Sylvia M. Rodriquez v. John R. Wyse (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 14, 2015
• Docket: 49A02-1412-CT-820
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Oct 14 2015, 9:31 am 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.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Amy L. Cueller Norman L. Reed The Cueller Law Office The Law Office of Norman Reed Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Sylvia M. Rodriguez, October 14, 2015

Appellant-Plaintiff, Court of Appeals Case No. 49A02-1412-CT-820 v. Appeal from the Marion Superior Court. The Honorable Robert R. Altice, Jr., John R. Wyse, Judge. Appellee-Defendant. Cause No. 49D05-1201-CT-1344

Friedlander, Senior Judge

[1] Sylvia M. Rodriguez appeals from a jury’s verdict against her in a breach of

contract claim she brought against John R. Wyse, contending that the trial

court erred by denying her motion for summary judgment and allowing the

matter to proceed to trial. We affirm.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015 Page 1 of 11 [2] Rodriquez entered into a conditional sales contract with Wyse for the purchase

of his home located in Indianapolis. At the time Rodriguez signed the contract,

she was accompanied by her friend, Chico Quiros, who is bi-lingual and who

interpreted the contract for her because she does not speak, read, or write

English. Also present was Rodriguez’s boyfriend, Ranulfo Ocampo.

[3] The purchase price for the home was $50,000.00, with a down payment of

$5,000.00. Rodriguez agreed to pay monthly payments of $525.00, which

included $50.00 per month for estimated taxes and $50.00 per month for

insurance. Rodriguez made sixteen payments toward the purchase of the

house. Some of the payments were made on time, others were not timely, and

the last payment was not a complete monthly payment.

[4] On December 27, 2011, a fire occurred which caused damage to the house.

The day after the fire, Rodriguez and Ocampo met with a representative of

Nationwide Insurance Company. In 1997, Wyse had purchased an Allied

Group Insurance Homeowner’s Policy for his home from Darryl Gadberry, an

agent for AMCO/Allied Group Insurance Company, subsidiaries of

Nationwide. Once Gadberry became aware that Wyse had moved from the

property and began using it as a rental property, he cancelled the old policy and

issued a new one with AMCO in March 1999 insuring the dwelling structure

but not the personal contents. This policy was in effect at the time of the fire.

Rodriguez learned in her meeting with the representative of Nationwide that

Wyse and not Rodriguez was the named insured on the AMCO policy.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015 Page 2 of 11 [5] On January 12, 2012, Rodriguez brought suit against Wyse and AMCO

Insurance Company for breach of contract and negligent misrepresentation,

seeking recovery of the insurance proceeds less the remaining balance on the

contract plus interest and a temporary restraining order to prevent AMCO from

paying the insurance proceeds to Wyse. The trial court granted Rodriguez’s

petition for temporary restraining order, and ordered AMCO to tender the

insurance proceeds of $86,690.00 to the Marion County Clerk. AMCO did so

and was eventually dismissed from the action.

[6] On May 31, 2013, Rodriguez filed her motion for summary judgment against

Wyse seeking a judgment in her favor for $185,950.00. Wyse responded to

Rodriguez’s motion, which included his counterclaims against Rodriguez for

breach of contract and tortious interference with his insurance contract. He

also sought partial summary judgment in relation to his counterclaims.

[7] The trial court set the motions for hearing, after which the trial court entered its

order denying Rodriguez’s motion for summary judgment and Wyse’s motion

for partial summary judgment finding that there remained genuine issues of

material fact. The trial court’s order granted in part Rodriquez’s motion to

strike certain evidence designated by Wyse in support of his own motion for

partial summary judgment and in response to Rodriguez’s motion for summary

judgment.

[8] PNC Bank, N.A., who was not a party to the litigation, filed a motion to

intervene in the action, asserting an interest in the AMCO insurance proceeds.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015 Page 3 of 11 PNC claimed that the promissory note entered into with Wyse, which was

secured by a mortgage on the house, was the basis for its interest in the

proceeds.

[9] The matter proceeded to a jury trial on November 5, 2014. At the conclusion of

the trial, the jury returned a verdict in favor of Wyse and against Rodriguez on

her breach of contract claim, making no monetary award to Wyse or any

decision concerning the disbursement of the insurance proceeds. The trial court

entered judgment on the jury’s verdict that same day. On December 2, 2014,

Rodriguez filed her notice of appeal from the trial court’s denial of her motion

for summary judgment.

[10] On December 5, 2014, Rodriguez filed a motion for emergency stay pending

appeal, which this Court granted in part and denied in part on December 17,

2014. The trial court was ordered to stay the disbursement of the AMCO

insurance proceeds as to Wyse but directed the court to disburse $16,502.11 to

PNC. Insurance proceeds totaling $70,187.89 remain with the Marion County

Clerk pending resolution of this appeal. PNC was allowed to intervene in this

appeal and asks this Court to allow the prior disbursement to it to be affirmed.

[11] Rodriguez claims that the trial court erred by denying her motion for summary

judgment and allowing the matter to proceed to trial. In an Indiana summary

judgment proceeding, “the party seeking summary judgment must demonstrate

the absence of any genuine issue of fact as to a determinative issue, and only

then is the non-movant required to come forward with contrary evidence.”

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015 Page 4 of 11 Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.

1994). T.R. 56(C) provides in pertinent part:

At the time of filing [a] motion [for summary judgment] or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto. The judgment sought shall be rendered forthwith 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 a judgment as a matter of law. [12] Summary judgment should not be entered where material facts conflict or

where conflicting inferences are possible. Miller v. Monsanto Co., 626 N.E.2d

538 (Ind. Ct. App. 1993). When we review the grant or denial of a motion for

summary judgment our standard of review is the same as that used by the trial

court. J.C. Spence & Assocs., Inc. v. Geary, 712 N.E.2d 1099 (Ind. Ct. App. 1999).

We must determine whether there is a genuine issue of material fact and

whether the moving party is entitled to judgment as a matter of law. Id. In

resolving those inquiries, we consider only the evidence that has been

specifically designated to the trial court. Id. The party appealing the trial

court’s ruling has the burden of persuading this court that the trial court’s

decision was erroneous. Id. A summary judgment determination shall be made

from any theory or basis found in the designated materials. Id. “We give

careful scrutiny to the pleadings and designated materials, construing them in a

light most favorable to the non-movant.” Id. at 1102 (quoting Diversified Fin.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015 Page 5 of 11 Sys., Inc. v. Miner, 713 N.E.2d 293, 297 (Ind. Ct. App. 1999)). The fact that the

parties make cross-motions for summary judgment does not alter our standard

of review. Wank v. Saint Francis College, 740 N.E.2d 908 (Ind. Ct. App. 2000),

trans. denied.

[13] The trial court’s denial of Rodriguez’s motion for summary judgment is correct

for a number of reasons as there were genuine issues of material fact that

precluded entry of summary judgment.

[14] The conditional sales contract provided under section four that Rodriguez, the

purchaser, would “maintain all taxes and insurance on said property until all

payments have been paid in full to the seller.” Appellant’s App. p. 52. Under

section twelve of the contract, Wyse, the seller, agreed to “purchase fire and

dwelling insurance on said property and be responsible for all tax payments”

during the term of the contract. Id. at 53. The parties also signed a document

explaining the components of the monthly payments, which included $50.00 for

taxes and $50.00 for insurance. Id. at 54.

[15] Rodriguez alleged in her complaint that Wyse was in breach of contract by

failing to pay Rodriguez the proceeds of the insurance policy less the unpaid

balance due on the contract plus interest. She further alleged that Wyse was in

breach of the contract by failing to purchase an insurance policy covering

Rodriguez’s personal property in the first place.

[16] Rodriguez designated her own affidavit in support of her motion. In paragraph

thirteen of her affidavit, she stated that at the time she signed the contract she

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015 Page 6 of 11 wanted to purchase her own homeowner’s policy to insure the house and her

personal property. Id. at 41. She further stated that Wyse told her that she

needed to pay him for the insurance he already had obtained for the house, also

indicating that she need not buy additional insurance. Rodriguez also claimed

that she would not have paid Wyse each month for insurance had she known

that she was not a named insured on the policy and that the coverage Wyse

obtained on the house was as a rental property with no coverage for personal

belongings.

[17] Rodriguez also designated Ocampo’s affidavit in support of her motion. Id. at

51. In paragraph three of Ocampo’s affidavit he stated that he was present

when Wyse insisted that Rodriguez include the cost of the house insurance in

her monthly payment because Wyse already had insurance coverage for the

house. Ocampo claimed that Wyse told Rodriguez that there was no need for

her to purchase additional insurance. He further stated that he was present

when Rodriguez met with Gadberry and learned at that time that Rodriguez

was not a named insured on the policy.

[18] Wyse, in response to Rodriguez’s motion and in support of his own motion,

designated his affidavit. Id. at 93. Wyse claimed that at the time the contract

was signed, he informed Rodriguez, Ocampo, and Quiros that the insurance

covered only the dwelling. He stated that he told Rodriguez she would have to

purchase her own renter’s insurance in order to insure her personal property.

He also stated that Rodriguez discussed getting renter’s insurance with Ocampo

and Quiros, but decided not to do so. He further stated that he did not tell

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015 Page 7 of 11 Rodriguez that she would be a named insured on the policy he had purchased,

specifically explaining to her that his mortgage company required him to have

dwelling and fire insurance on the house. Wyse indicated that on several

occasions after the contract signing, he told Ocampo that the insurance did not

cover their personal property and advised them to obtain renter’s insurance,

which could be purchased at little cost.

[19] Wyse also designated the affidavit of his ex-wife, Karen Wyse, in support of his

response to Rodriguez’s motion and his own motion. Id. at 101. In her

affidavit, Karen stated that she was present on an occasion shortly after the

contract was signed when Wyse called Ocampo and explained that Wyse’s

insurance would not cover Rodriguez and Ocampo’s personal belongings.

[20] The contract did not contain a provision establishing the requirements that

Wyse name Rodriguez as an insured on the policy, or that he obtain insurance

coverage for her personal property. The contract also did not contain a

provision that Wyse must pay the insurance proceeds less the balance due on

the contract to Rodriguez. Additionally, the affidavits of Wyse, his ex-wife,

Karen, Ocampo, and Rodriguez establish genuine issues of material fact which

preclude the entry of summary judgment on Rodriguez’s complaint. The trial

court did not err by denying Rodriguez’s motion for summary judgment.

[21] Next, Wyse claims on cross-appeal that the trial court erred by denying his

motion for partial summary judgment. In his motion for partial summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015 Page 8 of 11 judgment Wyse claimed entitlement to the balance remaining on the

conditional sales contract, or $38,400.00.

[22] We first observe that Wyse prevailed at trial and the balance remaining with the

Marion County Clerk is more than sufficient to satisfy the remaining balance

due on the contract. “An issue is deemed moot when it is no longer ‘live’ or

when the parties lack a legally cognizable interest in the outcome of its

resolution.” Jones v. State, 847 N.E.2d 190, 200 (Ind. Ct. App. 2006), trans.

denied. “Stated differently, when we are unable to provide effective relief upon

an issue, the issue is deemed moot, and we will not reverse the trial court’s

determination ‘where absolutely no change in the status quo will result.’” Id.

(quoting In re Utley, 565 N.E.2d 1152, 1155 (Ind. Ct. App. 1991)). We will not

reverse the trial court’s denial of Wyse’s motion for partial summary judgment

on this issue.

[23] In Wyse’s motion, he also challenged Rodriguez’s allegation of negligent

misrepresentation with respect to insurance coverage, contending that he was

entitled to summary judgment on that issue as well. Wyse also challenges that

claim on appeal. In Rodriguez’s reply brief, she contends that the issue is moot

because that claim was withdrawn prior to trial. Reply Br. p. 4. The

Chronological Case Summary included in the Appellant’s Appendix does not

provide this Court with an entry verifying Rodriguez’s assertion. Nonetheless,

the jury verdict, which is included in the Appellant’s Appendix at page 123,

reflects a jury verdict “in favor of the Defendants, John R. Wyse and Karen

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015 Page 9 of 11 Wyse, and against the Plaintiff, Sylvia M. Rodriguez on her breach of contract

claim.”

[24] Consequently, Wyse did not suffer a judgment against him on Rodriguez’s

negligent misrepresentation claim. We find no error here as negligent

misrepresentation claims, while recognized as tort claims in Indiana, are

generally applied to only those individuals whose primary function is to render

a professional opinion. See, e.g., Indianapolis- Marion Cnty. Pub. Library v.

Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010) (claim brought against

engineering subcontractors); U.S. Bank, N.A. v. Integrity Land Title Corp., 929

N.E.2d 742 (Ind. 2010) (claim brought against title insurance company and title

commitment issuer); Greg Allen Constr. Co. v. Estelle, 798 N.E.2d 171 (Ind. 2003)

(claim brought against construction corporation and corporation’s president).

[25] Wyse also contends that Rodriguez’s counsel should be sanctioned under both

the trial and appellate rules for certifying that there is good ground to support

the pleading signed. Wyse focuses specifically on the negligent

misrepresentation claim. Indiana Trial Rule 11 grants the trial court discretion

to impose sanctions where a motion is determined to contain information the

attorney knows to be false. Ind. Trial Rule 11; Zwiebel v. Zwiebel, 689 N.E.2d

746 (Ind. Ct. App. 1997), trans. denied. Indiana Appellate Rule 66(E) permits

this Court to assess damages if an appeal is frivolous or in bad faith and may

include an award of attorney fees. “A strong showing is required to justify an

award of appellate damages, and the sanction is not imposed to punish mere

lack of merit, but something more egregious.” Harlan Bakeries, Inc. v. Muncy,

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015 Page 10 of 11 835 N.E.2d 1018, 1038 (Ind. Ct. App. 2005) (quoting Manous, LLC v.

Manousogianakis, 824 N.E.2d 756, 767-68 (Ind. Ct. App. 2005)).

[26] The record before us does not support a finding that Rodriguez’s counsel signed

a pleading containing allegations known to be false. Additionally, even though

Rodriguez did not prevail in the trial court or here on appeal, we are not led to

the conclusion that something more egregious than an argument lacking merit

occurred in this appeal such that sanctions are warranted. We decline to enter

the requested sanctions.

[27] Last, the trial court correctly released payment from the insurance proceeds to

PNC. We find no error in that decision.

[28] Judgment affirmed.

Baker, J., and Brown, J., concur.

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