Hi-Tec Properties, LLC v. Brittany Murphy, Kendall Murphy, Lorie Murphy, and Jay Frazier

Jul 21 2014, 9:12 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
JERE L. HUMPHREY DOUGLAS D. SMALL
Wyland, Humphrey, Wagner & Clevenger, LLP Foley & Small
Plymouth, Indiana South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
HI-TEC PROPERTIES, LLC, )
)
Appellant-Defendant, )
)
vs. ) No. 50A05-1401-CT-14
)
BRITTANY MURPHY, KENDALL )
MURPHY, LORIE MURPHY, and )
JAY FRAZIER, )
)
Appellees-Plaintiffs. )
APPEAL FROM THE MARSHALL CIRCUIT COURT
The Honorable Curtis D. Palmer, Judge
Cause No. 50C01-1002-CT-4
July 21, 2014
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Hi-Tec Properties, LLC (“Hi-Tec”), appeals the trial court’s denial of its motion to
correct error following a jury verdict and award of compensatory and punitive damages
entered in favor of Brittany Murphy, Kendall Murphy, Lorie Murphy, and Jay Frazier
(collectively “Plaintiffs”) on their claims for negligence, breach of contract, and fraud against
Hi-Tec. Hi-Tec filed a motion to correct error claiming, in essence, that the jury verdict and
resulting award of damages was improper and unsupported by the evidence. The trial court
denied the motion, and Hi-Tec appealed. Finding a portion of the compensatory damages
award to be unsupported by the evidence, we reverse that portion of the award and remand to
the trial court with instructions for revision. We affirm the trial court in all other respects.
Facts and Procedural History
The relevant facts most favorable to the verdict indicate that Hi-Tec owns an
apartment complex in Plymouth, Indiana. The Hi-Tec complex consists of five buildings
with twelve apartments each. Of those twelve apartments in each building, four apartments
are below-grade. The below-grade apartments have dehumidifiers to remove moisture from
the air, and tenants in those apartments are given a twenty-dollar-per-month rent deduction to
defray electrical costs for running the dehumidifiers. In August 2009, nineteen-year-old
Brittany Murphy and her friend Jay Frazier were enrolled at Ancilla College, a two-year
college in Marshall County. Brittany planned to play basketball for Ancilla. Brittany and Jay
decided that they would share an apartment during college. Jay traveled to Hi-Tec and met
with the on-site apartment manager, Karma Murray, who showed him available units. On a
2
second trip, Brittany also looked at the units. Brittany and Jay decided to share one of the
below-grade Hi-Tec apartments. On August 15, 2009, Brittany and her father Kendall
Murphy met with Murray, and both signed the lease agreement to rent apartment number
1383, a below-grade apartment. Although the lease named Brittany and her mother, Lorie
Murphy, as “Lessee[s],” Lorie was not present that day and did not sign the lease agreement.
Appellant’s App. at 83.1
The lease agreement signed by Brittany and Kendall included the following clause:
23. Mold. Lessee acknowledges that no evidence of mold was observed in
the living unit prior to leasing. Lessee also agrees to notify Lessor in writing
within ten (10) days of observing any mold. Lessor shall then have two (2)
weeks within which to remediate the conditions at no cost to Lessee. As part
of the consideration of this lease, Lessor shall have no personal liability for
personal injury or property damage as a result of any mold, fungus, etc.
… Lessor agrees to clean the mold, fungus, etc., from the personal property of
Lessee but shall not be liable for any expenses for Lessees having a third party
clean or sanitize the personal property or unit. However, if the mold, fungus,
etc. develops because of the Lessee’s use of the unit in a way likely to heighten
the risk of mold, then Lessor shall have no obligation for cleaning personal
property. In any event, Lessee releases and agrees to save harmless, Lessor
and their agents for personal injury and suffering, mental anguish,
medical expenses, lost wages, etc., to themselves and or family members.
Id. at 69 (emphases added).
Thereafter, Brittany and Jay moved into the apartment and lived there. Brittany paid
the rent with the help of her parents. Jay would “help out when he could.” Tr. at 276.
In late September, Brittany complained to Lorie that she “didn’t feel good … was tired all
the time … felt congested … just did not feel good.” Id. at 151. Brittany began feeling even
1
The lease is dated August, 14, 2009. However, it appears that Brittany and Kendall signed the
agreement on August 15, 2009.
3
worse in October. She lacked energy and had trouble running at basketball practice. Jay was
congested and feeling bad too. Brittany and Jay both had a history of exertion-induced
asthma and felt like their asthma symptoms had increased. On Friday, November 6, 2009,
Brittany spoke to Lorie on the telephone and, because Brittany and Jay had not been feeling
well, Lorie advised Brittany to open the windows in the apartment to get some fresh air. That
Sunday, Brittany went to open her bedroom window and discovered mold in the window
frame. There was also mold growing on the window side of the blinds. Jay found mold
growing on his window frame as well, but not as much as in Brittany’s bedroom. Brittany
called Lorie, who instructed her to clean the mold with a bleach and water mixture. After
cleaning the mold, Lorie called Murray and told her about the mold and asked her advice on
how Brittany should clean it. Murray claimed to have no idea how to clean or deal with
mold. However, based upon Murray’s advice, Jay wrote a letter alerting Hi-Tec to the mold
they had discovered in the apartment. Hi-Tec agreed to move Brittany and Jay to an above-
grade apartment.
The next weekend, Kendall and Lorie traveled to Plymouth to help Brittany and Jay
move to the new apartment. During that week, new mold grew back on the frames of the
bedroom windows. Lorie took pictures of the mold and also brought Murray to the apartment
to show her the mold. Brittany and Lorie signed a new lease agreement for the rental of an
upstairs apartment. During the move, some of Brittany’s apartment items and clothing had to
be thrown away and other items had to be cleaned. After moving, Brittany continued to
experience increased asthma symptoms and headaches. Brittany’s family physician, Dr.
4
William Goudy, believed that the mold exposure made Brittany’s asthma worse. An
infectious disease physician who evaluated Brittany opined that, regarding her increased
asthma symptoms, it was “more possible that she is recovering from an allergic reaction to
mold exposure.” Appellant’s App. at 155. Due to her health, Brittany was unable to
participate in the basketball season. By the fall of 2010, Brittany was “pretty much back to
normal.” Tr. at. 169.
On February 12, 2010, Plaintiffs filed their amended complaint for damages against
Hi-Tec, alleging that Hi-Tec was negligent in “providing such services and a habitable
apartment.” Appellant’s App. at 40. In addition, Plaintiffs also sought damages against Hi-
Tec for fraud, alleging that Hi-Tec had knowledge of prior mold infestations and that
Plaintiffs detrimentally relied on Hi-Tec’s misrepresentations and omissions. During pretrial
proceedings, Plaintiffs also alleged that Hi-Tec was guilty of breach of contract by leasing an
apartment with water and mold problems. Hi-Tec answered and raised several affirmative
defenses, including comparative fault and that the lease agreement precludes recovery for
personal injury as a result of any mold. Hi-Tec also argued that Kendall and Lorie had no
viable claims for alleged injuries and/or damages caused to Brittany, their adult daughter.
Thereafter, by pretrial order, on October 17, 2013, the trial court determined the “portion of
the language in paragraph 23 of the lease relieving the Lessor of liability for personal injury
or property damage to be void as against public policy.” Id. at 52. Thereafter, Hi-Tec filed a
motion in limine requesting the court to prohibit Plaintiffs from informing the jury that the
court found a portion of the lease void as against public policy. The trial court granted the
5
motion in limine and redacted the mold exclusion clause, paragraph 23, from the lease
agreement. Defendant’s Exhibit 16.
A three-day jury trial commenced on October 22, 2013. The jury returned a general
verdict finding Hi-Tec 100% at fault and awarded $10,000 in compensatory damages to
Brittany and $10,000 to each of her parents. The jury awarded no compensatory damages to
Jay.2 The jury also awarded Brittany $15,000 in punitive damages. Thereafter, Hi-Tec filed
a motion to correct error, which the trial court denied. This appeal followed.
Discussion and Decision
Standard of Review
Hi-Tec appeals following the denial of its motion to correct error. We review a trial
court's ruling on a motion to correct error for an abuse of discretion. Reed v. Bethel, 2
N.E.3d 98, 106 (Ind. Ct. App. 2014). We will reverse a trial court’s ruling on a motion to
correct error “only where the trial court’s judgment is clearly against the logic and effect of
the facts and circumstances before it or where the trial court errs on a matter of law.”
Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).
Section 1 – Exculpatory Clause
We begin by addressing Hi-Tec’s claim that the trial court erred when it concluded
that the exculpatory clause contained in the residential lease signed by Brittany and Kendall,
which immunized Hi-Tec against liability for injuries caused by mold, was void as against
public policy. We disagree with Hi-Tec.
2
Jay failed to appear at trial.
6
Whether a contract is against public policy in a particular situation is a question of law
dependent on the circumstances of the particular case. Trotter v. Nelson, 684 N.E.2d 1150,
1152-53 (Ind. 1997). In Ransburg v. Richards, 770 N.E.2d 393, 395 (Ind. Ct. App. 2002),
trans. denied,, we determined that resolution of the question of whether a residential lease
provision is void as against public policy turns on “fairly balancing the parties’ freedom to
contract against the policy of promoting responsibility for damages caused by one’s own
negligent acts.” Looking to other jurisdictions for guidance, we agreed with the reasoning of
several courts that have found clauses limiting the landlord’s liability for negligence void as
against public policy. Id. at 399-402. These courts emphasized both the unequal bargaining
power between residential landlords and tenants, and the fact that exculpatory clauses in
residential leases are public matters rather than private terms “primarily because the rental
industry provides basic necessity of life, shelter, to thousands of people.” Id. at 401-402.
Specifically,
A lease is no longer an isolated contract between one landlord and one tenant.
The size of the rental industry is so great that construction of an exculpatory
clause has an impact on thousands of citizens. Furthermore, the public has an
interest in the quality of housing offered for rent to all members of the public.
Enforcement of exculpatory clauses in personal injury cases results in great
harm to the public, and thus these clauses do not fall within the exception to
the rule that a party may not contract against his or her own negligence.
Id. at 402 (quoting Taylor v. Leedy & Co., 412 So. 2d 763, 766 (Ala. 1982) (Faulkner, J.
concurring specially)).
Pointing out that residential lease exculpatory clauses contravene long-established
rules of tort liability and discourage residential landlords from meeting the duties of
7
reasonable care imposed on them by law for the protection of society, we determined that
“[t]he best way to promote the exercise of due care is to hold residential landlords liable for
their own negligence.” Id. We concluded that the factors set out by our supreme court that
should be balanced when determining whether to enforce a private agreement that is contrary
to the declared public policy of Indiana weighed in favor of not enforcing such exculpatory
clauses in residential leases. Id. (citing Trotter, 684 N.E.2d at 1152-53). Indeed, we
explained,
[g]iven the vast number of people clauses like these affect, the inequality of
bargaining power caused by the need for housing, the fact that people who are
not parties to the contracts could suffer as a result of such clauses, and the
desire to promote responsible maintenance by landlords to avoid personal
injuries by tenants and third parties, we find that the factors weigh in favor of
public policy.
Id.
Hi-Tec maintains that the rationale for our decision in Ransburg was directed only at
“blanket exclusions” of liability for all negligence rather than “the limited area of exculpation
relating to mold.” Appellant’s Br. at 16.3 Although the exculpatory clause at issue in
Ransburg sought to immunize the landlord against damages caused by negligence in
maintaining common areas, and therefore was a more expansive liability insulation than the
mold exclusion at issue here, we are not persuaded that our rationale was so limited. As was
the exculpatory clause at issue in Ransburg, the current clause immunizing Hi-Tec from
3
We note that the lease here also contained what would be appropriately described as a blanket
exculpatory clause seeking to immunize Hi-Tec against any damages caused by its negligence, whatever the
source. As with the mold provision, that clause was also redacted from the lease before the lease was viewed
by the jury.
8
liability for damages caused by mold is inconsistent with common-law principles of tort law,
as it is well-settled that a landlord may be held liable for personal injuries caused by latent
defects known to the landlord but unknown to the tenant and which the landlord fails to
disclose. Erwin v. Roe, 928 N.E.2d 609, 616 (Ind. Ct. App. 2010).4 Such clauses offend the
public policy of this state and will not be enforced.
We conclude that the exculpatory clause regarding mold in this residential lease is
contrary to public policy insofar as it seeks to immunize Hi-Tec against damages caused by
its own negligence. Therefore, the trial court did not err when it concluded that the
exculpatory clause was void as against public policy.
Section 2 – Comparative Fault
Hi-Tec also contends that the jury’s finding that it was 100% at fault for Brittany’s
injuries is not supported by the evidence. As a general rule, the apportionment of fault is
uniquely a question of fact to be decided by the factfinder. St. Mary’s Med. Ctr. of
Evansville, Inc. v. Loomis, 783 N.E.2d 274, 285 (Ind. Ct. App. 2002). “The point where
apportionment of fault becomes an issue of law solely for the trial court ‘is reached only
when there is no dispute in the evidence and the fact-finder is able to come to come to only
one logical conclusion.’” Id. (quoting Hampton v. Moistner, 654 N.E.2d 1191, 1195 (Ind. Ct.
App. 1995)).
4
Hi-Tec maintains that mold caused by moisture should not be considered a latent defect for purposes
of landlord-tenant negligence liability. Hi-Tec cites no authority for such proposition and, as shown by its
verdict, the jury clearly disagreed with Hi-Tec on this issue.
9
Hi-Tec points to Brittany’s decision to rent a below-grade apartment despite her
asthma and Kendall’s and Lorie’s decision to continue to smoke around their asthmatic
daughter as evidence of Plaintiffs’ comparative fault. This is merely an invitation for us to
invade the province of the jury, which we will not do. The evidence presented by the parties
was neither undisputed nor supportive of only one logical conclusion. Therefore, the jury
could reasonably find that Plaintiffs bore no fault in causing Brittany’s injuries. The trial
court did not abuse its discretion when it denied Hi-Tec’s motion to correct error on this
issue.
Section 3 – Compensatory Damages Award
We next address the jury’s compensatory damages award of $10,000 each to Brittany,
Kendall, and Lorie. Hi-Tec claims that the awards were improper and unsupported by the
evidence. “A jury determination of damages is entitled to great deference when challenged
on appeal.” Lifeline Youth & Family Servs., Inc. v. Installed Bldg. Prods., Inc., 996 N.E.2d
808, 813 (Ind. Ct. App. 2013) (quoting Sears Roebuck and Co. v. Manuilov, 742 N.E.2d 453,
462 (Ind. 2001)). Our supreme court has summarized the applicable standard of review as
follows:
Damages are particularly a jury determination. Appellate courts will not
substitute their idea of a proper damage award for that of the jury. Instead, the
court will look only to the evidence and inferences therefrom which support
the jury’s verdict. We will not deem a verdict to be the result of improper
considerations unless it cannot be explained on any other reasonable ground.
Thus, if there is any evidence in the record which supports the amount of the
award, even if it is variable or conflicting, the award will not be disturbed.
10
Id. (quoting Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App. 1994), trans. denied
(citations omitted)). Additionally, the court has noted:
Our inability to actually look into the minds of the jurors is, to a large extent,
the reason behind the rule that we will not reverse if the award falls within the
bounds of the evidence. We cannot invade the province of the jury to decide
the facts and cannot reverse unless the verdict is clearly erroneous.
Id. (quoting Annee v. State, 256 Ind. 686, 690, 271 N.E.2d 711, 713 (1971)).
We note that the jury’s assessment of damages here is part of a general verdict that
does not specify the legal theory upon which each award of compensatory damages was
based. Accordingly, we will address the respective compensatory damage awards pursuant to
Plaintiffs’ claims of negligence, breach of contract, and fraud.
Section 3.1 – Negligence
It is well established that negligence damages are awarded to compensate an injured
party fairly and adequately for the loss sustained. Bader v. Johnson, 732 N.E.2d 1212, 1220
(Ind. 2000). “Broadly stated, the person injured by the negligence of another is entitled to
reasonable compensation.” Ritter v. Stanton, 745 N.E.2d 828, 843 (Ind. Ct. App. 2001),
trans. denied (2002), cert. denied. “Reasonable compensation” refers to an amount that
would reasonably compensate the plaintiff for bodily injury and for pain and suffering and
also takes into account past, present, and future expenses reasonably necessary to the
11
plaintiff’s treatment. Foddrill v. Crane, 894 N.E.2d 1070, 1079 (Ind. Ct. App. 2008), trans.
denied (2009).5
The evidence most favorable to the jury’s verdict indicates that Brittany suffered
personal injuries due to mold growth in her apartment caused by latent defects in the
apartment, such defects being known to Hi-Tec but unknown to Brittany and which Hi-Tec
failed to disclose. The record establishes that from October 2009 through February 2012,
Brittany incurred $5222 in medical expenses related to her injuries. In addition to the
medical expenses for her injuries, Brittany claimed damages for her pain and suffering.
Under the circumstances, the jury’s award of $10,000 in compensatory damages to Brittany
was reasonable and supported by the evidence.
However, we find the compensatory damages awards to Kendall and Lorie to suffer
from a fatal flaw under a negligence theory: insufficient evidence. First, the evidence is
undisputed that neither Kendall nor Lorie ever lived, or intended to live, in the apartment,
and thus they did not enjoy a relationship with Hi-Tec which would impose a duty in
negligence. See Erwin, 928 N.E.2d at 616 (tenant may recover for injuries caused by latent
defects of which landlord was aware but which were unknown to tenant and not disclosed by
landlord). Nevertheless, Plaintiffs seek to justify the jury’s award to each of them by arguing
that Kendall and Lorie paid Brittany’s medical expenses that were incurred due to Hi-Tec’s
negligence. We agree with Hi-Tec that regardless of who actually paid those expenses,
5
Although not implicated here, “reasonable compensation” also includes all financial losses suffered,
or to be suffered, by the plaintiff as a result of the inability to engage in his or her usual occupation. Foddrill,
894 N.E.2d at 107.
12
Brittany is an adult and Brittany is the injured party here. The medical expenses incurred by
Brittany are her damages, not her parents’.
Plaintiffs assert that Kendall and Lorie are entitled to compensation for Hi-Tec’s
negligence because they “bought items for the apartment, which were destroyed or damaged
by the mold exposure.” Appellee’s Br. at 32. Plaintiffs direct us to no evidence in the record
to indicate what any of those alleged items were, much less any evidence reflecting even a
speculative value for those items. Plaintiffs maintain that Kendall and Lorie should also be
compensated because they made telephone calls, met with Hi-Tec management, took trips to
and from Plymouth, spent time cleaning, helped Brittany move, and drove Brittany to
medical appointments. Kendall and Lorie are essentially seeking speculative damages for
their inconvenience in dealing with their adult daughter’s injuries. In addition to a complete
lack of supporting evidence, the Plaintiffs direct us to no authority, and we are unaware of
any, that such damages are compensable absent a legal duty owed to them by Hi-Tec. As
there is no evidence to support the jury’s compensatory damages awards to Kendall and Lorie
pursuant to a negligence theory, we turn to their breach of contract claim.
3.2 – Breach of Contract
A party injured by a breach of contract may recover the benefit of the bargain. INS
Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566, 577 (Ind. Ct. App. 2003), trans. denied.
The damages claimed for such a breach must be the natural, foreseeable, and proximate
consequence of the breach. Id. While an aggrieved party must be compensated, he or she
should not be placed in any better position. Id. A damage award must be based upon some
13
fairly defined standard, such as cost of repair, market value, established experience, rental
value, loss of use, loss of profits, or direct inference from known circumstances. Fowler v.
Campbell, 612 N.E.2d 596, 603 (Ind. Ct. App. 1993). The damages claimed also must be the
natural, foreseeable, and proximate consequence of the breach. Id.“Because a lease is a contract, the essence of the landlord-tenant relationship is
contractual in nature.” Ind. Dep’t of Natural Res. v. Lick Fork Marina, Inc., 820 N.E.2d 152,
157 (Ind. Ct. App. 2005), trans. denied, cert. denied. We emphasize that the only parties to
the lease agreement here were Brittany and Kendall. It is undisputed that Lorie did not sign
the lease. Therefore, Lorie had no contractual obligations to Hi-Tec pursuant to the lease,
nor Hi-Tec to Lorie. The fact that Lorie completed a rental application and was referred to as
a lessee in the lease is of no moment. Consequently, there is no legal basis to support an
award of compensatory damages to Lorie on a breach of contract theory.
The evidence most favorable to the verdict indicates that Hi-Tec breached its lease
with Kendall and Brittany when it failed to perform its duties pursuant to the lease. The only
breach of contract damages alleged in the record were the amount of rent paid to Hi-Tec in
the amount of $2360. Although the evidence is conflicting as to who paid the rent, a
reasonable jury could have concluded that Kendall paid the lion’s share of the rent and that
he was entitled to recover the benefit of the bargain pursuant to the lease. Accordingly, there
is sufficient evidentiary support for a compensatory damages award to Kendall in the amount
of $2360.
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Section 3.3 – Fraud
In an action for fraud, the injured party is entitled to compensation for damages
suffered as a result of the fraudulent representation. Stoll v. Grimm, 681 N.E.2d 749, 758
(Ind. Ct. App. 1997). Damages for fraud are those which are the natural and proximate
consequences of the act complained of. Marathon Oil Co. v. Collins, 744 N.E.2d 474, 482
(Ind. Ct. App. 2001).
As with Kendall’s and Lorie’s alleged negligence damages, Plaintiffs direct us to no
evidence to establish that Kendall and Lorie suffered any damages as a result of Hi-Tec’s
alleged fraud. 6 Again, Kendall and Lorie are improperly seeking compensation for injuries
and losses suffered by their adult daughter. They are not so entitled.
In sum, we conclude that there is an adequate basis in the record to support the jury’s
$10,000 compensatory damages award to Brittany and the trial court did not abuse its
discretion when it denied Hi-Tec’s motion to correct error as to her damages. However, the
only evidence in the record to support an award to Kendall is for rent paid in the amount of
$2360. Accordingly, we remand to the trial court with instructions to revise its judgment and
reduce the award to Kendall to that amount. See Ind. Appellate Rule 66(C)(4) (appellate
court may order the entry of judgment of damages in the amount supported by the evidence).
The damages award to Lorie cannot be explained on any reasonable ground, or pursuant to
6
In their brief, Plaintiffs imply that Kendall and Lorie are entitled to damages for the “sorrow and
worry” Hi-Tec caused them by renting a mold-infested apartment to their daughter. See Appellee’s Br. at 32;
Munsell v. Hambright, 776 N.E.2d 1272, 1281 (Ind. Ct. App. 2002) (a plaintiff may recover emotional distress
damages if fraudulent conduct “involves the invasion of a legal right that by its very nature is likely to provoke
an emotional disturbance.”), trans. denied (2003). However, the jury was never instructed on this element of
damages, and Plaintiffs direct us to no testimony in the record to support this theory of recovery.
15
any legal theory, and we therefore reverse that award in total.
Section 4 – Punitive Damages Award
Finally, Hi-Tec asserts that there was insufficient evidence to support the jury’s
decision to award punitive damages to Brittany.7 Punitive damages are those designed to
punish the wrongdoer and to discourage the wrongdoer and others from similar conduct in
the future. America’s Directories Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d 1059,
1069 (Ind. Ct. App. 2005), trans. denied (2006). Proof that a tort was committed does not
necessarily establish the right to punitive damages. Gresser v. Dow Chem. Co., 989 N.E.2d
339, 349 (Ind. Ct. App. 2013), trans. denied. “Punitive damages are not commonplace and
rarely appropriate” and the “plaintiff has an especially heavy burden of proof at trial.” Yost v.
Wabash College, 3 N.E.3d 509, 524 (Ind. 2014). “Punitive damages may be awarded only if
there is clear and convincing evidence that the defendant acted with malice, fraud, gross
negligence, or oppressiveness which was not the result of mistake of fact or law, honest error
or judgment, overzealousness, mere negligence, or other human failing.” Gresser, 989
N.E.2d at 349. In determining whether sufficient evidence warrants imposition of punitive
damages, we do not reweigh the evidence or assess witness credibility and consider only the
probative evidence and the reasonable inferences supporting the verdict. Stroud v. Lints, 790
N.E.2d 440, 443 (Ind. 2003).
7
Hi-Tec does not challenge the amount of the punitive damages award.
16
Here, Plaintiffs presented ample evidence from prior tenants, a contractor, and a
maintenance worker which indicated that Hi-Tec had experienced prior issues with moisture
and mold in several of its below-grade apartments. Considering only the probative evidence
and the reasonable inferences supporting the verdict, a reasonable jury could find by clear
and convincing evidence that Hi-Tec’s conduct in failing to disclose to Brittany the moisture
and mold issues of its below-grade apartments was malicious, fraudulent, grossly negligent,
or oppressive, and not merely the result of honest error, overzealousness, mere negligence, or
other human failing. We will not second-guess the jury’s decision to punish Hi-Tec for such
behavior, and we affirm the jury’s $15,000 punitive damages award.8
Affirmed in part, reversed in part, and remanded with instructions.
BAKER, J., and BARNES, J., concur.
8
Hi-Tec argues that the punitive damages award was “encouraged or motivated by the nature of the
altered, blackened and lined through” mold provision that was redacted from the lease exhibits shown to the
jury. Appellant’s Br. at 25. In response to Hi-Tec’s motion in limine requesting that the jury not be informed
that the mold provision in the lease was found void as against public policy, the trial court determined that
redaction of the provision from the exhibits was an appropriate solution. Hi-Tec did not object to this decision
by the trial court or to the subsequent admission of the exhibits as evidence. Failure to object to the admission
of evidence at trial results in waiver of any alleged error on appeal. Reed, 2 N.E.3d at 107. Thus, Hi-Tec has
waived this argument. Moreover, the trial court instructed the jurors that they were not to draw any inferences
regarding the redactions. Tr. at 586. “A timely and accurate admonition is presumed to cure any error in the
admission of evidence.” Banks v. State, 761 N.E.2d 403, 405 (Ind. 2002) (citation omitted). Hi-Tec has
established no prejudice or reversible error.
17