IN THE
Court of Appeals of Indiana Vince Caccavale, FILED Appellant-Defendant/Cross-Appellee Oct 11 2024, 9:00 am
CLERK Indiana Supreme Court Court of Appeals v. and Tax Court
Ranger Team Building, LLC, Appellee-Plaintiff/Cross-Appellant
October 11, 2024 Court of Appeals Case No. 23A-PL-1556 Appeal from the Lake Superior Court The Honorable Rehana Adat-Lopez, Judge Trial Court Cause No. 45D10-1703-PL-000020
Opinion by Judge Felix Judges Foley and Kenworthy concur.
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 1 of 20 Felix, Judge.
Statement of the Case [1] Vince Caccavale contracted to purchase Starke County real estate from Ranger
Team Building, LLC (“Ranger”). After the parties executed the contract but
before closing, Caccavale backed out of the deal. Ranger sued Caccavale for
breach of contract and obtained summary judgment in its favor as well as
attorneys’ fees. Caccavale now appeals and raises two issues for our review:
1. Whether the trial court erred in granting summary judgment in favor of Ranger; and 2. Whether the trial court erred in awarding attorneys’ fees to Ranger.
Ranger cross-appeals and raises two issues for our review:
1. Whether Caccavale’s appeal should be dismissed with prejudice; and 2. Whether the trial court erred in denying Ranger’s motion for mediation- related sanctions.
[2] Because we determine there are genuine issues of material fact preventing the
entry of summary judgment, we reverse and remand for a trial. Further, we
deny Ranger’s request for us to dismiss this case and affirm the trial court’s
denial of Ranger’s sanctions motions.
Facts and Procedural History [3] In December 2016, Caccavale, as buyer, and Ranger, as seller, entered into a
purchase agreement (the “Purchase Agreement”) for the sale of an
approximately 13-acre parcel located in rural Starke County for $57,500. The
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 2 of 20 Purchase Agreement contained the following relevant provisions concerning
termination of the transaction and release of liability:
J. FLOOD AREA/OTHER: If the property is located in a flood plain, Buyer may be required to carry flood insurance at Buyer’s expense. Revised flood maps and changes to Federal law may substantially increase future flood insurance premiums or require insurance for formerly exempt properties. Buyer should consult with one or more flood insurance agents regarding the need for flood insurance and possible premium increases. Buyer X may __ may not terminate this Agreement if the Property requires flood insurance. Buyer X may __ may not terminate this Agreement if the Property is subject to building or use limitations by reason of the location, which materially interfere with Buyer’s intended use of the Property.
K. INSPECTIONS: (Check appropriate paragraph number)
Buyer has been made aware that independent inspections disclosing the condition of the property are available and has been afforded the opportunity to require such inspections as a condition of this Agreement.
X 1. BUYER WAIVES THE RIGHT TO HAVE INDEPENDENT INSPECTIONS
Buyer WAIVES inspections and relies upon the condition of the Property based upon Buyer’s own examination and releases the Seller, the Listing and Selling Brokers and all licensees associated with Brokers from any and all liability relating to any defect or deficiency affecting the Property, which release shall survive the closing. Required FHA/VA or lender inspections are not included in this waiver.
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 3 of 20 __ 2. BUYER RESERVES THE RIGHT TO HAVE INDEPENDENT INSPECTIONS (including Lead- Based Paint)
Buyer reserves the right to have independent inspection in addition to any inspection required by FHA, VA, or Buyer’s lender(s). All inspections are at Buyer’s expense (unless noted otherwise or required by lender) by licensed independent inspectors or qualified independent contractors selected by Buyer within the following time periods. . . .
Appellant’s App. Vol. II at 69 (emphases in original).
[4] In an earlier appeal in this case, we set forth the underlying dispute as follows:
The sale’s closing date was set for January 30, 2017. After the parties executed the Purchase Agreement but before the closing date, [Ranger] allowed Caccavale to have a soil inspection done on the property. The soil inspector . . . concluded that the property was forested wetlands and that the Starke County Health Department would not issue a permit for a septic system necessary for Caccavale to construct a home on the property. Through his buyer’s agent, . . . Caccavale tendered Ranger a mutual release from the Purchase Agreement. Ranger declined to execute the release. Caccavale did not attend the scheduled closing on the property.
Ranger Team Bldg., LLC v. Caccavale, 163 N.E.3d 323, No. 20A-PL-547, slip op.
at ¶ 5 (Ind. Ct. App. 2020) (mem.).
[5] In March 2017, Ranger sued Caccavale for breach of contract and sought
specific performance of the Purchase Agreement, damages, and attorneys’ fees.
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 4 of 20 Both parties filed motions for summary judgment, and Judge John Pera
awarded summary judgment in favor of Ranger. Judge Pera specifically
reserved ruling on Ranger’s request for specific performance, setting a briefing
schedule and hearing for the parties to address the appropriate remedy. Judge
Pera left the bench before holding that hearing. Judge Thomas Webber became
the pro tempore Judge presiding over this matter, and after holding the remedy
hearing, he entered summary judgment in favor of Caccavale and dismissed the
case. Ranger filed a motion to correct error, arguing that the trial court violated
its due process rights by reversing Judge Pera’s summary judgment ruling
without notice. The trial court denied Ranger’s motion, and Ranger appealed.
In an unpublished decision, we concluded that the trial court abused its
discretion by denying Ranger’s motion to correct error, and we remanded the
case to the trial court. Ranger Team Bldg., 163 N.E.3d 323, No. 20A-PL-547,
slip op. at ¶¶ 20, 22–23.
[6] On remand, the trial court reinstated its order granting summary judgment in
favor of Ranger. After conducting a remedy hearing, the trial court determined
that Ranger had fully mitigated its monetary damages by selling the Starke
County property in 2022 for more than the purchase price that had been agreed
to by Ranger and Caccavale. Ranger argued that it should be awarded attorney
fees because it had prevailed in the lawsuit and a provision in the Purchase
Agreement permitted the award of attorney fees. After a hearing, the trial court
awarded Ranger $158,721.04 in attorneys’ fees and costs. This appeal ensued.
Additional facts are included below as necessary.
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 5 of 20 Discussion and Decision 1. We Decline Ranger’s Invitation to Reconsider Our Motions Panel’s Denial of Ranger’s Motion to Dismiss this Appeal
[7] Before we address Caccavale’s claims, we must address the first part of
Ranger’s cross-appeal, which asks us to dismiss this case with prejudice because
Caccavale has transferred assets in an alleged attempt to make himself
judgment proof. On October 3, 2023, before this case was fully briefed, this
court’s motions panel ordered Caccavale to post an appeal bond or irrevocable
letter of credit within 20 days and file his brief within 30 days. On October 16,
2023, Caccavale filed a motion to set aside the bond requirement. The next
day, our motions panel issued an order, without ruling on the motion to set
aside, stating in relevant part that the appeal bond requirement was still in
effect.
[8] On November 2, 2023, while Caccavale’s motion to set aside was pending and
without filing an appeal bond, Caccavale filed his brief and appendix. Ranger
subsequently filed a motion to dismiss this appeal with prejudice based on
Caccavale’s failure to comply with this court’s October 3 order. On November
20, 2023, our motions panel denied Ranger’s motion to dismiss and vacated its
October 3 order requiring Caccavale to post an appeal bond.
[9] Ranger now asks us to reconsider our motions panel’s denial of Ranger’s
motion to dismiss. A writing panel of this court may reconsider a decision of
our motions panel while the appeal remains pending, but we are reluctant to do
so. Means v. State, 201 N.E.3d 1158, 1164–1165 (Ind. 2023) (citing Bridgestone
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 6 of 20 Americas Holding, Inc. v. Mayberry, 878 N.E.2d 189, 191 n.2 (Ind. 2007)) (quoting
City of Indianapolis v. Tichy, 122 N.E.3d 841, 844 n.3 (Ind. Ct. App. 2019)).
Generally, we overrule a decision of our motions panel only “where a more
complete record reveals clear authority establishing that our motions panel
erred.” Haggerty v. Anonymous Party 1, 998 N.E.2d 286, 293 (Ind. Ct. App.
2013) (citing Simon v. Simon, 957 N.E.2d 980, 987 (Ind. Ct. App 2011)).
[10] Ranger specifically contends that we should dismiss this appeal because
Caccavale has jeopardized the effectiveness of the money judgment Ranger
obtained against him by disposing of assets after the entry of that judgment. In
particular, Ranger points to evidence presented at a December 5, 2023, hearing
before the trial court that showed, among other things, (1) approximately a
month after the April 24 damages hearing, Caccavale sold to his grandson a
parcel of North Carolina real estate that Caccavale owned via Triple Vee, LLC
and then transferred the proceeds of that sale to his grandson’s wife; (2) less
than a month after the trial court ordered Caccavale to pay Ranger more than
$150,000, Caccavale sold another parcel of North Carolina real estate, again
owned via Triple Vee, and used the proceeds of that sale to build a house on
property he owned via Triple Vee; and (3) about one month after this last real
estate sale, Caccavale transferred full ownership of Triple Vee to his grandson
for no consideration. Ranger argues that these facts show that Caccavale was
attempting to prevent Ranger from being able to collect any monetary damages
awarded to it as a result of this lawsuit.
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 7 of 20 [11] It is well-established that “[w]here the subject matter of litigation has been
removed or has removed itself from the jurisdiction of a state court in violation
of that court’s orders,” an appellate court may dismiss the offending litigant’s
appeal. Nat’l Union of Marine Cooks & Stewards v. Arnold, 348 U.S. 37, 43 (1954);
see also Michael v. Michael, 253 N.E.2d 261, 262 (Ind. 1969) (dismissing appeal of
custody order where appellant had taken child outside of trial court’s
jurisdiction and failed to return); Mason v. State, 440 N.E.2d 457 (Ind. 1982)
(dismissing an escaped prisoner’s appeal as moot since he was not in custody).
Notably, the Indiana Supreme Court has previously explained that there is a
difference between an appellant’s mere refusal to comply with a court order and
an appellant leaving the jurisdiction to avoid a court order. In the first scenario,
“the trial court is in a position to invoke its power and protect the integrity of its
order.” Michael, 253 N.E.2d at 262. In the second scenario, the trial court is
not in a position to enforce its order because “the appellant is without its
jurisdiction and the court has done all that it can to protect the integrity of our
court system in view of appellant’s concealment.” Id.
[12] Although the evidence about Caccavale’s transfer and disposition of assets was
not available to our motions panel when it denied Ranger’s motion to dismiss,
the parties have not identified and we cannot find any case law from this state
that addresses if and under what circumstances we may dismiss an appeal due
to the appellant allegedly jeopardizing the effectiveness of the money judgment
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 8 of 20 entered against him.1 However, we need not address this issue because
Caccavale’s allegedly contemptuous acts do not impinge on the substantive
issues in this case. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015)
(explaining that Indiana courts have a well-established preference for deciding
cases on their merits). We thus reject Ranger’s request for us to reconsider our
motions panel’s denial of Ranger’s motion to dismiss and proceed to the merits
of Caccavale’s claims.
2. The Trial Court Erred in Granting Summary Judgment in Favor of Ranger
[13] Caccavale contends the trial court erred by granting summary judgment in
favor of Ranger.2 Ranger argued in relevant part that Caccavale breached the
Purchase Agreement and that Caccavale cannot hold Ranger liable pursuant to
1 Several other jurisdictions have addressed this issue or similar issues. See generally Nat’l Union of Marine Cooks & Stewards v. Arnold, 348 U.S. 37 (1954) (holding Washington Supreme Court’s dismissal of appeal did not violate the Due Process or Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and was a reasonable means of safeguarding the collectability of the money judgment where appealing party repeatedly failed to comply with trial court order requiring delivery of out-of-state bonds to secure money judgment); Hentsch Henchoz & Cie v. Gubbay, 97 P.3d 1283 (Utah 2004) (requiring appellant to comply with trial court’s orders within 30 days and to post bond in order to avoid dismissal of appeal where appellant repeatedly defied discovery orders and stopped participating in the case after a number of adverse rulings); Keidash v. Smith, 400 So.2d 90 (Fla. Dist. Ct. App. 1981) (dismissing appeal where appellant fled the jurisdiction and defied a trial court order restraining him from transferring or disposing of assets outside the ordinary course of legitimate business and day-to-day living); Stewart v. Stewart, 372 P.2d 697 (Ariz. 1962) (en banc) (ordering appellant to comply with trial court’s orders within 30 days or have appeal dismissed where appellant was in contempt for failing to pay support, maintenance, and attorneys’ fees and failed to appear at related show cause hearings); In re Marriage of Hofer, 208 Cal.App.4th 454 (2012) (dismissing appeal where appellant challenged award of attorneys’ fees based on lack of evidence of appellant’s ability to pay despite appellant unlawfully withholding evidence of his income and assets). 2 We observe that the parties filed cross motions for summary judgment. However, Caccavale appeals only the trial court’s decision to grant Ranger’s motion for summary judgment; he does not appeal the trial court’s denial of his own motion. We thus address only Ranger’s motion for summary judgment.
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 9 of 20 Section K. Caccavale argued in relevant part that Section J of the Purchase
Agreement permitted him to terminate that agreement once he discovered that
he likely would not be able to install a septic system on the property, thus
preventing him from building a residence thereon.
[14] We review summary judgment decisions de novo, which means we apply the
same standard as the trial court. Miller v. Patel, 212 N.E.3d 639, 644 (Ind. 2023)
(quoting 624 Broadway, LLC v. Gary Hous. Auth., 193 N.E.3d 381, 384 (Ind.
2022)). Summary judgment is proper only “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.” Ind. Trial Rule 56(C). “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.” City of Marion v. London Witte Grp., LLC, 169 N.E.3d
382, 390 (Ind. 2021) (quoting Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.
2009)).
[15] 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. Wireman v. LaPorte Hosp. Co., 205
N.E.3d 1041, 1045 (Ind. Ct. App. 2023) (citing Serbon v. City of E. Chicago, 194
N.E.3d 84, 91 (Ind. Ct. App. 2022)), reh’g denied (Apr. 5, 2023), trans. denied,
211 N.E.3d 1007 (Ind. 2023). Only if the moving party meets this prima facie
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 10 of 20 burden does the burden then shift to the nonmoving party to show the existence
of a genuine issue of material fact. Id. (citing Serbon, 194 N.E.3d at 91).
[16] 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 non-movant’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)).
[17] We first address the question of law raised by Ranger: whether Caccavale had
the right to terminate the Purchase Agreement under Sections J and K.
Contract interpretation is a question of law that we review de novo. Illinois Cas.
Co. v. B&S of Fort Wayne Inc., 235 N.E.3d 827, 832 (Ind. 2024) (citing Lake
Imaging, LLC v. Franciscan All., Inc., 182 N.E.3d 203, 206 (Ind. 2022)). “As
such, cases involving contract interpretation are particularly appropriate for
summary judgment.” Tricor Auto. Grp. v. Dealer VSC Ltd., 219 N.E.3d 206 (Ind.
Ct. App. 2023) (quoting B & R Oil Co. v. Stoler, 77 N.E.3d 823, 827 (Ind. Ct.
App. 2017)), trans. denied sub nom. TriCor Auto. Grp. v. Elzayn, 228 N.E.3d 1024
(Ind. 2024). When this court interprets a contract,
we ascertain the intent of the parties at the time the contract was made, as disclosed by the language used to express the parties’ rights and duties. We look at the contract as a whole ... and we accept an interpretation of the contract that harmonizes all its provisions. A contract’s clear and unambiguous language is Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 11 of 20 given its ordinary meaning. A contract should be construed so as to not render any words, phrases, or terms ineffective or meaningless.
Ryan v. TCI Architects/Eng’rs/Cont’rs, Inc., 72 N.E.3d 908, 914 (Ind. 2017)
(internal citations omitted).
[18] Caccavale contends that Section J allowed him to terminate the Purchase
Agreement once he discovered that he could not install a septic system on the
Starke County property. Section J provides two circumstances under which
Caccavale could have terminated the contract:
(1) if the property required flood insurance, or
(2) if
(a) the property was subject to building or use limitations by reason of the location, and
(b) those limitations materially interfered with Caccavale’s intended use of the property.
See Appellant’s App. Vol. II at 69. Caccavale claims the second contingency
applies here. In her dissent in the first appeal in this case, Judge May agreed
with Caccavale, opining that the inclusion of “OTHER” in the header for
Section J makes the second contingency “separate from concerns about
flooding, such that a buyer would have the option to terminate the Agreement
for location-based building or use limitations that materially interfere with a
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 12 of 20 buyer’s intended use of the property.” Ranger Team Bldg., 163 N.E.3d 323, No.
20A-PL-547, slip op. at ¶ 29.
[19] By contrast, Ranger asks us to read the second contingency as follows: the
buyer may terminate the Purchase Agreement if (a) the property is subject to
building or use limitations by reason of the location within a flood plain and (b)
those limitations materially interfere with the buyer’s intended use of the
property. In support, Ranger points to our case law that states although
headings may be helpful in determining the purpose of a particular contract
provision, see Ryan, 72 N.E.3d at 915, “headings are not conclusive as to
substantive provisions,” Kiltz v. Kiltz, 708 N.E.2d 600, 603 (Ind. Ct. App. 1999)
(citing In re Marriage of Buntin, 496 N.E.2d 1351, 1354 (Ind. Ct. App. 1986)).
[20] Ranger argues that “it is not the location of the real estate which materially
interfered with the Buyer’s intended use of the property, rather it was the
condition of the property,” such that Section K, not Section J, is the applicable
provision here. Appellant’s App. Vol. II at 153. In Section K, Caccavale
waived his right to inspect the condition of the property and released Ranger
“from any and all liability relating to any defect or deficiency affecting the
Property.” Id. at 69. In her dissent in the first appeal in this case, Judge May
stated that “the inability to obtain a permit to install a septic system is a
location-based building or use limitation, rather than a ‘condition of the
Property’ for which Caccavale waived the right to hire an inspector under
Section K.” Ranger Team Bldg., 163 N.E.3d 323, No. 20A-PL-547, slip op. at ¶
30. We agree.
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 13 of 20 [21] The second contingency’s plain language does not limit it to building or use
limitations arising out of the property’s location within a flood plain.
Furthermore, and importantly, Caccavale’s waiver of inspections and release of
Ranger from liability for the condition of the property does not nullify
Caccavale’s right to terminate the Purchase Agreement pursuant to Section J.
We thus conclude that if Caccavale intended to build a house on the property
and his intention was materially interfered with due to the location of the
property, then Caccavale had the right to terminate the Agreement pursuant to
Section J’s second contingency. This conclusion presents three issues of
material fact that must be resolved: (1) Caccavale’s intended use of the
property when he signed the Purchase Agreement, (2) whether Caccavale’s
alleged inability to obtain a septic permit materially interfered with his intended
use of the property, and (3) whether, in fact, a septic permit cannot be obtained.
[22] Considering Ranger’s designated evidence in the light most favorable to
Caccavale reveals that (1) Caccavale’s real estate agent was helping him look
for “property . . . to be used for hunting and other outdoor recreational
activities,” Appellant’s App. Vol. II at 113; (2) the property had not been
officially designated as a wetland; and (3) there was a possibility that a “mound
septic system” could be installed on the property, Appellant’s App. Vol. IV at 4.
Because there are no genuine disputes of material facts within Ranger’s own
designated evidence, Ranger satisfied its prima facie burden and Caccavale had
to designate evidence in response that creates a genuine issue of material fact.
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 14 of 20 [23] In response, Caccavale designated evidence that shows (1) Caccavale purchased
the property to build a retirement home, and the property’s listing indicated it
was “[p]rime hunting ground or a great space to build your dream home,”
Appellant’s App. Vol. II at 104; (2) the property is a wetland, Starke County
does not issue septic permits for wetlands, and state and county regulations
prohibit the issuance of a building permit for real estate where a septic system
cannot be installed; and (3) Starke County’s building inspector confirmed with
Caccavale’s real estate agent that a septic system would not be approved for the
property. This evidence is sufficient to create genuine issues of material fact
regarding all three issues delineated above. Because Caccavale met his burden
of demonstrating the existence of genuine issues of material fact, the trial court
erred by granting summary judgment in favor of Ranger.3
3. The Trial Court Did Not Abuse Its Discretion by Denying Ranger’s Motion for Mediation-Related Sanctions
[24] Finally, we address the second part of Ranger’s cross appeal: the trial court’s
denial of Ranger’s motion for mediation-related sanctions. Indiana Alternative
Dispute Resolution Rule (“ADR Rule”) 2.10 gives courts the discretion to
“impose sanctions against any attorney, or party representative who fails to
comply with these mediation rules, limited to assessment of mediation costs
and/or attorney fees relevant to the process.” Ranger contends that Caccavale
3 Based on this conclusion, we need not address Caccavale’s argument regarding the trial court’s decision to award Ranger attorneys’ fees.
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 15 of 20 violated ADR Rule 2.1, which states, “[p]arties and their representatives are
required to mediate in good faith.” We review a trial court’s decision on
whether to award mediation-related sanctions for an abuse of discretion. Stoehr
v. Yost, 765 N.E.2d 684, 686 (Ind. Ct. App. 2002) (citing State v. Carter, 658
N.E.2d 618, 621 (Ind. Ct. App. 1995), disapproved of on other grounds by Lake
Cnty. Tr. Co. v. Advisory Plan Comm’n of Lake Cnty., 904 N.E.2d 1274 (Ind.
[25] Here, the parties engaged in mediation twice in this case: May 2019 and
December 2021. On March 10, 2022, Ranger filed a motion for sanctions
related to Caccavale’s alleged bad faith during those mediation sessions. After
a hearing, the trial court denied Ranger’s motion, concluding that Ranger failed
to demonstrate Caccavale mediated in bad faith. In reaching this conclusion,
the trial court determined that much of the evidence Ranger presented—
including testimony about what occurred at those sessions and the balance
sheets Caccavale prepared therefor—was inadmissible because it was
confidential under the ADR Rules or because it was evidence of settlement
negotiations.
[26] Ranger now contends that the trial court abused its discretion by not
considering the evidence it presented and consequently denying its sanctions
motion. Even if we assume arguendo that Ranger’s mediation-related evidence
was admissible, this error was harmless because it still cannot show that
Caccavale mediated in bad faith. See Ind. Appellate Rule 66(A).
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 16 of 20 [27] In the mediation context, we have previously defined “bad faith” as follows:
“Bad faith amounts to more than bad judgment or negligence; ‘rather it implies
the conscious doing of wrong because of dishonest purpose or moral obliquity.
It contemplates a state of mind affirmatively operating with furtive design or ill
will.’” Stoehr, 765 N.E.2d at 687 (alterations omitted) (quoting Carter, 658
N.E.2d at 621). Notably, the fact or amount of settlement offers and the
parties’ success in mediating their dispute is not necessarily indicative of the
parties’ good or bad faith at mediation because “mediation is not all ‘about
money.’” Id. (quoting Gray v. Eggert, 635 N.W.2d 667, 671 (Wis. Ct. App.
2001)). Other goals of mediation include stipulating to facts, identifying issues,
reducing misunderstandings, clarifying priorities, and locating points of
agreement. Id. at 689.
[28] Here, the May 2019 mediation occurred after Judge Pera entered summary
judgment in favor of Ranger but before the hearing on damages. The purpose
of this mediation session was seemingly for the parties to settle the issue of
damages. At this time, Ranger was still seeking specific performance of the
Purchase Agreement. The December 2021 mediation occurred after this court
remanded the case and before the trial court reinstated Judge Pera’s entry of
summary judgment in favor of Ranger.4
4 At this time, the parties were arguing the effect of this court’s decision in the first appeal. Caccavale was arguing that the decision resulted in effectively reversing Judge Pera’s entry of summary judgment, while Ranger argued that the appeal reinstated Judge Pera’s summary judgment decision.
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 17 of 20 [29] According to Ranger, Caccavale’s position at both mediation sessions was
primarily that he did not have enough cash to settle the case. In support,
Ranger points to two balance sheets prepared by Caccavale—one for the May
2019 session and another one after the December 2021 session to help the
parties determine if a third session would be productive; those balance sheets
reflected Caccavale’s cash flow.
[30] Ranger believed that Caccavale was lying about his assets and told the mediator
and Caccavale as much at the second mediation session in December 2021.
Although Caccavale’s balance sheets did not include his real property interests,
he had previously disclosed to Ranger at least some of those interests in
responses to interrogatories. Additionally, Ranger had previously requested
Caccavale produce the closing documents from his real estate transactions
identified in his responses to interrogatories, but Ranger never pursued those
documents after Caccavale objected to producing them. Ultimately, Ranger
chose to disengage from the mediation sessions and all other settlement
discussions based on its belief that Caccavale was lying about his assets and
would not or could not satisfy any monetary judgment entered against him.
[31] After consideration of this evidence, we cannot say that it demonstrates
Caccavale mediated in bad faith. Determining the amount of damages the
liable party owes to the injured party is separate and distinct from determining
whether the liable party has the present or future ability to pay those damages.
Nevertheless, Ranger chose to elevate its concerns about Caccavale’s ability to
pay over determining the amount of damages Caccavale owed and over
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 18 of 20 working through any relevant nonmonetary goals of mediation. Accordingly,
any error stemming from the trial court’s refusal to consider mediation-related
evidence in ruling on Ranger’s mediation-related sanctions motion was
harmless because, even assuming the evidence was admissible, Ranger did not
prove that Caccavale mediated in bad faith. See App. R. 66(A). We therefore
cannot say the trial court abused its discretion by denying Ranger’s motion for
mediation-related sanctions.
Conclusion [32] In sum, we decline to reconsider our motions panel’s denial of Ranger’s motion
to dismiss this appeal, the trial court erred by granting summary judgment in
favor of Ranger, and the trial court did not abuse its discretion in denying
Ranger’s motion for sanctions. We therefore reverse the grant of summary
judgment in favor of Ranger and remand for trial, and we affirm the trial court’s
denial of Ranger’s sanctions motion.
[33] Affirmed in part, reversed in part, and remanded with instructions.
Foley, J., and Kenworthy, J., concur.
ATTORNEY FOR APPELLANT Benjamen W. Murphy Law Office Of Ben Murphy Griffith, Indiana
ATTORNEYS FOR APPELLEE Bryan H. Babb
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 19 of 20 Bradley M. Dick Bose McKinney & Evans LLP Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 23A-PL-1556| October 11, 2024 Page 20 of 20