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MARK A. URICK and HEATHER URICK, - page 16 / 19





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constructive fraud because the judgment may be sustained upon the basis of actual fraud



Both Huizinga and the Uricks challenge the trial court’s damages award. We will

sustain the trial court’s damages award so long as the amount is supported by sufficient

evidence in the record, Ballard, et al. v. Harman, 737 N.E.2d 411 (Ind. Ct. App. 2000),

and is not contrary to law. Marathon Oil Co. v. Collins, 744 N.E.2d 474. In determining

whether an award is within the scope of the evidence, we neither reweigh the evidence

nor judge the witnesses’ credibility. Id.

Generally, a party bringing an action for fraud must elect between two remedies.

A.J.’s Auto. Sales, Inc. v. Freet, 725 N.E.2d 955 (Ind. Ct. App. 2000), trans. denied. The

first option is to affirm the contract, retain the benefits thereof, and seek damages. Id.

The other option is to rescind the contract, return any benefits received therefrom, and

return to the status quo. Id. A party seeking rescission bears the burden of proving his

right to rescind and his ability to return any property received under the contract. Id. An

election to rescind a contract customarily forecloses the possibility of recovering general

damages. Id. When a party elects rescission, he is entitled only to be returned to the

status quo. Id. Returning a rescinding party to the status quo generally requires returning

the money or other things received or paid under the contract, together with

6 The trial court concluded: (1) “Huizinga [] should be awarded full compensatory damages on his claim for actual fraud” or, “[a]lternatively,” “Huizinga [] should be awarded full compensatory damages on his claim for constructive fraud . . . [,]” Appellant’s Appendix at 2, 3; and (2) “[e]ither theory of fraud . . . supports a judgment in favor of Huizinga . . . .” Id. at 11.


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