Weiss v. Harper

MATHIAS, Judge,

dissenting.

I respectfully dissent.

The majority acknowledges that "[the purpose of special findings of fact is to provide reviewing courts with the theory upon which the judge decided the case, so they should contain a statement of the ultimate facts from which the trial court determines the legal rights of the parties." Bowman v. Bowman, 686 N.E.2d 921, 925 (Ind.Ct.App.1997) (citing Willett v. Clark, 542 N.E.2d 1354, 1357 (Ind.Ct.App.1989)). Further, "[on appeal, we construe the trial court's findings together liberally in support of the judgment; however, we may not add anything to the special findings of fact by way of presumption, inference, or intendment." Baltimore & Ohio R.R. Co. v. Taylor, 589 N.E.2d 267, 271 (Ind.Ct.App.1992), trans. denied (citation omitted).

In finding number 87, the trial court awarded $125,000 to the Harpers, "which represents the reasonable cost to repair the remaining defects" in their home. In response to Weiss's argument that finding number 87 is not sufficiently specific to support the damage award, the majority concludes:

As explained above, a review of the findings as a whole leaves no doubt as to which were the "remaining" defects referred to in finding no. 87.... In an action for money damages the facts "necessary for recovery" are facts that indicate there was damage and that support the amount of the award. The trial court explained in great detail in its 88 findings of fact the problems that gave rise to the damages it ultimately awarded. Its findings were sufficiently specific.

Op. at 207. I disagree.

At trial, the contested issues were 1) what defects still remained in the Har-pers' home, which required repair; 2) the method by which those defects were to be repaired; and 3) the cost to repair the remaining defects. The Harpers' witness, Dave Adams of Maxon Construction, and Weiss's witness, William Fox, gave conflicting testimony concerning those issues, particularly regarding which, among the alternative methods, was required to repair the siding and drywall in the house. For example, Adams testified that the exterior siding needed to be replaced, but Fox stated that the siding could be repaired at a significantly lower cost by either seraping and repainting it or by placing shims under the siding to allow moisture to evaporate. Tr. pp. 194, 439-41, 465-66. Despite lengthy testimony on this issue, the trial court never addressed it in its findings. The trial court simply found that the siding was not. back-primed, and as a result, it absorbed water, which "caused the paint on the exterior of the home to blister with water pockets, and caused the paint to peel." Appellant's App. p. 22.

Additionally, several recommended repairs listed in the Maxon Remodeling report discussed at trial were not specifically addressed by the trial court in its findings. For example, Dave Adams testified that the insulation in the north and south attics was damaged and needed to be replaced, but Weiss's expert disagreed. Tr. pp. 187-88, 438. The trial court made no finding with regard to whether the insulation was damaged or whether it should be replaced. Adams also determined that repairs were needed to the ceilings in vari*210ous rooms in the Harpers' home. See Ex. Vol., Plaintiff's Ex. 25; Tr. pp. 179-258 (testimony of Dave Adams). Once again, the trial court failed to make any findings concerning whether the ceilings required repair.

Given the trial court's $125,000 judgment, although the trial court never referenced the Maxon Remodeling report in its findings, I must presume that the trial court relied heavily on the report in issuing that damage award. The trial court was clearly entitled to choose whom to believe among the experts. However, as noted above, when our court reviews special findings of fact and conclusions of law, we may not add anything to those findings "by way of presumption, inference, or in-tendment." Therefore, under these circumstances, I reluctantly conclude that the trial court did not issue sufficiently specific findings to support its $125,000 judgment and would remand this case for a new trial limited to the issue of damages.12

ORDER

The Appellees, by counsel, have filed a Motion to Publish Memorandum Decision. They state that the Memorandum Decision clarifies the law as it relates to the degree of specificity required in findings of fact and conclusions of law entered by the trial court pursuant to Trial Rule 52, and the Appellees request that the Court publish its Memorandum Decision handed down on December 4, 2003.

Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:

1. The Appellee's Motion to Publish Memorandum Decision is GRANTED, and this Court's opinion handed down on December 4, 2003, marked Memorandum Decision, Not for Publication, is now ORDERED PUBLISHED.

All Panel Judges concur.

. Under most circumstances, remanding this case to the trial court to make specific findings of fact concerning the defects to be repaired would be an appropriate resolution. See Willett, 542 N.E.2d at 1358-59. However, Judge Lawrence, who presided over the bench trial, has since retired from the Marion Circuit Court, and now serves as a magistrate in the United States District Court for the Southern District of Indiana.