Nelson v. Anderson,

676 N.E.2d 735 (1997)

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Nature of the Case

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Facts

Nelson (P) contracted to sell their home to Anderson (D). The contract required D to pay an earnest deposit of $1,500 with the balance to be paid upon the delivery of a warranty deed conveying merchantable title, free and clear of all encumbrances, except those mentioned in the contract. The title insurance report indicated that the house was in violation of an applicable set back covenant. D made a specific, timely objection to this violation. P responded by obtaining written assurances from the title company that it would insure over the building line exception at issue. D objected and voiced concern over the ability to issue future policies on the property. D refused to close. P eventually sold to another at a lower price. D then filed suit to recover the earnest money deposit and P sued for damages. Each party filed a motion for summary judgment. The trial court granted D's motion. This appeal resulted.