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A couple alleging fraudulent misrepresentation in their purchase of a home has failed to convince the Court of Appeals of Indiana that the jury was improperly instructed or that the verdict in favor of the sellers was not supported by the evidence.
The dispute began in 2017, when Zachary and Lauren Zitzka purchased a house from William and Jill Brogdon. Lauren was involved in the purchasing process and was included on the deed and certain closing documents, but she was not listed on the purchase agreement.
The house has a three-season room that was added in 1988. A corner of the room sunk about four inches over the years, causing the floor to slope and put stress on the rest of the room.
The Zitzkas had hoped to convert the room to a four-season room, but shortly after closing on the house, they were told that an upgrade wasn’t possible due to the sloping. That meant they would have to start from scratch if they wanted a four-season room.
Several months later, the Zitzkas sued the Brogdons for fraudulent misrepresentation, arguing that the sinking and sloping of the three-season room was a “structural problem” that should have been disclosed. The Zitzkas testified that they had visited the house three times before buying it but hadn’t learned of the sloping until after closing.
But Doug Homeier, an engineer, testified during cross-examination that an average person could walk into the room and clearly see the skewed windows and sunken floor.
The Brogdons asked the Lake Superior Court to give Indiana Model Civil Jury Instruction 3109, which addresses the reasonable-reliance element of fraudulent misrepresentation. The Zitzkas’ attorney objected, claiming it was an incorrect statement of law as it applies to the Real Estate Disclosure Act.
The Lake Superior Court overruled the objection, and the jury returned a general verdict for the Brogdons.
The Brogdons then moved for an award of attorney fees, which the trial court granted, ordering the Zitzkas to pay $80,770.
The Zitzkas appealed, first raising the issue of whether the trial court erred in giving Indiana Model Civil Jury Instruction 3109.
The court looked at Johnson v. Wysocki, 990 N.E.2d 456 (Ind. 2013), in affirming.
“Because reasonable reliance is an element of a fraudulent-misrepresentation claim based on a disclosure form, the Buyers’ attorney was wrong when he argued to the trial court that giving Model Instruction 3109 would be ‘adding an element to my clients’ claims,’ and the court properly gave the instruction,” Judge Nancy Vaidik wrote. “This doesn’t mean that Model Instruction 3109 is a complete and accurate statement of the law in this area; under Johnson, it is not.
“What it means is that instead of asking the trial court to give no instruction at all on the element of reasonable reliance, the Buyers should have argued for the model instruction to be modified or supplemented to inform the jury that, in disclosure-form cases, reasonable reliance is presumed and the burden is on sellers to rebut that presumption,” Vaidik continued. “Since the Buyers didn’t make that objection or ask for that relief, we cannot say the trial court erred by giving Model Instruction 3109 as written.”
The Zitzkas also challenged the sufficiency of the evidence supporting the jury verdict, but the trial court affirmed on that issue, as well.
“This is simply a reframing of the instruction argument, and as we just concluded, the Buyers have not demonstrated any instructional error,” Vaidik wrote.
But the Zitzkas did net a partial win when the COA reversed the attorney fees award as to Lauren because she wasn’t included on the purchase agreement. But the award still stands as to Zachary.
Judges Paul Mathias and Rudolph Pyle concurred in Zachary Zitzka and Lauren Zitzka v. William Brogdon and Jill Brogdon, 22A-PL-2867.
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