALES and Van Bibber Lake, Inc., Appellants-Defendants, v. Thomas and Pam MARLOW, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

778 N.E.2d 852

VAN BIBBER HOMES SALES and Van Bibber Lake, Inc., Appellants-Defendants, v. Thomas and Pam MARLOW, Appellees-Plaintiffs.

No. 60A01-0201-CV-33.

Court of Appeals of Indiana.

November 21, 2002.

Mark Small, Indianapolis, IN, Attorney for Appellants.

Michael L. Carmin, Andrews, Harrell, Mann, Carmin & Parker, PC, Bloomington, IN, Attorney for Appellees.

OPINION

MATHIAS, Judge.

Thomas and Pam Marlow ("the Marlows") purchased a Crystal Valley manufactured home from Van Bibber Home Sales ("Van Bibber") in 1999. Numerous problems developed in the home after its installation, and the Marlows filed a complaint against Van Bibber in Owen Circuit Court requesting rescission of the contract. The trial court ordered the contract rescinded, finding that the home contained numerous defects and that Van Bibber made numerous misrepresentations regarding the features to be included in the home. Van Bibber appeals raising the following issues, which we restate as:

I. Whether the trial court's finding that Van Bibber was responsible for the damage to the home caused by septic tank back-ups was supported by sufficient evidence;

II. Whether the trial court abused its discretion when it ordered rescission of the contract between the Marlows and Van Bibber;

III. Whether the Marlows waived their claim of breach of contract that was based on defects in the home; and,

IV. Whether the trial court's conclusion that rescission was an appropriate remedy due to "breach of material warranty" was contrary to law.

We affirm.

Facts and Procedural History

In 1999, after their home was destroyed by fire, the Marlows visited Van Bibber's manufactured home sales lot in Greencastle, Indiana, in addition to the lots of other dealers. In March, 1999, the Marlows met with Dwayne Van Bibber to discuss the purchase of a Crystal Valley manufactured home, and they signed a contract for purchase with Van Bibber. The home was delivered two to three weeks after the contract was executed. At the time of delivery, the Marlows had made payments to Van Bibber in the amount of $48,773.00, but still owed $6,802.00 on the contract.

As will be discussed in greater detail below, after the home was delivered, the Marlows discovered that there were numerous defects in the home and that several of the features that they ordered were installed improperly or were the wrong color. Due to those defects, on August 18, 1999, the Marlows filed a complaint against Van Bibber in Owen Circuit Court. In the complaint, the Marlows alleged that Van Bibber made numerous misrepresentations concerning the components of the home and the manner in which they would be installed, and that the home was defective because it suffered from numerous defects. Appellant's App. pp. 12-13. The Marlows requested that the trial court rescind the contract, order Van Bibber to remove the home from their property, and refund the payments they had made on the home. Appellant's App. p. 14.

A bench trial began on December 5, 2000, and continued on January 26, 2001. After receiving proposed findings of fact and conclusions of law from both parties, on November 7, 2001, the trial court entered findings of fact and conclusions of law. In its findings of fact, the trial court found the following problems and defects in the Marlows's home:

(a) due to improper installation, the home has settled and is no longer square which in turn has lead to numerous weaknesses throughout

(b) the improper connection to the septic system, with several 90 degree angles, improper fall and incorrect choice of piping has caused clogging and backup problems continually

(c) improper installation and location of skylights and ceiling fans has lead to leaks, cracks and water damage in several rooms

(d) improper installation of the carpeting and vinyl throughout house includes installation of the wrong selection, material which is pulled and bowed and pulling away from the wall in virtually every room

(e) incorrect choice of color selection of materials throughout the home includes exterior siding, carpeting and vinyl, wall trim, kitchen and bath tile, curtains, wallpaper, refrigerator, front door, kitchen sink

(f) improperly prepared and painted drywall in every room of the home has caused cracking and bowing with numerous nail pops (g) numerous problems in bath areas include improperly installed shower doors and fixtures and failure to seal or caulk whereby water damage has resulted: the vinyl has been damaged beyond repair

(h) the fireplace problem areas start with the wrong selection of tile, which is cracking and include incorrect venting, gapping [sic] fireplace doors, moisture inside the fireplace and a mantle which is bowed; the fireplace has begun to sink

(i) the exterior of the house, besides having the wrong color selection has vinyl which is bowing out, has no steps in the front, no side rails on the back steps, numerous nail pops on the roof and a precariously placed foundation; the down spouts and guttering were installed incorrectly and are clogging and retaining water

(j) ill-fitting windows in the home are hung improperly whereby some open and some do not

(k) loose or improperly installed trim, molding, thresholds and door frames have aided in the cracking of the drywall and damage to the flooring

(l) the cabinetry in the kitchen is incorrectly hung, poorly finished and cracking

Appellant's App. p. 58. Also, the trial court found that when Van Bibber connected the septic tank to the home, a temporary protective cover was dropped into the septic line, which caused repeated septic back-ups into the Marlows's home resulting in extensive damage to the floors and walls. Appellant's App. p. 59. The trial court determined that the total cost to repair the damage to the Marlows's home was $27,448. Appellant's App. p. 59.

In addition to those defects and problems with the home, the trial court found that Van Bibber made numerous material misrepresentations to the Marlows regarding the components of the home they had purchased and the manner in which it would be installed. Therefore, the trial court concluded that

[t]he contract between [the Marlows] and [Van Bibber] failed in its essential purpose by [Van Bibber's] failure and inability to deliver the mobile home as represented to [the Marlows] and by [Van Bibber's] misrepresentations regarding the features to be included in the home. [The Marlows] are entitled to rescission of the contract.

Appellant's App. p. 62. Van Bibber was ordered to remove the manufactured home from the Marlows's property, and the trial court entered a judgment of $48,773.00 against Van Bibber, which was the amount of the Marlows's total payments on the home. The trial court also ordered Van Bibber to pay the Marlows's attorney fees.

Standard of Review

The trial court entered findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A), which prohibits a reviewing court on appeal from setting aside the trial court's judgment "unless clearly erroneous." "In our review, we first consider whether the evidence supports the factual findings. Second, we consider whether the findings support the judgment." Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind.2000) (citations omitted). The trial court's judgment is "`clearly erroneous only if (i) its findings of fact do not support its conclusions of law or (ii) its conclusions of law do not support its judgment.'" Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind.2002) (quoting Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996)). Conclusions of law are reviewed de novo. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind.2002). Also, "[t]he court on appeal is to give due regard to `the opportunity of the trial court to judge the credibility of the witnesses.'" Dunson, 769 N.E.2d at 1123 (quoting Ind. Trial R. 52(A)).

I. The Septic Tank

Van Bibber argues that the trial court's finding that Van Bibber was responsible for the repeated septic tank back-ups into the Marlows's home is not supported by any evidence in the record. With regard to the septic tank, the trial court made the following findings of fact:

6. The line to connect the household plumbing to the septic tank was stubbed into the foundation space for connection by [Van Bibber]. A temporary end-cover was placed on the pipe to protect it until [Van Bibber] completed the connection.

7. [Van Bibber] permitted the temporary protective covering over the end of the septic line to be dropped into the line, causing blockage of the septic line, all unknown to [the Marlows].

8. [The Marlows] complained to [Van Bibber] about septic problems and [Van Bibber] refused to acknowledge any responsibility. After repeated septic back-ups in [the Marlows's] home, [Van Bibber] opened the septic line and the blockage was located and removed. The cure of the septic problem occurred only after [the Marlows] had suffered repeated septic backup and overflow in the residence causing damage to floors and walls.

Appellant's App. p. 59.

At trial, Dwayne Van Bibber testified that an employee of Van Bibber Homes was responsible for connecting the household plumbing to the septic tank line stubbed into the foundation. Tr. p. 304. Darrell Ashe, the independent contractor who ran the septic line through the foundation wall, testified that he placed a mortar bag over the septic line to keep mortar and other items from getting into the line before it was connected to the household plumbing. Tr. pp. 187-88. The bag was described as having paper on the outside and a thin plastic layer on the inside. Tr. p. 188. Tom Marlow testified that when the blockage in the septic tank was knocked loose, he saw something that looked like "plastic wrap or plastic." Tr. p. 309. Additionally, Mrs. Marlow's niece, Latasha Finch, testified that she saw a large piece of plastic pop out of the end of the septic line as they were attempting to remove the blockage. Tr. p. 134. This evidence is...