MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 30 2018, 9:19 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT Stephen A. Kray LaPorte, Indiana
IN THE COURT OF APPEALS OF INDIANA
Maryann Wolanin and James A. August 30, 2018 Bridges, Court of Appeals Case No. Appellants/Defendants, 18A-PL-93 Appeal from the LaPorte Superior v. Court The Honorable Jeffrey L. Thorne, Susan Balanow, Judge Appellee/Plaintiff. Trial Court Cause No. 46D03-1704-PL-792
Pyle, Judge.
Statement of the Case [1] Appellants, Maryann Wolanin and James Bridges (collectively, “Sellers”),
appeal the trial court’s denial of their Trial Rule 12(C) motion for judgment on
the pleadings. Concluding that Sellers have not met their burden to show that
Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018 Page 1 of 7 there are no circumstances under which Appellee Susan Balanow (“Buyer”)
could be granted relief, we affirm the trial court’s ruling.
[2] We affirm.
Issue Whether the trial court erred by denying Sellers’ motion for judgment on the pleadings.
Facts [3] On April 21, 2018, Buyer filed a complaint (the “Complaint”) in the LaPorte
Superior Court alleging that she was entitled to specific performance and
damages for Sellers’ alleged breach of contract. Specifically, Buyer alleged that
Sellers failed to perform their obligations pursuant to a purchase agreement
(“Purchase Agreement”) for the sale of Sellers’ house to Buyer. In her
Complaint, Buyer alleged the following, in pertinent part:
3. On or about February 18, 2017, [Buyer] and [Sellers] entered into a certain [Purchase Agreement]. Copy of the Purchase Agreement is attached hereto as Exhibit “A” and incorporated herein by this reference.
*****
6. Pursuant to Paragraph (f) of the Purchase Agreement, the transaction was scheduled to close on or before April 18, 2017.
7. The Purchase Agreement was complete, certain, fair, just, and equal.
8. On or about April 17, 2017, [Sellers] notified [Buyer] that [Sellers] did not intend to proceed with the closing.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018 Page 2 of 7 (App. Vol. 2 at 5-6). Attached as an exhibit (“Exhibit A”) to the Complaint
was a copy of the Purchase Agreement, which contained the following
provisions regarding offer, acceptance, and expiration:
(x) ACCEPTANCE DATE AND BINDING CONTRACT: The Acceptance Date will be the date of full execution (signing) of this Agreement by all parties, that is, the date one party accepts all terms of the other party’s written and signed Offer or Counteroffer, evidence by the accepting party’s signature and date on the Offer or Counteroffer. The Acceptance must be promptly communicated (by any reasonable and usual mode) to the other party, thereby making this Agreement a legally Binding Contract. Communications to the real estate Licensee assisting a party as that party’s agent or facilitator (or to that Licensee’s Broker) will be considered to be communication to that party. True executed copies of the Contract must be promptly delivered to all parties.
(y) OFFER EXPIRATION DATE & TIME: April 18th 2017 [handwritten in blank]. If not Accepted by the date & time (or if blank, by the date and time on Lines 11-13), this Offer will expire. However, at any time before the other party’s communication of Acceptance, the party making the Offer may withdraw the Offer by communicating the withdrawal to the other party, and confirm the withdrawal by the prompt delivery of a written Notice of Withdrawal.
[4] (App. Vol. 2 at 10) (emphasis in original). On the lines immediately below
these two provisions, Buyer and Sellers each had signed and dated the Purchase
Agreement on February 18, 2017. Just above Sellers’ signatures on line 167
(“Line 167”), line 166 (“Line 166”) contained checkboxes next to the following
four actions: (1) “Accepted;” (2) “Rejected;” (3) “Countered on this form;” and
(4) “Countered on a separate Counteroffer form.” (App. Vol. 2 at 10) (emphasis
in original). All four boxes remained unchecked.
[5] On June 8, 2017, Sellers filed an answer (the “Answer”) in which they
admitted, among others, Paragraphs 3, 6, 7, and 8 of Buyer’s Complaint. On
Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018 Page 3 of 7 that same date, Sellers also filed a Rule 12(C) motion for judgment on the
pleadings, arguing that the trial court should enter judgment in their favor
because Buyer had failed to state a claim upon which relief could be granted.
Specifically, Sellers argued:
The [Purchase Agreement] is not one of finality but has numerous contingencies that allowed the parties to not proceed after the date they signed it on 2-18-17, to wit:
A.) Line 54, buyer obtaining a loan;
B.) Line 67, appraisal value at least equal to purchase price;
C.) Lines 69-70, buyers [sic] satisfaction with property inspection;
D.) Lines 160-163, buyer may withdraw the offer at anytime before seller’s acceptance by April 18th, 2017.
E.) Line 166, provides a box for [Sellers] to mark when they decided to accept the purchase offer … and [Sellers] did not mark nor initial that box.
F.) A Fortiori in paragraph 8, of the compliant [sic] [Buyer] admits that prior to the deadline date of April 18 th, 2017, “[Sellers] notified [Buyer] that [Sellers] did not intend to proceed with the closing.”
(App. Vol 2 at 12) (emphasis in original).
[6] On October 4, 2017, the trial court held a hearing on Sellers’ motion, and both
parties presented arguments. Following the hearing, the trial court issued an
order denying Sellers’ motion for judgment on the pleadings. Sellers then filed
a motion requesting certification for interlocutory appeal, which the trial court
granted. Our Court subsequently accepted jurisdiction over the matter, and
Sellers now appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018 Page 4 of 7 Decision [7] Initially, we note that Buyer did not file an appellee’s brief. When an appellee
fails to submit a brief, we do not undertake the burden of developing an
argument for the appellee. Tisdial v. Young, 925 N.E.2d 783, 784 (Ind. Ct. App.
2010). Rather, we reverse the trial court’s judgment if the appellant establishes
prima facie error, defined in this context as “at first sight, on first appearance, or
on the face of it.” Id. at 784-85 (internal quotation omitted). We affirm where
an appellant is unable to meet this burden. Id.
[8] Sellers argue that the trial court should have granted their motion for judgment
on the pleadings because they notified Buyer before the Purchase Agreement’s
offer acceptance deadline that they did not intend to proceed with the sale. We
review de novo a trial court’s grant or denial of a Rule 12(C) motion for
judgment on the pleadings. Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind. Ct.
App. 2012). We accept as true the well-pleaded material facts alleged in the
complaint and base our ruling solely on the pleadings. Id. A Rule 12(C)
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 30 2018, 9:19 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT Stephen A. Kray LaPorte, Indiana
IN THE COURT OF APPEALS OF INDIANA
Maryann Wolanin and James A. August 30, 2018 Bridges, Court of Appeals Case No. Appellants/Defendants, 18A-PL-93 Appeal from the LaPorte Superior v. Court The Honorable Jeffrey L. Thorne, Susan Balanow, Judge Appellee/Plaintiff. Trial Court Cause No. 46D03-1704-PL-792
Pyle, Judge.
Statement of the Case [1] Appellants, Maryann Wolanin and James Bridges (collectively, “Sellers”),
appeal the trial court’s denial of their Trial Rule 12(C) motion for judgment on
the pleadings. Concluding that Sellers have not met their burden to show that
Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018 Page 1 of 7 there are no circumstances under which Appellee Susan Balanow (“Buyer”)
could be granted relief, we affirm the trial court’s ruling.
[2] We affirm.
Issue Whether the trial court erred by denying Sellers’ motion for judgment on the pleadings.
Facts [3] On April 21, 2018, Buyer filed a complaint (the “Complaint”) in the LaPorte
Superior Court alleging that she was entitled to specific performance and
damages for Sellers’ alleged breach of contract. Specifically, Buyer alleged that
Sellers failed to perform their obligations pursuant to a purchase agreement
(“Purchase Agreement”) for the sale of Sellers’ house to Buyer. In her
Complaint, Buyer alleged the following, in pertinent part:
3. On or about February 18, 2017, [Buyer] and [Sellers] entered into a certain [Purchase Agreement]. Copy of the Purchase Agreement is attached hereto as Exhibit “A” and incorporated herein by this reference.
*****
6. Pursuant to Paragraph (f) of the Purchase Agreement, the transaction was scheduled to close on or before April 18, 2017.
7. The Purchase Agreement was complete, certain, fair, just, and equal.
8. On or about April 17, 2017, [Sellers] notified [Buyer] that [Sellers] did not intend to proceed with the closing.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018 Page 2 of 7 (App. Vol. 2 at 5-6). Attached as an exhibit (“Exhibit A”) to the Complaint
was a copy of the Purchase Agreement, which contained the following
provisions regarding offer, acceptance, and expiration:
(x) ACCEPTANCE DATE AND BINDING CONTRACT: The Acceptance Date will be the date of full execution (signing) of this Agreement by all parties, that is, the date one party accepts all terms of the other party’s written and signed Offer or Counteroffer, evidence by the accepting party’s signature and date on the Offer or Counteroffer. The Acceptance must be promptly communicated (by any reasonable and usual mode) to the other party, thereby making this Agreement a legally Binding Contract. Communications to the real estate Licensee assisting a party as that party’s agent or facilitator (or to that Licensee’s Broker) will be considered to be communication to that party. True executed copies of the Contract must be promptly delivered to all parties.
(y) OFFER EXPIRATION DATE & TIME: April 18th 2017 [handwritten in blank]. If not Accepted by the date & time (or if blank, by the date and time on Lines 11-13), this Offer will expire. However, at any time before the other party’s communication of Acceptance, the party making the Offer may withdraw the Offer by communicating the withdrawal to the other party, and confirm the withdrawal by the prompt delivery of a written Notice of Withdrawal.
[4] (App. Vol. 2 at 10) (emphasis in original). On the lines immediately below
these two provisions, Buyer and Sellers each had signed and dated the Purchase
Agreement on February 18, 2017. Just above Sellers’ signatures on line 167
(“Line 167”), line 166 (“Line 166”) contained checkboxes next to the following
four actions: (1) “Accepted;” (2) “Rejected;” (3) “Countered on this form;” and
(4) “Countered on a separate Counteroffer form.” (App. Vol. 2 at 10) (emphasis
in original). All four boxes remained unchecked.
[5] On June 8, 2017, Sellers filed an answer (the “Answer”) in which they
admitted, among others, Paragraphs 3, 6, 7, and 8 of Buyer’s Complaint. On
Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018 Page 3 of 7 that same date, Sellers also filed a Rule 12(C) motion for judgment on the
pleadings, arguing that the trial court should enter judgment in their favor
because Buyer had failed to state a claim upon which relief could be granted.
Specifically, Sellers argued:
The [Purchase Agreement] is not one of finality but has numerous contingencies that allowed the parties to not proceed after the date they signed it on 2-18-17, to wit:
A.) Line 54, buyer obtaining a loan;
B.) Line 67, appraisal value at least equal to purchase price;
C.) Lines 69-70, buyers [sic] satisfaction with property inspection;
D.) Lines 160-163, buyer may withdraw the offer at anytime before seller’s acceptance by April 18th, 2017.
E.) Line 166, provides a box for [Sellers] to mark when they decided to accept the purchase offer … and [Sellers] did not mark nor initial that box.
F.) A Fortiori in paragraph 8, of the compliant [sic] [Buyer] admits that prior to the deadline date of April 18 th, 2017, “[Sellers] notified [Buyer] that [Sellers] did not intend to proceed with the closing.”
(App. Vol 2 at 12) (emphasis in original).
[6] On October 4, 2017, the trial court held a hearing on Sellers’ motion, and both
parties presented arguments. Following the hearing, the trial court issued an
order denying Sellers’ motion for judgment on the pleadings. Sellers then filed
a motion requesting certification for interlocutory appeal, which the trial court
granted. Our Court subsequently accepted jurisdiction over the matter, and
Sellers now appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018 Page 4 of 7 Decision [7] Initially, we note that Buyer did not file an appellee’s brief. When an appellee
fails to submit a brief, we do not undertake the burden of developing an
argument for the appellee. Tisdial v. Young, 925 N.E.2d 783, 784 (Ind. Ct. App.
2010). Rather, we reverse the trial court’s judgment if the appellant establishes
prima facie error, defined in this context as “at first sight, on first appearance, or
on the face of it.” Id. at 784-85 (internal quotation omitted). We affirm where
an appellant is unable to meet this burden. Id.
[8] Sellers argue that the trial court should have granted their motion for judgment
on the pleadings because they notified Buyer before the Purchase Agreement’s
offer acceptance deadline that they did not intend to proceed with the sale. We
review de novo a trial court’s grant or denial of a Rule 12(C) motion for
judgment on the pleadings. Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind. Ct.
App. 2012). We accept as true the well-pleaded material facts alleged in the
complaint and base our ruling solely on the pleadings. Id. A Rule 12(C)
motion for judgment on the pleadings is to be granted “only where it is clear
from the face of the complaint that under no circumstances could relief be
granted.” Id. (internal quotation omitted). For purposes of a Rule 12(C)
motion, “[t]he ‘pleadings’ consist of a complaint and an answer, a reply to any
counterclaim, an answer to a cross-claim, a third-party complaint, and an
answer to a third-party complaint.” Id. “Pleadings” also include any written
instruments attached to a pleading, pursuant to Indiana Trial Rule 9.2. LBM
Realty, LLC v. Mannia, 981 N.E.2d 569, 576 n. 10 (Ind. Ct. App. 2012); see also
Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018 Page 5 of 7 Trial Rule 10(C) (“A copy of any written instrument which is an exhibit to a
pleading is a part thereof for all purposes.”). Therefore, in addition to the
Complaint and Answer, we will consider the Purchase Agreement attached to
the Complaint.
[9] When construing the meaning of a written instrument, our primary task is to
determine and effectuate the intent of the parties. Bell v. Bryant Co., Inc., 2
N.E.3d 716, 720 (Ind. Ct. App. 2013). We attempt to determine the parties’
intent at the time the contract was made, which is ascertained by the language
used to express their rights and duties. Id. (internal quotation omitted). If a
contract’s language is unambiguous, the parties’ intent is determined from the
“four corners of the instrument.” Id. Conversely, if a contract’s language is
ambiguous or uncertain, its meaning must be determined by examining
extrinsic evidence, which is a task usually reserved for the fact-finder. Id.
[10] In this case, neither party alleges that the Purchase Agreement is ambiguous or
uncertain. Buyer pleads in Paragraph 7 of her Complaint that the Purchase
Agreement was “complete, certain, fair, just, and equal,” and Sellers admit to
Paragraph 7 in their Answer. (App. Vol. 2 at 5). Rather, Sellers contend that
because the pleadings show that they notified Buyer prior to the Purchase
Agreement’s offer acceptance deadline that they did not intend to proceed with
the closing, no circumstances can exist under which Buyer is entitled to relief.
We disagree.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018 Page 6 of 7 [11] A material fact at issue in this case is whether Sellers permissibly withdrew
from the Purchase Agreement after signing on Line 167, and the pleadings
alone do not resolve this question. Although Sellers argue that the Purchase
Agreement contained “numerous contingencies that allowed the parties not to
proceed after the date they signed it,” (App. Vol. 2 at 12), it is not clear from the
face of the pleadings which of these contingencies, if any, applied to the Sellers’
actions. Indeed, the evidence may reveal that none of these contingencies
applied to Sellers’ actions and that they breached the Purchase Agreement by
refusing to attend the scheduled closing. Because the pleadings leave
unresolved a material issue of fact, a judgment on the pleadings is not
appropriate here. Cf. Waldrip, 976 N.E.2d at 110 (“If the pleadings present no
material issues of fact and the acts shown by the pleadings clearly entitle a party
to judgment, an entry of judgment on the pleadings is appropriate”).
[12] Accordingly, Sellers failed to meet their burden under Rule 12(C). We
therefore affirm the trial court.
[13] Affirmed.
Najam, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018 Page 7 of 7