Opinion

Humphries v. Ables

  • 789 N.E.2d 1025
  • 2003 Ind. App. LEXIS 1052
  • 2003 WL 21384632
Court
Indiana Court of Appeals
Filed
Jun 16, 2003
Status
Published
Author
Kirsch
On the bench
Sullivan, Sharpnack, Kirsch
Cited by
27 cases
Authority
More cited than 9.8%

holding that when a contract term provides that attorney fees are recoverable, appellate attorney fees may also be awarded

How later courts described this case

  • holding that when a contract term provides that attorney fees are recoverable, appellate attorney fees may also be awarded
  • "A party seeking specific performance of a real estate contract must prove that the’contract obligations of that party have been substantially performed or that an offer to do so has been made.”
  • marketable title is unlikely to be involved in litigation arising from problems of unclear title, such as liens

Written by the judges who cited it.

The opinion

KIRSCH, Judge,

concurring in part and dissenting in part.

I fully concur in the majority decision regarding the issues of fraud and marketable title; from its decision regarding specific performance, however, I respectfully dissent. I believe that specific performance of a real estate contract is proper only where the remedy at law is inadequate. While specific performance may be granted as a matter of course to the purchaser because real estate is unique, in the typical case 12 the seller's remedy at law in *1037 the form of an action for money damages will be sufficient to fully compensate the plaintiff. I see nothing in the facts of this case to indicate that the sellers have an inadequate remedy at law to justify the grant of specific performance.

. In some instances, we have affirmed the grant of specific performance to the seller where it was shown that the remedy at law will not suffice. Thus, in Ridenour v. France, 442 N.E.2d 716 (Ind.Ct.App.1982), specific performance was found appropriate where the house located on the property had been destroyed by fire after the risk of loss had passed to the buyers. Similarly, in Salin Bank & Trust Co. v. Violet U. Peden Trust, 715 N.E.2d 1003 (Ind.Ct.App.1999), specific performance to the vendor was found appropriate in a real estate option contract where the purchaser had possession of the real estate for a number of years and had significantly changed the character of the property incor *1037 porating the commercial building which was the subject of the option contract into two other building which the purchaser owned.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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