Court of Appeals of Indiana | Memorandum Decision 47A01-1406-PL-254 | February 25, 2015 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Jane Dall Wilson

Andrew M. McCoy

Faegre Baker Daniels LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Rachel Staggs,

Appellant-Defendant,

v.

Corena Buxbaum,

Appellee-Plaintiff

February 25, 2015

Court of Appeals Case No.

47A01-1406-PL-254

Appeal from the Lawrence Circuit 

Court.

The Honorable Andrea K. McCord, 

Judge.

Cause No. 47C01-0912-PL-1522

Baker, Judge.
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[1] Rachel Staggs appeals the trial court’s order ruling in favor of Corena 

Buxbaum’s complaint against Staggs for fraudulent misrepresentation and 

awarding damages of $94,798.32. Staggs raises the following arguments: 

(1) there is insufficient evidence supporting the trial court’s finding that Staggs’s 

representations regarding the condition of her residence’s septic system were 

fraudulent; (2) the trial court should reconsider its exemplary damages award in 

light of a recent Indiana Supreme Court opinion; and (3) the trial court 

erroneously calculated Buxbaum’s damages. We affirm with respect to the 

finding of fraudulent misrepresentation and remand with instructions to 

reconsider and recalculate the damages award.

Facts

[2] 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.

[3] 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.

[4] Buxbaum was interested in purchasing the Property. She visited the house 

twice and did not notice any moisture problems in the basement. Buxbaum 
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hired an inspector, who identified a radon problem on the Property but did not 

identify any other problems.

[5] 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.

[6] 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.

[7] 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.

[8] Over the course of the trial, the following evidence was submitted to the trial 

court:
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 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.

 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.

[9] On March 4, 2014, the trial court ruled in favor of Buxbaum. Among other 

things, the trial court found as follows:

2. . . . [Staggs] had actual knowledge of the defects in both the 

basement and the septic system prior to filling out the 
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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 filed a motion to 

correct errors, which the trial court denied. Staggs now appeals.

Discussion and Decision

[10] Initially, we note that Buxbaum has not filed a brief in this appeal. When an 

appellee does not submit a brief, we do not undertake the burden of developing 

arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. 

App. 2002). Instead, we apply a less stringent standard of review and may 

reverse if the appellant establishes prima facie error. Id.
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I. Fraudulent Misrepresentation Claim

[11] First, Staggs argues that the trial court erroneously found in favor of Buxbaum 

on her claim of fraudulent misrepresentation. In considering this claim, we will 

only set aside the trial court’s judgment if it is clearly erroneous, which occurs 

only when there is no evidence supporting the factual findings or the findings 

fail to support the judgment. Reum v. Mercer, 817 N.E.2d 1267, 1271 (Ind. Ct. 

App. 2004). We will neither reweigh the evidence nor assess witness credibility 

in our review of the trial court’s judgment, and will consider only the evidence 

supporting the judgment and the reasonable inferences that may be drawn 

therefrom. Id.

[12] To succeed in a claim for fraudulent misrepresentation, a claimant must prove 

the following by a preponderance of the evidence: 

“(i) material misrepresentation of past or existing facts by the party to 

be charged (ii) which was false (iii) which was made with knowledge 

or reckless ignorance of the falseness (iv) was relied upon by the 

complaining party and (v) proximately caused the complaining 

party[’s] injury.” 

Reed v. Reid, 980 N.E.2d 277, 292 (Ind. 2012) (quoting Rice v. Strunk, 670 

N.E.2d 1280, 1289 (Ind. 1996)). A seller of a home “may be held liable for 

fraudulent misrepresentations made on the Sales Disclosure Form if the buyer 

can prove the seller’s actual knowledge of the defect at the time the form is 

completed.” Hizer v. Holt, 937 N.E.2d 1, 7-8 (Ind. Ct. App. 2010).

[13] Staggs complains that much of the evidence supporting the trial court’s 

judgment should not have been admitted for various reasons, including the 
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prohibition against hearsay testimony. Staggs acknowledges, however, that no 

objections to this evidence were raised at trial. Consequently, any argument 

related to the admission of this evidence has been waived for purposes of 

appeal.1

[14] As noted above, Staggs’s stepdaughter and stepson both testified that she had 

actual knowledge of the lack of a septic system and of the frequent problem of 

water in the basement. And Nordhoff testified that in 2007, Staggs had made a 

comment to him implying that she was well aware of the problem with water in 

the basement. This evidence supports the trial court’s judgment in favor of 

Buxbaum on her claim of fraudulent misrepresentation. Staggs’s remaining 

arguments to the contrary amount to a request that we reweigh the evidence 

and assess witness credibility, which we decline to do. We find no error in the 

trial court’s judgment in favor of Buxbaum.

II. Damages Award

A. Treble Damages

[15] Staggs next argues that the trial court should reconsider its award of treble 

damages in light of our Supreme Court’s recent decision in Wysocki v. Johnson, 

18 N.E.3d 600 (Ind. 2014), which was handed down after the trial court issued 

its order in this case. In reviewing a trial court’s damages award, we will 

 

1 We express no opinion as to whether Staggs has a claim for legal malpractice against the attorney who 

represented her on the first day of the bench trial.
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neither reweigh the evidence nor assess witness credibility, and will reverse only 

if it is not within the scope of the evidence before it. Hooker v. Norbu, 899 

N.E.2d 655, 658 (Ind. Ct. App. 2008).

[16] In this case, the trial court awarded damages pursuant to the Crime Victim 

Relief Act (CVRA). Ind. Code § 34-24-3-1 et seq. Under the CVRA, a claimant 

may be entitled to treble damages under certain circumstances. In Wysocki, our 

Supreme Court clarified the circumstances that may lead to exemplary damages 

under the CVRA. While the trial court still retains the discretion to award 

exemplary damages, it must first determine the level of the defendant’s 

culpability. The Court emphasized that “not every intentional tort is 

necessarily ‘so heinous as to require exemplary damages,’ or as to warrant 

quasi-criminal CVRA liability at all.” Id. at 606 (quoting Citizens Nat’l Bank of 

Evansville v. Johnson, 637 N.E.2d 191, 195 (Ind. Ct. App. 1994)). Instead, such 

liability is “a matter of the factfinder’s discretionary judgment of whether the 

defendant is criminally culpable.” Id. (emphasis original). A plaintiff is not 

required to prove liability beyond a reasonable doubt, but the factfinder should 

make an “assessment of criminality” before imposing “quasi-criminal liability” 

for exemplary damages. Id. at 606.

[17] In this case, the trial court did not have the guidance of our Supreme Court 

when it made its ruling herein. Instead, it merely found that Buxbaum had 

proved “that there was the requisite specific intent to make a finding of fraud 

for the purposes of awarding treble damages.” Appellant’s App. p. 15. Given 

that an additional finding of criminal culpability is now required to support an 
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award of treble damages, we remand this cause to the trial court to reconsider 

its damages award in light of Wysocki.

B. Calculation of Damages

[18] Finally, Staggs argues that the trial court erred in calculating damages. We 

agree. The trial court calculated Buxbaum’s out-of-pocket damages as 

$21,939.58, tripled those damages for a total of $65,818.74, and then added 

those two figures (plus attorney fees) together. In effect, therefore, the trial 

court actually quadrupled, rather than tripled, Buxbaum’s actual damages. This 

Court has made clear that it is inappropriate under the CVRA to award 

“compensatory damages . . . plus . . . treble damages[.]” Storm Damages 

Specialists of Am. v. Johnson, 984 N.E.2d 660, 666-67 (Ind. Ct. App. 2013) 

(emphasis original). Consequently, we remand to the trial court with 

instructions to recalculate Buxbaum’s damages. If the trial court determines 

that Buxbaum is still entitled to treble damages in light of Wysocki, 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).

The judgment of the trial court is affirmed in part and remanded for further 

proceedings consistent with this opinion.

Vaidik, C.J., and Riley, J., concur.