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Wysocki v. Johnson

Court of Appeals of Indiana

March 3, 2014

JOSEPH and M. CARMEN WYSOCKI, Appellants - Plaintiffs,
v.
BARBARA A. and WILLIAM T. JOHNSON, both individually and as Trustees of the BARBARA A. JOHNSON LIVING TRUST, Appellee

APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable Gerald N. Svetanoff, Judge. Cause No. 45D04-0805-CT-92.

ATTORNEY FOR APPELLANTS: SHAUN T. OLSEN, Olsen Campbell Ltd., Merrillville, Indiana.

ATTORNEY FOR APPELLEES: KATHERINE A. BROWN-HENRY, Cline Farrell Christie & Lee, P.C., Indianapolis, Indiana.

FRIEDLANDER, Judge. KIRSCH, J., and BAILEY, J., concur.

OPINION

Page 1219

FRIEDLANDER, Judge.

Joseph and M. Carmen Wysocki appeal the denial of their request for attorney fees and additional damages under Indiana's Crime Victims Relief Act, i.e., Ind. Code Ann. § 34-24-3-1 (West, Westlaw current through 2013 1st Reg. Sess. & 1st Reg. Technical Sess.) (the CVRA).

We affirm.

This is the second time litigation between these parties concerning the same operative facts has come before our appellate courts. Those facts concern the 2006 sale of a home from Barbara A. Johnson, William T. Johnson, and the Barbara A. Johnson Living Trust Dated 12-17-1996 (collectively, the Johnsons) to the Wysockis. Our Supreme Court set out those facts as follows:

In 1973, William and Barbara Johnson purchased a single-family home in Lake County, Indiana. In 1996, the Johnsons established the Barbara A. Johnson Living Trust and deeded the property to the Trust. They lived in the home continually, with William Johnson doing most renovation work that arose.
In 2006, the Trust sold the property to Joseph and M. Carmen Wysocki for $235,000. Prior to finalizing the purchase agreement, Barbara Johnson--in her position as trustee--executed a Seller's Residential Real Estate Sales Disclosure Form in which she averred that there were no violations of applicable building codes, that all work had been done with a building permit when required, that there were no foundational or structural problems, and that there were no issues with moisture, water, or roof leakage. The Wysockis acknowledged and signed the Disclosure Form on July 11, 2006. The next day they signed a purchase agreement for the

Page 1220

property, electing in that agreement to obtain their own independent inspection before closing.
The Wysockis' independent inspection noted no roof leaks, major deficiencies, electrical issues, or structural defects. However, it was limited to " readily accessible areas of the building" and " visual observations of apparent conditions existing only at the time of the inspections." (App. at 84.) " Latent and concealed defects and deficiencies" were excluded. (App. at 84.) The Wysockis then waived any further independent inspections and agreed to accept the property in the " ...

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