Michael Orrico and Mara Orrico, Appellants v. Harley Snyder and Joann Snyder, Appellees (2025)

MEMORANDUM DECISION

[1] Michael Orrico and Mara Orrico (the “Orricos”) appeal the trial court's entry of summary judgment in favor of Harley Snyder and Joann Snyder (the “Snyders”) on the Orricos’ fraud claim against the Snyders. We affirm and remand.

Facts and Procedural History

[2] The undisputed material facts reveal that the Snyders lived in a house on Thornbury Drive in Valparaiso (the “House”) from 2001 until 2021. On October 11, 2020, the Orricos and the Snyders signed an agreement (the “Purchase Agreement”) for the Orricos to purchase the House from the Snyders for $850,000. The Orricos did not have an inspection performed on the House prior to signing the Purchase Agreement and agreed to purchase the House “AS IS,” and all parties signed an “AS IS” Addendum to the Purchase Agreement. Appellants’ Appendix Volume II at 36, 41. The Addendum provided in pertinent part that the “Seller shall not be responsible for the repair, replacement or modification of any deficiencies, malfunctions or mechanical defects on the Property ․ including but not limited to ․ drainage or moisture conditions ․ or damage by the presence of pests, mold or other organisms.” Id. at 41.

[3] As part of the sale transaction, the Snyders provided to the Orricos a Seller's Residential Real Estate Sales Disclosure form that they had filled out and signed on August 29, 2020, when they first listed the House for sale. The disclosure form provides that the “Seller states that the information contained in this Disclosure is correct to the Seller's CURRENT ACTUAL KNOWLEDGE” as of the date signed. Id. at 21. In the box, “Are there moisture and/or water problems in the basement, crawl space area, or any other area,” the Snyders checked the box indicating an answer of “No.” Id. at 22. After the Purchase Agreement was signed but prior to closing, the Snyders experienced an issue that they believed to be caused by an ice dam on the roof of the House which caused leaking in one of the skylights. Harley Snyder immediately notified the Orricos about the issue, made a claim with his insurance company, Liberty Mutual, and arranged for the Orricos to directly receive any payments pertinent to that claim. After being alerted to the recent incident, the Orricos observed visible water damage on the drywall near that skylight, but still “felt comfortable” with proceeding with closing on the House. Appellants’ Appendix Volume III at 61. On the date of closing, March 19, 2021, the Snyders again signed the Seller's Residential Real Estate Sales Disclosure form indicating that they had no actual knowledge of any current moisture problems in the House.¹ At the time of the sales transaction, the Snyders were both in their late eighties. Also at that time, Harley Snyder was a licensed real estate broker, and Michael Orrico was a Doctor of Dental Surgery.²

[4] After the Orricos closed on the home, in April 2021, they hired a contractor, Chad Kuehl, to remodel the kitchen, add a bathroom, and repair the area around one of the skylights where the recent suspected ice dam occurred. Kuehl “opened up the wall [and] removed drywall from the ice dam area, and that was the first sign of different issues and more extensive issues” in that area, including mold. Id. at 62. In May 2021, regarding the ice dam insurance claim, Liberty Mutual sent an engineer from Donan Engineering Co., Inc., to inspect the damage. The Donan report indicated that water “did not intrude” along the skylights as “a result of ice damming” but as a result of “flashing deficiencies and sealant deterioration.” Id. at 188. The report noted that the “sealant along the aluminum frames/flashing of skylights above the living room has not deteriorated, which indicates prior attempts to repair a previous leak within the building envelope.” Id. The report concluded that the “combination of water stains in the wood framing, black mold/fungal growth, and wood rot ․ is an indication of ongoing water intrusion throughout the skylights and atrium” and that stains on the subfloor “directly below the skylights” and rotting in the wood framing “in the crawlspace directly below the atrium window,” were indications of “long-term water issues” and “long-term moisture exposure,” and not caused by “a recent event.” Id. at 189. In August 2021, Kuehl “remediated the mold in the entire house” by removing “drywall to the studs. He removed the electrical, the heating and air, and the plumbing so he could access and spray[ ] the entire house with a bleach-like product.” Id. at 65.

[5] On September 2, 2021, the Orricos filed a complaint against the Snyders alleging fraud. Specifically, the complaint quoted the disclosure form and the question “Are there moisture and/or water problems in the basement, crawl space area, or any other area” to which the Snyders answered “No.” Appellants’ Appendix Volume II at 14. The complaint alleged that the Snyders made “representations” that “there were no moisture or water problems anywhere in the House,” that the Snyders “knew these statements [were] false or were recklessly ignorant as to their falsity,” and that the Orricos “relied on” the “misrepresentations and purchased the house.” Id. at 17. The Orricos requested compensatory damages because they “are now saddled with the cost” of “remediating mold infestation” and “other damage to the House,” as well as punitive damages based upon allegations that the Snyders’ “false representations ․ amounted to willful and wanton misconduct” and that they acted “maliciously, fraudulently, oppressively, or with gross negligence.” Id.

[6] On June 28, 2024, the Snyders filed a motion for summary judgment. They argued that there was no genuine issue of material fact that: (1) they “lacked actual knowledge of any existing water problems ․ at the time they signed their disclosures[;]” and (2) they “reasonably relied on reports from their hired contractors” that “the defects had been repaired.” Appellants’ Appendix Volume III at 6-8. The Snyders further alleged that “[t]he Purchase Agreement between [them] and [the Orricos] provides for an award of attorneys’ fees to the prevailing party in any legal or equitable proceeding related to the sale transaction.” Id. at 5 (citation omitted). In support of summary judgment, the Snyders designated the Purchase Agreement, which included the “AS IS” Addendum; the residential real estate disclosure form; certain deposition testimony of Harley Snyder; certain deposition testimony of their former housekeeper Kimberly Dillingham; certain deposition testimony of the Orricos; a Mold Sampling Report obtained by the Orricos’ contractor; and the affidavits of Harley Snyder and JoAnn Snyder.

[7] The Orricos filed their response to the summary judgment motion on August 12, 2024. Their designated evidence included certain deposition testimony of Dillingham; certain deposition testimony of Harley Snyder; insurance claim records from 2018; the Donan Engineering Report; and contractor invoices indicating the Snyders made drywall repairs around the living room skylight in the House in June and December 2018 and January and May 2019.

[8] The trial court held a hearing on August 29, 2024. On September 11, 2024, the court issued an order granting summary judgment in favor of the Snyders. On November 13, 2024, the court entered an order awarding the Snyders $69,507.65 in attorney fees pursuant to the Purchase Agreement and indicated that all issues were determined and that its order constituted a final appealable judgment.

Discussion

[9] The Orricos argue that this Court “should reverse the grant of summary judgment because the evidence strongly supports findings that the Snyders had actual knowledge that their Disclosures were false and deliberately decided not to repair the chronic leaks.” Appellants’ Brief at 16 (emphasis omitted). They further argue that the “evidence refutes the Snyders’ claim that they reasonably relied on professionals to tell them the leaks had been repaired.” Id. at 20.

[10] The Snyders respond that their properly designated evidence establishes “that [they] lacked actual knowledge of existing defects at the time they signed the Disclosure, which shifted the burden to the Orricos to show there were genuine disputes of material fact.” Appellees’ Brief at 12. They assert that the Orricos did not meet that burden. They also argue that there are no “genuine disputes of material fact regarding Harley Snyder's testimony that he relied on representations from contractors he hired.” Id. at 13. They argue that “[s]ummary judgment should be affirmed and this case remanded for an award of appellate attorneys’ fees” pursuant to the Purchase Agreement. Id.

[11] “We review summary judgment de novo, applying the same standard as the trial court: Drawing all reasonable inferences in favor of ․ the non-moving parties, summary judgment is appropriate if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (citations and quotations omitted). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Id. (citation omitted).

[12] We consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the summary judgment motion. Ind. Trial Rule 56(C), (H). We resolve “all factual inferences and all doubts as to the existence of a material issue” in favor of the nonmovant. Zaragoza v. Wexford of Ind., LLC, 225 N.E.3d 146, 151 (Ind. 2024) (internal quotation marks omitted) (quoting Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012)). In so doing, “we give careful scrutiny to make sure the nonmovant's day in court is not improperly denied.” Id. (internal quotation marks omitted) (quoting Siner v. Kindred Hosp. Ltd. P'ship, 51 N.E.3d 1184, 1187 (Ind. 2016)).

[13] “The party moving for summary judgment bears the burden of making a prima facie showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.” Abbott v. State, 183 N.E.3d 1074, 1079 (Ind. 2022). The movant “can make this showing when undisputed evidence affirmatively negates a required element” of the nonmovant's claim. Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368, 377 (Ind. 2022). Only if the movant meets this prima facie burden does the burden then shift to the nonmovant to “come forward with contrary evidence showing an issue for the trier of fact.” Abbott, 183 N.E.3d at 1079.

[14] A trial court's grant of summary judgment is “clothed with a presumption of validity.” Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993). The party appealing the grant or denial of summary judgment has the burden of persuading this Court that the trial court's ruling was improper. Munster Steel Co. v. CPV Partners, LLC, 186 N.E.3d 143, 148 (Ind. Ct. App. 2022). In the present case, the trial court did not enter findings of fact and conclusions of law in support of its judgment. Although the findings of fact and conclusions of law a trial court may enter in support of its summary judgment do not bind us, they facilitate appellate review. Matter of Supervised Est. of Kent, 99 N.E.3d 634, 637 (Ind. 2018). Unless the law has been incorrectly applied to the facts, we will affirm the trial court's ruling based on any theory supported by record evidence. Markey v. Est. of Markey, 38 N.E.3d 1003, 1006-1007 (Ind. 2015).

[15] We begin by noting that the Orricos’ fraud claim is grounded upon the Residential Real Estate Sales Disclosure form that the Snyders submitted to them. Specifically, in their complaint, the Orricos point to a single alleged misrepresentation on the disclosure form regarding the Snyders’ answer, which was in the negative, to the question “Are there moisture and/or water problems in the basement, crawl space area, or any other area?” Appellants’ Appendix Volume II at 14. In their motion for summary judgment, the Snyders argued that “the designated evidence establishes that the Snyders lacked actual knowledge of any existing water problems at the time they signed the Sales Disclosure Form.” Appellants’ Appendix Volume III at 6.

[16] The Residential Real Estate Sales Disclosure statutes are found in Indiana Code Chapter 32-21-5 and apply to the sale of “residential real estate that contains not more than four (4) residential dwelling units.” Ind. Code § 32-21-5-1(a). A seller must complete and provide to a prospective buyer a disclosure form that discloses certain information, including “the known condition of the following: (A) The foundation. (B) The mechanical systems. (C) The roof. (D) The structure. (E) The water and sewer systems. (F) Additions that may require improvements to the sewage disposal system. (G) Other areas that the Indiana real estate commission determines are appropriate.” Ind. Code § 32-21-5-7(a)(1). However, the form “is not a warranty” by the seller, and “the disclosure form may not be used as a substitute for any inspections or warranties that the prospective buyer or owner may later obtain.” Ind. Code § 32-21-5-9. The seller is not liable for an “error, inaccuracy, or omission” of any of the required information delivered to the prospective buyer if such error, inaccuracy, or omission “was not within the actual knowledge” of the seller “or was based on information provided by ․ another person with a professional license or special knowledge who provided a written or oral report or opinion” that the seller “reasonably believed to be correct.” Ind. Code § 32-21-5-11(1); Boehringer v. Weber, 2 N.E.3d 807, 812 (Ind. Ct. App. 2014), trans. denied.

[17] In Johnson v. Wysocki, the Indiana Supreme Court held that the seller may be liable for fraudulent misrepresentations made on the disclosure form if he or she had actual knowledge that the representation was false at the time he or she completed the form. 990 N.E.2d 456, 466 (Ind. 2013). Actual knowledge must be shown in order to show a failure to comply with the sales disclosure statutes, and a showing that an owner failed to disclose a defect of which he should have known is not sufficient. Hays v. Wise, 19 N.E.3d 358, 362 (Ind. Ct. App. 2014). “[T]he element of actual knowledge can be inferred or ‘may be proven by circumstantial evidence notwithstanding the absence of a plaintiff's admission of such knowledge.’ ” Id. (quoting Johnson, 990 N.E.2d at 466).

[18] This Court's decision in Breeden Revocable Tr. v. Hoffmeister-Repp, 941 N.E.2d 1045 (Ind. Ct. App. 2010), is instructive. In Breeden, the seller was in the lower level of her house when she observed water in a heating duct, and after having a sump pump installed, never again noticed water in the ducts. Id. at 1047. More than ten years later, just before placing the house on the market, she hired a construction manager to investigate a “swampy” area of her backyard. Id. at 1048. He informed her that “her property had a drainage problem.” Id. A few months later, the seller checked the box “no” on the real estate disclosure form submitted to the buyer in response to the question “[a]re there moisture and/or water problems in the basement, crawl space area, or any other area?” Id.

[19] Following the purchase of the home, the buyer “became aware of damage to the back part of the house's structural walls and of the defective condition of the duct work used to climatize the residence.” Id. at 1049. He further “noticed that the duct work was corroded and lying in standing water, which had invaded the trenches.” Id. The buyer sued the seller alleging, among other things, that the seller “made statements of material fact in connection with the sale of her residence that constituted fraud[.]” Id. The seller moved for summary judgment, and the trial court granted summary judgment in favor of the seller. Id.

[20] We affirmed the trial court on appeal. We observed that, “[w]ith respect to the moisture in the air ducts, [the seller] testified by deposition that she did not know when she sold her home that the duct work was defective and in need of repair” because it was her understanding that “everything that needed to be fixed” was fixed by the contractor she hired. Id. at 1054.³ Under the circumstances, we concluded that the buyer failed to show that the seller had actual knowledge of the moisture problems in the duct work at the moment she completed the disclosure form and thus, summary judgment on the buyer's fraud claim was appropriate. Id.

[21] Similarly, in Kashman v. Haas, 766 N.E.2d 417, 418-419 (Ind. Ct. App. 2002), the sellers discovered and repaired termite damage in their home in 1994 and 1997. After the 1997 repairs, the contractor performing the work orally assured the sellers that all known termite damage had been repaired. Id. at 419. Approximately one year later, when the sellers were selling their home, they provided the buyers a disclosure form indicating that their home had no damage from wind, flood, termites, or rodents. Id. The buyers hired an independent home inspector who found no termite damage, however, after the sale was completed, the buyers discovered termite damage in the home and filed suit against the sellers asserting breach of contract and fraud. Id. The sellers moved for summary judgment claiming that they had no actual knowledge of termite damage in their house and that they relied upon a professional's indication that no damage existed. Id. at 422. The trial court granted the sellers’ motion.

[22] On appeal, this Court upheld the decision of the trial court granting summary judgment for the sellers.⁴ We held that the sellers “reasonably relied upon the contractor's assurances that all damage had been repaired when they completed and signed the Disclosure Form [in March 1998].” Id. We stated that “we discovered no designated evidence that reveals that Sellers had actual knowledge of any existing termite damage to the home at the time they completed the Disclosure Form and sold the home to Buyers.” Id.

[23] As in Breeden and Kashman, we have discovered no designated evidence that reveals that the Snyders had actual knowledge of any existing moisture problems in the House at the time they completed the disclosure form and sold the home to the Orricos. The Snyders designated Harley Snyder's affidavit which stated that “[a]t the time I signed the Real Estate Disclosure Form on August 29, 2020, ․ I had no knowledge of any current leaks or other water issues” in the House. Appellants’ Appendix Volume III at 51. He stated, “Any time I noticed a water leak” at the house “I hired a professional contractor to repair the leak. The contractors always told me that the repairs were complete when they finished and never told me about any ongoing problems.” Id. at 50. He stated, “The last time I noticed a water leak” at the House “was prior to May 30, 2019, and I hired a contractor to repair that leak. Repairs were completed in May 2019.” Id.⁵

[24] The Snyders also designated Dillingham's testimony that, during her employment with the Snyders from 2004 to 2017, she noticed “a few” water leaks “around the chimney” in the House. Id. at 43. She stated that she observed leaks after “the snow would melt off the roof,” that she observed these leaks approximately three or four times over the course of more than ten years, and that she knew that the leaks were “always repaired” because she would clean up the drywall dust from the repairs. Id. at 45. The Snyders further designated Michael Orrico's testimony that no water damage or moisture issue, beyond the recent and visible damage from the suspected ice dam, was discovered until their contractor “opened up the wall.” Id. at 62. The Snyders additionally designated a mold sampling test performed by the Orricos’ contractor which “did not reveal any elevated concentrations [of mold spores] in the samples collected inside the residence” and only found elevated surface concentrations on the skylight framing and subfloor that were revealed following removal of drywall. Id. at 73. We think this evidence is sufficient to meet the Snyders’ prima facie burden to establish their lack of actual knowledge of an existing leak or moisture problem in the House, and the burden shifted to the Orricos to come forward with contrary evidence showing an issue for the trier of fact.⁶ The Orricos’ designated evidence falls short.

[25] Indeed, the Orricos designated no evidence that the Snyders had actual knowledge of an existing leak or moisture problem in the House at the time they signed the disclosure form. Rather, the undisputed evidence reveals that, when and if the Snyders encountered prior water leaks, whether those leaks originated from the chimney or the skylights, they hired contractors to repair the problems, they believed the problems were fixed, and they were never advised of any ongoing problems.⁷ The Orricos suggest that because it has now been discovered that those “repairs were ineffective,” it may be inferred that the Snyders knew about the “water damage” caused by what the Orricos characterize as the “House's chronic leaks.” Appellants’ Reply Brief at 9.

[26] While we recognize that actual knowledge can be inferred or proven by circumstantial evidence notwithstanding the absence of an admission of such knowledge, that inference must be reasonable. We agree with the Snyders that, while “[t]here is no dispute that the Orricos’ demolition of the home revealed evidence of significant past water intrusion ․ and resulting damage from that intrusion,” there is no designated evidence from which it may be reasonably inferred that the Snyders had actual knowledge of that damage or any ongoing moisture problem. Appellees’ Brief at 22. At most, the Orricos’ designated evidence creates a material issue of fact as to what the Snyders should have known, not what they did know.

[27] This includes the Orricos’ fraud allegation as it relates to the existence of mold. The undisputed evidence demonstrates that the mold was simply not discoverable until “taking out the walls and going to the studs.” Appellants’ Appendix Volume II at 65. What was not open to observation to the Orricos was not open to observation to the Snyders. See Pennycuff v. Fetter, 409 N.E.2d 1179, 1180 (Ind. Ct. App. 1980) (holding no showing of fraud where there was “absolutely no evidence that the [seller] knew, during the sale negotiations, of their negligence [in causing water pipes to burst] or that the pipes had burst, if indeed they were at the time. What was not open to observation to the [buyers] was not open to the [seller]”), reh'g denied. We cannot say that the trial court erred in entering summary judgment in favor of the Snyders.

[28] As noted by the Snyders, the Purchase Agreement specifically provides, “Any party to this Agreement who is the prevailing party in any legal or equitable proceeding against any other party brought under or with relation to the Agreement or transaction shall be additionally entitled to recover court costs and reasonable attorneys’ fees from the non-prevailing party.” Appellants’ Appendix Volume III at 31. The trial court awarded fees to the Snyders as the prevailing parties below, and the Snyders request that we remand to the trial court for an award of appellate attorney fees. The Orricos make no argument that the prevailing party is not entitled to such fees.

[29] For the foregoing reasons, we affirm the trial court's entry of summary judgment and its award of attorney fees, and we remand for a determination of the Snyders’ appellate attorney fees.

[30] Affirmed and remanded.

FOOTNOTES

1.   Although the Orricos cite this as a relevant incident as to the Snyders’ knowledge of what the Orricos characterize as “chronic” leaks and “water damage” in the House, see Appellants’ Brief at 14, they appear to concede that the Snyders’ actual knowledge of any moisture issue specifically caused by the suspected ice damming incident is not part of their fraud claim as there would have been “no point” for the Snyders to edit the disclosure form to account for the new incident because the Orricos were made aware of it prior to closing. Reply Brief at 7; Appellants’ Appendix Volume III at 86.

2.   We note that the “Binding Letter of Intent” signed by the parties prior to the House sale transaction contains a disclosure under the heading “Brokerage” that mistakenly refers to “Purchaser,” presumably Michael Orrico, as being a licensed real estate broker along with a license number. Appellants’ Appendix Volume II at 19. The Snyders’ Answer to the Orricos’ complaint reveals that Harley Snyder, and not Michael Orrico, was the licensed real estate broker with that license number.

3.   With respect to the buyer's additional allegation regarding the seller's failure to disclose “structural problems with the building,” we observed that the buyer stated in his deposition that he did not believe the seller “knew that there was rotting going on in the exterior walls,” but that he believed she should still be liable for selling him “a totally flawed piece of merchandise.” Breeden, 941 N.E.2d at 1053. We concluded that the buyer's admission of the seller's lack of knowledge “regarding the damage to the exterior walls falls short of the proof required for fraud as to damage to the structural integrity of the residence.” Id.

4.   In Kashman, the sellers unsuccessfully moved for summary judgment and consequently filed a motion to certify the order for interlocutory appeal. Kashman, 766 N.E.2d at 422. The trial court, sua sponte, reconsidered and reversed its earlier ruling and granted the sellers’ summary judgment motion. Id. The buyer filed an unsuccessful motion to correct error and then appealed to this Court. Id.

5.   In her designated affidavit, JoAnn Snyder similarly averred that at the time she signed the disclosure form, she “had no knowledge of any current leaks or other water issues” in the Home. Appellants’ Appendix Volume III at 53. She further averred that she “was not involved in any repairs” performed at the House, that she relied on her husband to handle any repairs, and that she believed all prior leaks had been repaired by contractors her husband hired. Id.

6.   To the extent that the Orricos suggest that “self-serving affidavits” cannot be used to make a prima facie showing in support of summary judgment, see Reply Brief at 13, we disagree. First, we note that the Snyders designated far more evidence in support of summary judgment than simply their affidavits. Moreover, this Court has stated that “the designation of a competent, self-serving affidavit will suffice to make a prima facie showing” in support of summary judgment. Cox v. Mayerstein-Burnell Co., Inc., 19 N.E.3d 799, 804 (Ind. Ct. App. 2014).

7.   We observe that the parties spend a considerable amount of time arguing about whether some of the House's prior known water leaks should be characterized as originating from the skylights or from the roof, because the skylights are on the roof. We reject the Snyders’ assertion that the Orricos are prohibited from relying “on any evidence” involving the roof itself because they did not specifically “identify the roof disclosures as misrepresentations in their Complaint” and therefore they failed “to comply with Trial Rule 9(B), which mandates specificity in pleading.” Appellees’ Brief at 15. Although we acknowledge that Ind. Trial Rule 9(B) requires that the “circumstances constituting fraud ․ be specifically averred” in the plaintiff's complaint, see State ex rel. Harmeyer v. Kroger Co., 114 N.E.3d 488, 492 (Ind. Ct. App. 2018) (recognizing Trial Rule 9(B) as providing an “exception” to the mere notice pleading requirements of Ind. Trial Rule 8(A)), trans. denied, the Rule simply requires a plaintiff “claiming fraud to fill in a fairly specific picture of the allegations” in the complaint. Kapoor v. Dybwad, 49 N.E.3d 108, 132 (Ind. Ct. App. 2015) (citation omitted), trans. denied. We think the Orricos’ complaint was sufficiently specific to include a fraud allegation as to any known current moisture problem, which could include a problem originating from the roof. However, to the extent the Orricos suggest that evidence that the Snyders failed to repair or replace the roof after making a claim and receiving insurance proceeds to do so supports an inference that the Snyders had actual knowledge of “chronic and unrepaired roof leaks” which caused the House's “moisture and/or water problems,” we do not find that inference reasonable. Appellants’ Reply Brief at 14. Regarding the roof specifically, Harley Snyder averred, “I hired Dave Boyer of Boyer Roofing, a licensed contractor, to inspect my roof to determine whether repairs were needed for hail damage. Mr. Boyer told me no repairs were needed. I relied on Mr. Boyer's representations and did not have the roof replaced.” Appellants’ Appendix Volume III at 50.

Brown, Judge.

Judges Bailey and Weissmann concur. Bailey, J., and Weissmann, J., concur.