Rachel Staggs v. Corena Buxbaum

FILED
ATTORNEYS FOR APPELLANT Jun 28 2016, 9:24 am
Jane Dall Wilson CLERK
Indiana Supreme Court
Andrew M. McCoy Court of Appeals
and Tax Court
Faegre Baker Daniels LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rachel Staggs, June 28, 2016
Appellant-Defendant, Court of Appeals Case No.
47A04-1510-PL-1758
v. Appeal from the Lawrence Circuit
Court
Corena Buxbaum, The Honorable Andrea K.
Appellee-Plaintiff. McCord, Judge
Trial Court Cause No.
47C01-0912-PL-1522
Brown, Judge.
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 1 of 21
[1] Rachel Staggs appeals the trial court’s order awarding treble damages, actual
costs, and attorney fees pursuant to the Crime Victim Relief Act (“CVRA”) in
favor of Corena Buxbaum. Staggs raises two issues which we revise and restate
as:
I. Whether the trial court applied the wrong standard in awarding
exemplary damages under the CVRA; and
II. Whether the court’s award of exemplary damages is clearly
erroneous.
We affirm.
Facts and Procedural History
[2] This is an appeal following remand from this court. In our first decision we
summarized the facts as follows:
In 1998, Staggs married Dwight Staggs and moved into his
residence (the Property). In 2005, Dwight passed away and
Staggs became the sole owner of the Property.
In 2008, Staggs decided to sell the Property. On the Seller’s
Residential Real Estate Sales Disclosure Form, Staggs indicated
that the septic field/bed was not defective, that she did not know
the condition of the septic and holding tank/septic mound, and
that there were no moisture or water problems in the basement.
Buxbaum was interested in purchasing the Property. She visited
the house twice and did not notice any moisture problems in the
basement. Buxbaum hired an inspector, who identified a radon
problem on the Property but did not identify any other problems.
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 2 of 21
On August 27, 2008, Buxbaum purchased the Property from
Staggs. Shortly thereafter, Buxbaum attempted to locate the
septic system on the Property as she planned to build a garage
and did not want to build above the septic tank. Eventually,
Buxbaum learned that there was no septic system on the
Property. Instead, sewage was expelled through a sewage pipe
that traversed several hundred feet across the Property and
terminated at the back of the Property.
In November 2008, Buxbaum learned that there was a leak in the
basement. An employee of the company Buxbaum hired to
remedy the moisture problems stated that he believed the
basement had been leaking for years, as he observed water stains
and noticed that the floor had been pushed up because of
hydrostatic pressure.
On December 14, 2009, Buxbaum filed a complaint against
Staggs, alleging a single count of fraudulent misrepresentation.
A bench trial took place on May 12 and December 12, 2013. On
the first day of the trial, Staggs was represented by attorney Philip
Chamberlain. Between the first and second days of trial, Mr.
Chamberlain’s license to practice law was suspended, so Staggs
appeared pro se at the second day of trial.
Over the course of the trial, the following evidence was submitted
to the trial court:
• Staggs’s stepdaughter testified that she had grown up in
the house on the Property. She knew that there was no
septic system and stated that she was present for multiple
conversations between her father and Staggs in which her
father told Staggs that there was no septic system and that
one would need to be installed before attempting to sell the
Property.
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 3 of 21
• Staggs’s stepdaughter also testified that the basement was
wet all the time, that Staggs was aware of that fact, and
that at one point in time, the family needed to rent a
machine to pump water out of the basement.
• Staggs’s stepson testified that he was also present for
multiple conversations between his father and Staggs in
which his father stated that the Property had no septic
system. He also testified that he and Staggs had actually
walked through the Property several times and seen the
pipe out of which the sewage drained.
• Staggs’s stepson also testified that the basement
frequently had two to four inches of standing water and
that Staggs had moved things out of the basement to avoid
water damage.
• In 2007, Scott Nordhoff of Hydra Stone viewed the
Property with potential interest of buying it. At that time,
he spoke with Staggs about water problems in the
basement and Staggs told him that it was a good thing that
he was in the waterproofing business. Nordhoff did not
buy the Property but did end up waterproofing the
basement in 2009 when Buxbaum hired Hydra Stone to
solve the problem. Nordhoff testified that he believed the
basement had been leaking for years.
Buxbaum had to hire professionals to install a septic system,
remedy the moisture issues in the basement, and waterproof the
basement. The total cost to her of making these changes was
$21,939.58.
On March 4, 2014, the trial court ruled in favor of Buxbaum.
Among other things, the trial court found as follows:
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 4 of 21
2. . . . [Staggs] had actual knowledge of the defects in both
the basement and the septic system prior to filling out the
disclosure form and selling the home and made false
statements of important past and existing facts regarding
the basement and septic system.
3. The court finds that it was not an error, inaccuracy or
omission by [Staggs] that was not within her actual
knowledge and would keep her from liability.
***
Damages
***
3. . . . The court finds that there was the requisite specific
intent to make a finding of fraud for the purposes of
awarding treble damages. . . . The Court now awards
[Buxbaum] her request for treble damages.
Appellant’s App. p. 14-15 (emphasis original). The trial court
calculated damages as follows: (1) out-of-pocket costs of
$21,939.58; (2) treble damages of $65,818.74; and (3) attorney
fees of $7,040. The trial court added all of those amounts for a
total damages award of $94,798.32.
Staggs v. Buxbaum (Staggs I), No. 47A01-1406-PL-254, slip op. at 2-5 (Ind. Ct.
App. February 25, 2015).
[3] This court addressed three issues in Staggs I, namely, whether the court
erroneously found in favor of Buxbaum on her claim of fraudulent
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 5 of 21
misrepresentation, whether the court should reconsider an award of treble
damages in light of the Indiana Supreme Court’s decision in Wysocki v. Johnson,
18 N.E.3d 600 (Ind. 2014), and whether the court erred in calculating damages.
Id. at 6-7, 9. On the fraudulent misrepresentation issue, this Court held that the
evidence supported the trial court’s judgment and that Staggs’s arguments were
a request to reweigh the evidence. Id. at 7. Regarding treble damages, we
observed that Wysocki was handed down after the trial court issued its order,
that under Wysocki “an additional finding of criminal culpability is now
required to support an award of treble damages,” and that accordingly remand
to reconsider the damages award was warranted. Id. at 8-9. We also ruled that,
to the extent Buxbaum is still entitled to treble damages following remand, “the
maximum amount of damages to which she is entitled is $72,858.74 (three
times the actual damages of $21,939.58 plus $7,040 in attorney fees)” and that
the court in its initial order “actually quadrupled, rather than tripled, Buxbaum’s
actual damages.” Id. at 9.
[4] On June 16, 2015, the trial court held a hearing in accordance with Staggs I, and
on September 29, 2015, issued Findings of Fact and Conclusions of Law (the
“September Order”) ordering that Buxbaum “is entitled to recover $21,939.59
in her actual costs and expenses and $7040.00 in her attorney’s fees (see id.),
plus treble damages of an additional $43,879.18 for a total award of $72,858.77
which is now entered as a judgment for . . . Buxbaum and against . . . Staggs.”
Appellant’s Appendix at 25. The findings and conclusions contained in the
September Order state in part:
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 6 of 21
Findings of Fact
*****
12. The sales disclosure form in this case included two separate
entries related to the septic system at the Property . . . . More
specifically, the first entry is referred to as the “Septic
Field/Bed,” . . . and the second entry refers to the “Septic and
Holding Tank/Septic Mound,” . . . .
13. . . . [W]ith respect to the “Septic and Holding Tank/Septic
Mound” entry, Ms. Staggs checked the box indicating that she
did not know the condition of such tank/mound. . . .
14. With respect to the “septic field/bed” entry, Ms. Staggs
checked the box indicating that the field was not defective . . . .
15. [The sales disclosure form] has conflicting statements
regarding the septic field and bed and the septic holding tank and
septic mound.
16. In sum, it could be construed that there was conflicting
evidence as to whether Ms. Staggs knowingly misrepresented the
condition of the septic system. The Court credited [Buxbaum’s]
evidence in its initial opinion in finding a misrepresentation and
has not been instructed to re-visit that particular finding.
However, the conflicting evidence is relevant to the Court’s
determination of whether the record shows “criminally culpable”
or “heinous” conduct.
17. Neither inspector who inspected the Property identified any
water leaks in the basement. . . .
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 7 of 21
18. Ms. Staggs’ step-daughter, Kathy Kopsho, who was called as
a witness for [Buxbaum], testified that Ms. Staggs “never even
went down to the basement” (Trial Tr. at 99-100), thus
contradicting [Buxbaum’s] contention that Ms. Staggs had actual
knowledge that her basement leaked (and thus that her
representations on the sales disclosure form were fraudulent).
However, Ms. Staggs’ stepson testified that Ms. Staggs was
aware of water in the basement from time to time.
19. Based on the above, [Staggs] asks this Court to consider
there was conflicting evidence as to whether Ms. Staggs’ [sic]
misrepresented moisture issues in the basement. The Court
credited Ms. Buxbaum’s evidence in its initial opinion in finding
a misrepresentation and has not been instructed to re-visit that
particular finding. However, as with the evidence to the septic
system, the conflicting evidence about Ms. Staggs’ knowledge of
moisture issues in the basement would have also supported a
ruling in her favor and bears upon this Court’s determination of
whether Ms. Staggs acted in a “criminally culpable” or “heinous”
manner.
20. [Staggs] asks this Court to consider other extenuating
circumstances surrounding the trial. First, that Ms. Staggs was
not present during the first day of the bench trial due to health
reasons and thus did not hear any of the evidence presented by
[Buxbaum] during that first day; however, the Court’s record is
clear that [Staggs] chose to allow the trial to continue after
consulting with her attorney and was clear on the consequences
for doing so . . . .
21. Second, that before the second day of the trial, Ms. Staggs’
attorney was suspended from the practice of law in Indiana. Ms.
Staggs represented herself pro se on the second day of trial
without having heard the evidence presented again during the
first day of trial. However, the transcript shows that the Court
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 8 of 21
questioned her regarding self-representation and she chose to
proceed on her own. . . .
22. . . . [T]he Court would have entertained a Motion for
Continuance to obtain counsel . . . .
23. [Staggs] also states that much of the evidence that was
elicited during [Buxbaum’s] case-in-chief and used against Ms.
Staggs was un-objected to hearsay. However, Ms. Staggs chose
to act as her own attorney and was therefore charged with
knowing and understanding the Rules of Evidence.
24. To the extent that any of the above Findings of Fact
constitute Conclusions of Law, the Court adopts and
incorporates them as such.
Conclusions of Law
25. This Court was not instructed to re-visit its conclusion that
Ms. Staggs was liable for fraudulent misrepresentation and
damages under the CVRA. However, under Wysocki, this Court
was asked to re-consider whether the evidence supported a
finding that Ms. Staggs committed “heinous” or “criminally
culpable” conduct to support the award of treble damages.
26. In, [sic] Wysocki, the Supreme Court states that, “An actual
criminal conviction is not required for recovery [under the
CVRA]; a claimant merely must prove each element of the
underlying crime by a preponderance of the evidence.” . . . .
*****
28. The Court originally found that [Staggs] was fully aware that
the home was void of a septic system and that the basement had
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 9 of 21
issues with water leakage. Although [Staggs] believes that there
may have been some conflicting testimony that does not change
this Court’s original findings. The Court[’]s original Findings
and Conclusions were very clear that [Staggs] knew the basement
had water problems in the past and, although it was dry at the
time [Buxbaum] was looking to purchase the home, she failed to
disclose the defect. Also, [Staggs] knew that the home did not
have a working septic system, only a pipe that ran the sewage to
an adjoining farm field, yet she chose to check the boxes on the
forms that stated the septic field beds were not defective and that
she did not know of the condition of the tank and mound. She
did not know of the condition of the tank and mound because
there were none and she was fully aware of that fact. She also
knew that the septic field was nonexistent as well. All of these
statements are knowing and intentionally misleading and a clear
attempt to profit from the sale of her home.
29. The form language on [the sales disclosure report] reads:
“NOTE: “Defect” means a condition that would have a
significant adverse effect on the value of the property that
would significantly impair the health or safety of future
occupants of the property or that, if not repaired, removed,
or replaced, would significantly shorten or adversely affect
the expected normal life of the premises.
The information contained in this Disclosure has been
furnished by the Seller, who certifies to the truth
thereof, based on the Seller’s CURRENT ACTUAL
KNOWLEDGE. . . .
This Court finds that [Staggs] had actual knowledge of the
defects in her home and the failure to disclose those defects were
heinous acts. They could have impaired the health of the future
occupants and significantly affected the expected normal life of
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 10 of 21
the premises. [Staggs] lied for financial gain putting her welfare
ahead of the safety and welfare of the future occupants.
30. In making an assessment of criminality under the
preponderance standard, the foregoing findings of fact lead the
court to a conclusion that [Staggs] did act in a “heinous” and
“criminally culpable” manner when she completed her sales
disclosure form . . . .
31. To the extent that any of the above Conclusions of Law
constitute Findings of Fact, the Court adopts and incorporates
them as such.
Id. at 10, 15-18, 20-24.
Discussion
[5] Before addressing the issues raised by Staggs, we observe that Buxbaum did not
file an appellee’s brief. When an appellee fails to submit a brief, we do not
undertake the burden of developing its arguments, and we apply a less stringent
standard of review, that is, we may reverse if the appellant establishes prima facie
error. D & D NAPA, Inc. v. Unemployment Ins. Appeals of Ind. Dep’t of Workforce
Dev., 44 N.E.3d 67, 73 (Ind. Ct. App. 2015). This rule was established so that
we might be relieved of the burden of controverting the arguments advanced in
favor of reversal where that burden properly rests with the appellee. Id.
Questions of law are still reviewed de novo. Id.
[6] When a trial court enters findings of fact and conclusions thereon, findings
control only as to the issues they cover and a general judgment will control as to
the issues upon which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259,
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 11 of 21
1262 (Ind. 1997). A general judgment entered with findings will be affirmed if
it can be sustained on any legal theory supported by the evidence. Id. When a
court has made special findings of fact, an appellate court reviews sufficiency of
the evidence using a two-step process. Id. First, it must determine whether the
evidence supports the trial court’s findings of fact, and second it must determine
whether those findings of fact support the trial court’s conclusions. Id.
Findings will be set aside only if they are clearly erroneous. Id. Findings are
clearly erroneous only when the record contains no facts to support them either
directly or by inference. Id. A judgment is clearly erroneous if it applies the
wrong legal standard to properly found facts. Id. In order to determine that a
finding or conclusion is clearly erroneous, an appellate court’s review of the
evidence must leave it with the firm conviction that a mistake has been made.
Id. We review questions of law de novo and owe no deference to the trial court’s
legal conclusions. M.K. Plastics Corp. v. Rossi, 838 N.E.2d 1068, 1075 (Ind. Ct.
App. 2005).
I.
[7] The first issue is whether the court applied the wrong standard in awarding
exemplary damages under the CVRA.1 Staggs argues that because an award of
1
Ind. Code § 34-24-3-1, i.e., the CVRA, provides in part:
If a person has an unpaid claim on a liability that is covered by IC 24-4.6-5 or suffers a
pecuniary loss as a result of a violation of IC 35-43, IC 35-42-3-3, IC 35-42-3-4, or IC 35-45-9,
the person may bring a civil action against the person who caused the loss for the following:
(1) An amount not to exceed three (3) times:
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 12 of 21
exemplary damages under the CVRA is discretionary and “must be based upon
an additional finding of ‘heinous’ or ‘criminally culpable’ conduct,” such
damages should be awarded under a clear and convincing evidentiary standard.
Appellant’s Brief at 14. She references the Indiana Supreme Court’s statements
in Andrews v. Mor/Ryde Intern., Inc., 10 N.E.3d 502 (Ind. 2014), reh’g denied, and
suggests that that case is distinguishable from these facts. Staggs asserts that,
under Wysocki, which held that damages under the CVRA were discretionary,
such damages must be awarded pursuant to a clear and convincing evidence
standard per the Punitive Damages Act, found at Ind. Code §§ 34-51-3-2, -6.
She also argues that, accordingly, the trial court’s award of treble damages
under a preponderance standard was clearly erroneous, maintaining that “[t]he
question presented to the trial court on remand was not whether the CVRA
should apply, but instead whether the punitive aspect of CVRA liability (i.e.,
exemplary damages in the form of, for example, treble damages) was
warranted. Id. at 17.
[8] Staggs’s arguments have no merit. In Wysocki, heading II of the Court’s
opinion states: “A CVRA Claim Requires Proving the Elements of a Criminal
(A) the actual damages of the person suffering the loss, in the case of a liability that is
not covered by IC 24-4.6-5; or
(B) the total pump price of the motor fuel received, in the case of a liability that is
covered by IC 24-4.6-5.
(2) The costs of the action.
(3) A reasonable attorney’s fee. . . .
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 13 of 21
Offense, But Only by the Civil Preponderance Standard . . . .” 18 N.E.3d at
606. The Court stated specifically:
[A]s we recently reiterated, “An actual criminal conviction is not
required for recovery [under the CVRA]; a claimant merely must
prove each element of the underlying crime by a preponderance
of the evidence.” Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327,
334 (Ind. 2013) (internal citation and quotation marks omitted).
See also Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190, 193
(Ind. 2012) (same); White[ v. Ind. Realty Assocs. II, 555 N.E.2d
454, 456 (Ind. 1990)] (construing predecessor statute and
concluding that “[u]nder this unique statute, a criminal
conviction is not a condition precedent to recovery. The
claimant need only prove by a preponderance of the evidence
that the criminal act was committed by the defendant.” (internal
citation omitted)); Obremski v. Henderson, 497 N.E.2d 909, 911
(Ind. 1986) (construing predecessor statute and concluding that
“[t]he appropriate standard is preponderance of the evidence.”).
Id. These statements make clear that CVRA liability is examined under a
preponderance of the evidence standard.
[9] The Court’s statements in Andrews provide further clarification. In that case,
plaintiff Andrews sought recovery under the Indiana Sales Representative Act,
Ind. Code §§ 24-4-7 (2007). 10 N.E.3d at 503. In its analysis, the Court
observed that “Indiana first restricted common-law punitive damage awards in
1984, when it required them to be proved by ‘clear and convincing evidence,’”
in which the legislature’s goals “were to ‘discourage plaintiffs from bringing
punitive damages claims,’ to ‘decrease the plaintiff’s windfall recovery’ and
‘protect defendants from excessive punitive damage awards,’ and generally to
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 14 of 21
‘combat perceived ills associated with the rising number of punitive damage
awards.’” Id. at 504-505. The Court noted that, “[b]y contrast, other causes of
action and corresponding remedies are purely the Legislature’s own creation,”
i.e., not a creature of common law, and it specifically referenced the CVRA,
“which permits the victims of certain crimes to bring an action for up to three
times their pecuniary losses plus attorney fees.” Id. at 505. The Court noted:
To the extent those awards exceed the victim’s actual damages,
their purpose is no less “punitive” or “exemplary” than their
common-law counterparts. Yet we held that such actions were
not subject to proof by “clear and convincing evidence,” as the
first version of the Punitive Damages Act required, because
“recovery of treble damages under this section is regarded as
distinct from recovery of common law punitive damages.”
Obremski, 497 N.E.2d at 911. We agree with Judge Barnes that
Obremski’s distinction between common-law punitive damages
and statutory exemplary damages is controlling here.
Id.
[10] Thus, the Court in Andrews specifically affirmed the rule in Obremski and based
its reasoning for applying a preponderance of the evidence standard rather than
one of clear and convincing evidence not upon whether such damages are
mandatory or discretionary, as suggested by Staggs, but instead upon whether
they are based in common law or are a creature of statute. Indeed, although
Staggs’s brief repeatedly attempts to cast CVRA damages as “punitive” and
suggests that the holding of Wysocki brings the CVRA under the ambit of the
Punitive Damages Act, we observe that Ind. Code § 34-24-3-3 provides that a
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 15 of 21
person may not recover both punitive damages and damages under the CVRA,
which provides further support for the conclusion that CVRA damages are
distinct from common law punitive damages.2 We conclude that the court’s
application of a preponderance of the evidence standard was not clearly
erroneous.
II.
[11] The next issue is whether the court’s award of exemplary damages is clearly
erroneous. Staggs argues that the court’s findings that conflicting evidence was
presented contradicts its conclusion that such “evidence supported a finding of
‘criminally culpable’ or ‘heinous’ conduct sufficient to award treble damages,”
and this error is compounded by the court’s application of a preponderance
standard. Appellant’s Brief at 19. Staggs argues that the court did not make the
necessary additional findings of criminal culpability to support an award of
exemplary damages and that instead it “re-hashed findings of basic liability.”
Id. at 21. She asserts that “[w]hen this court remanded for consideration of the
Wysocki standard and a requirement that the trial court make ‘an additional
finding of criminal culpability,’ it surely intended that the trial court make some
2
Ind. Code § 34-24-3-3 provides:
It is not a defense to an action for punitive damages that the defendant is subject to criminal
prosecution for the act or omission that gave rise to the civil action. However, a person may not
recover both:
(1) punitive damages; and
(2) the amounts provided for under section 1 or 1.5 of this chapter.
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 16 of 21
finding or draw some conclusion that extends beyond a mere finding of CVRA
liability” and that “[b]asic liability alone is not enough to warrant exemplary
damages.” Id. She also argues that, in any event, exemplary damages in this
case are not warranted where Staggs “actually went to the county department of
health to ensure that her property was safe for future occupants,” she missed the
first day of trial and subsequently represented herself at the second day of trial,
and much of the contradictory evidence came in the form of un-objected to
hearsay by her estranged adult step-children. Id. at 22.
[12] In Wysocki, the Indiana Supreme Court discussed liability under the CVRA.
The facts underlying the dispute in Wysocki involved the Johnsons, who sold a
home they had owned and occupied for over thirty years, to the Wysockis in
2006. 18 N.E.3d at 602. During the time the Johnsons lived in the home,
William Johnson performed most of the renovation and maintenance work
himself. Id. The Sales Disclosure Form completed by Barbara Johnson
indicated that there were no building code violations or other issues with the
home, the Wysockis’ inspector found no problems with the home, and the
Wysockis purchased the home as-is in July 2006. Id. Shortly after moving in,
however, the Wysockis discovered multiple issues, including “water leaks in the
garage and over the front porch, structural problems with the front porch
overhang and the foundation of the screened porch, and grossly substandard
electrical wiring to the swimming pool.” Id. They sued the Johnsons for
fraudulently failing to disclose such defects, and, following a bench trial, the
court awarded the Wysockis $13,805.95 in compensatory damages based upon
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 17 of 21
a common-law fraudulent misrepresentation theory but denying their request
for additional damages, fees, and costs under the CVRA. Id. at 602-603.
[13] On transfer,3 the Wysockis asked the Court “to adopt a bright-line rule that
every knowing misrepresentation on a Sales Disclosure Form constitutes
criminal deception, and thus gives rise to CVRA liability.” Id. at 604. The
Court declined their request, holding that “the trial court expressly relied on
common-law fraudulent misrepresentation, and specifically refused to grant
CVRA relief,” which “was well within the trial court’s discretion.” Id. The
Court went on to note that “[e]ven when a court awards compensatory
damages under the CVRA . . . ‘it is highly appropriate for the trial court to
weigh any equities before deciding the amount, if any, owed’ as exemplary
damages,” in which a court’s decision not to award damages in excess of the
actual loss “amounts to an ‘implicit[ ] f[i]nd[ing] that the . . . conduct was not
so heinous as to require exemplary damages’—even when the court awards
attorney fees as the statute requires.” Id. at 605. The Court espoused that
“[t]hough the CVRA creates a civil remedy, its reliance on proof of a predicate
criminal offense makes it inherently quasi-criminal,” that “just as the
“heinousness” of the defendant’s conduct may properly factor into the
factfinder’s decision whether to award exemplary damages under the CVRA,
the court’s inchoate sense of the defendants’ criminal culpability is a permissible
3
The Court’s opinion in Wysocki involved remand for a determination of whether the Johnsons had actual
knowledge of the defects and was an appeal following remand. 18 N.E.3d at 603.
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 18 of 21
factor in assessing whether the CVRA predicate offense has been proven,” and
that “when the pleadings give the trial court a choice between an intentional
tort and the quasi-criminal CVRA, the court necessarily has discretion to
choose tort liability and reject quasi-criminal liability—even when, as here, the
criminal offense and civil tort are so closely related.” Id.
[14] Thus, the Court in Wysocki held that, where the complaint is sufficiently open-
ended to encompass alternative theories of liability, including common law
fraudulent misrepresentation sounding in tort and quasi-criminal CVRA
liability, the court has discretion to award compensatory tort damages only or
damages under the CVRA. Id. at 605-606. In so holding, it also explained that
an “assessment of criminality” is required to find liability under the CVRA, that
such liability entitles the victim, at a minimum, to a recovery of costs and
attorney fees in accordance with Ind. Code § 34-24-3-1, and that the level of
“heinousness” shown may factor into the factfinder’s decision whether to
award exemplary (treble) damages under the CVRA. Id. The Court affirmed
the trial court’s decision to award compensatory damages for common-law
fraudulent misrepresentation and decline an award under the CVRA. Id. at
606.
[15] In this case, Staggs does not challenge the court’s decision to impose CVRA
liability at all – she is not disputing the award of costs and attorney fees totaling
$7,040.00. Rather, her argument is that the court did not make the findings that
her actions were sufficiently heinous to award exemplary damages under the
CVRA. In its September Order, the court acknowledged that certain
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 19 of 21
“conflicting evidence is relevant to the Court’s determination of whether the
record shows ‘criminally culpable’ or ‘heinous’ conduct” regarding Staggs’s
representations regarding the septic system, and it made a similar observation
regarding Staggs’s representations concerning the basement moisture issues.
Appellant’s Appendix at 17. Having so acknowledged, the court went on to
find unequivocally that Staggs “had actual knowledge of the defects in her
home and the failure to disclose those defects were heinous acts,” noting that
such misrepresentations “could have impaired the health of the future
occupants and significantly affected the expected normal life of the premises.”
Id. at 24. The court also found that Staggs “lied for financial gain putting her
welfare ahead of the safety and welfare of the future occupants.” Id. It
concluded that such facts show that Staggs “did act in a ‘heinous’ and
‘criminally culpable’ manner when she completed her sales disclosure form,”
and accordingly it ordered that she pay treble damages, costs, and attorney fees
to Buxbaum pursuant to the CVRA.
[16] The court in its September Order made an “assessment of criminality” as
instructed by this court in Staggs I, and it concluded that Staggs acted in a
heinous and criminally culpable manner sufficient to warrant exemplary
damages. To the extent that she suggests that exemplary damages are not
warranted because she represented herself pro se on the second day of trial after
her attorney was suspended from practicing law, the September Order
specifically addressed this in its findings and found that it was the result of a
decision by Staggs. “A party may not take advantage of an error that he
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 20 of 21
commits, invites, or which is the natural consequence of his own neglect or
misconduct.” Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 695 (Ind. Ct.
App. 2008) (citing White v. State, 687 N.E.2d. 178, 179 (Ind. 1997)), trans.
denied. To the extent she asserts that the court’s findings are based on
inadmissible hearsay, we similarly observe that Staggs invited such errors when
she chose to represent herself at trial and, in any event, she presented such issue
in her initial appeal and this Court ruled that, as “no objections to this evidence
were raised at trial,” such arguments were waived. Staggs I, slip op. at 7. We
cannot say that the court’s September Order is clearly erroneous.
Conclusion
[17] For the foregoing reasons, we affirm the court’s September Order.
[18] Affirmed.
Baker, J., and May, J., concur.
Court of Appeals of Indiana | Opinion 47A04-1510-PL-1758 | June 28, 2016 Page 21 of 21