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

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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

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The lease is dated August, 14, 2009. However, it appears that Brittany and Kendall signed the

agreement on August 15, 2009.

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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.

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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

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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.

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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

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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.

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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.

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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.

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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

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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.

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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

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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.

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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.

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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.

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