Opinion
23A-PL-1859
08-22-2024
Danny M. Newman, Jr., Appellant-Defendant, v. Kelly Beckner, Appellee-Plaintiff.
ATTORNEY PRO SE Danny M. Newman Jr. Columbus, Ohio ATTORNEY FOR APPELLEE Michael A. Langer Langer &Langer Valparaiso, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Porter Superior Court The Honorable Jeffrey W. Clymer, Judge Trial Court Cause No. 64D02-2209-PL-7536
ATTORNEY PRO SE Danny M. Newman Jr. Columbus, Ohio
ATTORNEY FOR APPELLEE Michael A. Langer Langer &Langer Valparaiso, Indiana
MEMORANDUM DECISION
NAJAM, SENIOR JUDGE.
Statement of the Case
[¶ 1] Kelly Beckner (Beckner), as Buyer, and Danny M. Newman Jr. (Newman), as Seller, executed a purchase agreement (Purchase Agreement) for residential property owned by Newman using Indiana Association of Realtors forms. The deal fell through. Beckner filed a complaint for breach of contract against Newman after he failed or declined to authorize the escrow agent to return Beckner's earnest money deposit. Newman countered that Beckner had failed to state a claim and asserted counterclaims and affirmative defenses. The trial court entered summary judgment for Beckner holding that she is entitled to return of her earnest money. The following issues are presented for our review:
I. Did the court err by denying Newman's Motion for Partial Judgment on the Pleadings?
II. Did the trial court err by granting summary judgment to Beckner?
III. Is Beckner entitled to attorney's fees under Appellate Rule 66(E)?
We conclude that the trial court did not err when it denied Newman's motion for partial judgment on the pleadings and granted summary judgment to Beckner, and that Beckner is entitled to recover attorney's fees under Appellate Rule 66(E). We affirm and remand.
Facts and Procedural History
[¶ 2] On June 27, 2022, Beckner and Newman entered into a Purchase Agreement for improved residential property in Valparaiso. Under the Purchase Agreement, the purchase price was $610,000, and Beckner delivered $7,000 in earnest money to the listing broker who served as the escrow agent. Beckner also exercised her right under the Purchase Agreement to have independent inspections conducted on the property.
Various documents referenced and cross-referenced by the parties have not been included in an Appendix. For example, the inspection report summary is not part of the materials. And we do not have the repair estimates before us. The absence of these documents, which are important to a more thorough review of the record, have hindered but not prevented our decision.
[¶ 3] After receiving the inspection report summary, Beckner submitted her Buyer's Inspection Response #1, dated July 7, 2022. In her conditional acceptance, Beckner stated that she:
accepts Property provided [Newman] corrects the following conditions:
1. HVAC company to Inspect furnace/duct work to provide assurances that excess dead flies aren't getting in through furnace/ductwork; level AC unit; change TPR valve, (Items 23, 26, and 22 of report summary)[.]
2. Qualified contractor/handyman to fix loose pavers around the pool; replace rotting joist and boards with untreated lumber, (Items 19 and 20 of report summary)[.]
3. Pool company to fix liner, (Item 30 of report summary)[.]
4. Seller to remove lock or provide key for exterior shut off of electrical panel for AC unit, (Item 25 of report summary).
[Beckner] shall have the right to inspect and accept [Newman's] repairs prior to closing. Appellant's App. Vol. II, p. 20 (emphasis added).
[¶ 4] On July 12, 2022, Newman replied with Seller's Inspection Response #1. In his counteroffer, Newman stated that he:
agrees to correct the following condition(s) prior to closing. 1 &2) [Newman] will credit buyer $2500 to cover the costs of Items #1 and #2 on Buyers Inspection Response #1. Quote for the deck provided.
3) Pool liner functions properly and is only an aesthetic issue-no repairs to be made.
4) Lock on AC unit will be removed
5) Answers to all questions have been provided via email.Id. at 21 (emphasis added). Newman's Seller's Inspection Response #1 further provided that Beckner "shall reply on or before July 13, 2022. If [Beckner] fails to reply or fails to request in writing an extension of time to reply, [Beckner] accepts [Newman's] inspection response above." Id. On July 12, 2022, Beckner executed her Buyer's Inspection Reply #1 in which she expressly rejected Newman's counteroffer. Id.
Beckner's rejection says, "[Beckner] rejects [Newman's] Response above. See attached Mutual Release from Purchase Agreement." Id. The attachment is one of the documents omitted from the Appellant's Appendix.
[¶ 5] According to the Purchase Agreement, and because there was no mutually agreed upon written extension of the August 25, 2022 closing date, the Purchase Agreement expired. Id. at 13. In a letter to the parties dated July 14, 2022, the escrow agent acknowledged that the parties had reached a stalemate regarding the rightful ownership of the earnest money. She stated her position, indicating that she would retain the earnest money for sixty days before releasing it to Newman, unless the parties entered into a mutual release or obtained a court order for payment.
The escrow agent's letter complied with 876 IAC 8-2-2 , an administrative regulation adopted by the Indiana Real Estate Commission concerning the disposition of money received in connection with an offer to purchase. The regulation, cited in the Purchase Agreement, states, in pertinent part, that "All money [received in connection with a transaction] shall be retained in the escrow/trust account so designated until disbursement of the money is properly authorized. 876 IAC 8-2-2 (emphasis added).
[¶ 6] On September 7, 2022, Beckner filed a complaint against Newman alleging breach of contract based upon his failure to authorize the escrow agent to release the earnest money to her upon termination of the Purchase Agreement according to its terms. Beckner also sought an award of reasonable attorney's fees as provided for in "line 332" of the Purchase Agreement. Id. at 11.
[¶ 7] Newman filed his answer, affirmative defenses, counterclaims, and jury demand on December 7, 2022. Newman also filed a Motion for Partial Judgment on the Pleadings, which sought dismissal of Beckner's complaint for failure to state a claim for breach of contract.
Newman pleaded the following affirmative defenses: (1) "the doctrines of estoppel, fraud, and/or waiver"; (2) the failure "to name an indispensable party"; (3) his breach "would be excused by [Beckner's] independent breach"; and (4) "additional affirmative defenses that may come to light during the pendency of this action." Appellant's App. Vol. II, p. 25.
Newman pleaded the following counterclaims: (1) breach of contract; (2) fraud/misrepresentation; and (3) abuse of process. Id. at 29-31.
[¶ 8] Beckner answered Newman's counterclaims. Generally, Beckner responded that she had received a copy of a Service Invoice dated April 26, 2022 from Newman's contractor, Caribbean Pools, Inc., an invoice that predates the Purchase Agreement, which says, "patched hole in liner by handrail. Vinyl liner was not pliable enough to get liner back in coping even with heat applied. Homeowner may be interested in a new liner quote. Current liner is 9-10 years old." Appellee's App. Vol. II, p. 10. Beckner asserted that Newman had "actual knowledge that the pool liner could not be repaired," Appellant's App. Vol. II, p. 55, and that he had fraudulently concealed the defective condition of the liner in his Sales Disclosure. Beckner also denied "telling anyone, including her agent, that Seller's Inspection Response #1 would be acceptable to her." Id. at 47.
This document is also missing from the Appellant's Appendix.
[¶ 9] On February 6, 2023, Beckner filed her Motion in Opposition to Newman's Motion for Partial Judgment on the Pleadings with a supporting brief. In her Motion, Beckner asked the court to deny Newman's motion and to dismiss Newman's counterclaims "because [they fail] to allege operative facts sufficient to state a claim against" her. Id. at 50. Beckner also argued that the Purchase Agreement "was only conditionally accepted because acceptance was subject to various conditions, including inspections," that she had identified several conditions with the property that required repair, but that Newman had responded with a counteroffer to fix only some of the conditions identified in the inspection report. Id. at 54-55. Beckner concluded that in her Buyer's Inspection Reply #1, which was attached to her complaint, she had rejected Newman's counteroffer and that with her rejection, "the Purchase Agreement was terminated." Id. at 55.
[¶ 10] Newman then submitted a Combined Reply Brief in Support of Defendant's Motion for Partial Judgment on the Pleadings and Response in Opposition to Plaintiff's Motion in Opposition. In it, Newman claimed that Beckner "cannot salvage her breach-of-contract claim . . . by cherry-picking a single sentence" from the Purchase Agreement ["Earnest money shall be returned promptly to Buyer in the event this offer is not accepted."]. Id. at 60. He argued that Beckner's "beef is with the escrow agent, who . . . agreed with [] Newman that he was entitled to the escrow money because of [Beckner's] refusal to perform." Id. And Newman asserted that the Purchase Agreement was a completed contract which Beckner breached when she failed to specifically perform it by closing on the transaction or before the designated closing date.
[¶ 11] Beckner filed her Motion for Summary Judgment and supporting brief in which she reasserted that: (1) she had rejected Newman's counteroffer; (2) the closing date had passed without an agreed-upon extension; and (3) Newman had failed to authorize the escrow agent (his listing broker) to return the earnest money to her.
[¶ 12] The trial court held a hearing on Newman's Motion for Partial Judgment on the Pleadings during which Newman argued, in part, that, "the problem is that when they filed suit they did it the wrong way . . . they screwed up when they framed this as a breach of contract issue . . . the claim that they have pled is a nonstarter." Tr. Vol. II, pp. 4-5, 7, 9. Newman stated that he was "calling the plaintiff out for mispackaging her claim as a breach of contract claim" and that "the whole point of this motion [for partial judgment on the pleadings]" is that Beckner should, instead, have brought a declaratory judgment action. Id. at 4.
[¶ 13] Beckner's counsel replied that Beckner was not required to file a declaratory judgment action, that there was a Purchase Agreement which included an inspection provision, that Beckner had requested that certain repairs be made, that Newman had counteroffered in which he declined to make some repairs, and that Beckner had rejected his counteroffer with her Buyer's Inspection Response #1, which had terminated the Purchase Agreement. Id. at 10-11.
[¶ 14] Without abandoning his claim that a declaratory judgment action was required, Newman's counsel summarized his position, stating that if Beckner "had legal cause to terminate the contract," the earnest money "goes back to her," but that, "she did not validly terminate the agreement" and thus, that, "She breached it when she did not close." Id. at 21.
[¶ 15] Following an extended colloquy among the trial court and counsel, the court concluded that, "This is a contract case. This is like a first-year law school contract." Id. at 20. The trial court also addressed Newman's claim that Beckner had failed to name the escrow agent as an indispensable party and concluded that while the escrow agent might be a witness, the escrow agent was not a necessary party, that the escrow agent was merely holding the earnest money until its ownership had been resolved either by agreement or court order. Id. at 13-14.
[¶ 16] The trial court denied Newman's Motion for Partial Judgment on the Pleadings, holding, in effect, that Beckner had stated a claim for breach of contract.
[¶ 17] In a subsequent hearing the court heard oral argument on Beckner's Motion for Summary Judgment. Beckner's motion stated that there was no genuine issue of material fact and that her motion was supported by her brief "and the other pleadings and papers on file." Appellant's App. Vol. II, p. 67. Beckner attached contract documents, including the Purchase Agreement, Buyer's Inspection Response #1, Seller's Inspection Response #1, and Buyer's Inspection Reply #1 to her complaint. Id. at 9-21.
[¶ 18] Newman filed his Brief in Opposition to Beckner's Motion for Summary Judgment and TR 56 Evidence Designation. Before the trial court and on appeal Newman asserts that, "it is unclear that Beckner properly designated any evidence in a form contemplated by Rule 56(C)." Appellant's Br. p. 26.
[¶ 19] Newman's designated evidence consisted of: (1) Exhibit 1: an Affidavit of Jodi Gheaja; 2) Exhibit 2: an Affidavit of Danny M. Newman Jr.; and (3) Exhibit 3: the Purchase Agreement. Gheaja was Newman's broker and listing agent. Her affidavit referred to oral communications between her and Beckner's broker, Jason Utesch, and alleged she had informed Newman that, Utesch had "specifically communicated" to her that Beckner would accept a proposed lump-sum amount of two thousand five hundred dollars ($2,500.00) at closing, provided that sum would be sufficient to ameliorate the pool deck repairs and HVAC issues identified in the inspection report and, further, provided that Caribbean Pools, Inc. assured Beckner "that the pool liner issue was cosmetic and did not interfere with the pool's functionality." Id. Gheaja's affidavit included as exhibits an email from Utesch, stamped Tuesday, July 12, 2022 at 2:59 p.m., which stated that, "Unfortunately, the buyer is going to move on[]" id. at 96, and a reply email from Gheaja to Utesch on the same day at 6:39 p.m., in which she purported to "follow up" on their earlier discussion and stated that "the pool liner cannot [be] FIXED (as requested by the inspection response)" but that Newman "is willing to either give the buyer a credit for a new liner OR pay Caribbean [Pools] in full for a new liner ...." Id.
[¶ 20] In his affidavit, Newman first asserted that "all of the conditions" listed in Beckner's Inspection Response #1 "were merely cosmetic and that none of them were conditions that would have a significant adverse effect on the value of the Property that would significantly impair the health or safety of future occupants of the property ...." Id. at 98. In other words, Newman contended that the conditions identified by Beckner were not defects as defined in the Purchase Agreement that would require remediation or provide legal cause to prevent a closing. Newman's affidavit further alleged that he had only submitted his Seller's Inspection Response #1 after his broker, Gheaja, informed him that Beckner's broker, Utesch, had "specifically communicated" to her that Beckner would accept the terms set out in what subsequently became his Seller's Inspection Response #1, namely, the $2,500 credit at closing and the assurance of Caribbean Pools that the pool liner issue was cosmetic and did not interfere with the pool's functionality. Id. at 99.
[¶ 21] At the summary judgment hearing, Beckner's counsel addressed Newman's challenge to the sufficiency of the Rule 56(C) designations in support of her motion, stating that the brief in support of the motion "specifically identifies documents, parts of documents, replies, and other allegations that support Ms. Beckner's claim for breach of contract." Tr. Vol. II, p. 34. Counsel further stated, "It doesn't generally state [what] the contract said-it doesn't generally say that there was a reply that said this. It actually designates the specific document or the specific portion of a document that the petitioner/plaintiff relies on in support of her motion." Id.
[¶ 22] Addressing the Gheaja and Newman designated affidavits, Beckner's counsel argued that: (1) "the contract on line 366 states that the contract can only be modified by the parties. It does not give the parties['] representatives any authority to negotiate and agree upon the terms of a contract[]"; and (2) "the rejection was on July 12th, and these two e-mails were of the same date. It starts out at the bottom with an email from Mr. Utesch who was [] the buyer's representative stating-simply stated, "Hi, Jodi. Unfortunately, the buyer is going to move on." Id. at 35-36. Beckner's counsel argued that the Gheaja email attempted "to revive a dead contract that evening, 6:39 p.m., which is July 12, where the seller's representative began-stated that the pool liner cannot be fixed. This is the first admission following [Seller's Inspection Response #1] the same day [in which] the seller [had] stat[ed] that the problem with the pool liner was cosmetic." Id. at 36.
[¶ 23] Beckner's counsel concluded by reasoning that, "Well, these documents do not create any issues of fact, Your Honor, because the contract had already [been] terminated when [Newman's counteroffer] was rejected." Id. at 37. And, as noted above, he also asserted that, "the representatives of the parties cannot bind the parties." Id. On appeal Beckner concludes that, "[t]he Agreement was terminated because of Newman's refusal to repair the condition of the pool liner" and that, "[t]he Affidavits of both Affiants individually and collectively created no material issue of fact." Appellant's Br. p. 26.
[¶ 24] Counsel for Newman countered that, (1) "none of the termination procedures are even available under this contract unless you're talking about a defect as defined in [line] 223 through [line] 226;" and (2) "with regard to the fraud or estoppel defense . . . [Gheaja's] recitation of the prior conversation that she had with Mr. Utesch . . . is a representational statement .... We detrimentally [relied] upon it, and it creates a genuine issue of material fact as to whether there was fraud in the inducement which is an exception to the statute of frauds." Tr. Vol. II, pp. 39-40 (emphasis added).
[¶ 25] The trial court ruled for Beckner from the bench. The court stated that "there are no legitimate genuine issues of material fact . . . It's a contract. It's in writing." Id. at 51. The court explained its reasoning, that applying the statute of frauds and without considering any oral statements, the "only question at that point is then, legal[]" and "is a party entitled to judgment based upon that which is in writing?" Id. The court held, "as a matter of law" "that the plaintiff is entitled to summary judgment based upon the undisputed facts" and found "as a matter of law that the plaintiff, based upon the designated evidence . . . before the Court, that the contract terminated when Mr. Newman did not unconditionally accept the buyer's report." Id. at 52. And the court then concluded with a question, namely, "does it [the summary judgment for Beckner] deal with Newman's counterclaim[s]? I'm not sure. Anyway, I'm granting summary judgment to the plaintiff." Id. at 54.
While the trial judge stated from the bench that he was "not sure" whether the entry of summary judgment for Beckner dealt with Newman's counterclaims, we conclude that in its operation and effect, as a matter of law, the entry of summary judgment based entirely on the contract documents also disposed of Newman's counterclaims. In her Complaint, Beckner also asked for an award of attorney's fees as provided under the Purchase Agreement, which the trial court did not award.
[¶ 26] The court subsequently entered its written Order Granting Summary Judgment, as follows:
Plaintiff appears in person and by Att. Michael Langer. Defendant is represented by Att. Trevor Wells. Hearing is held on Plaintiff's Motion for Summary Judgment.
The Court now finds that there is no genuine issue of the following facts:
1. The Parties entered into a Purchase Agreement for the sale/purchase of property commonly known as 179 Palamino Lane, Valparaiso, Indiana.
2. The Plaintiff tendered her Earnest Money Deposit to the listing broker in the amount of Seven Thousand Dollars ($7,000.00).
3. The Plaintiff provided an inspection report to the Defendant.
4. Defendant did not unconditionally accept the inspection report.
5. The Defendant made a proposal to the Plaintiff which the Plaintiff rejected.
6. Defendant was unwilling to return Plaintiff's Earnest Money Deposit.
7. Defendant breached the contract by refusing to return Plaintiff's Earnest Money Deposit.
8. The sale did not close.
9. The contract terminated at 2:59 p.m. on July 12, 2022.
Based on these undisputed facts, the Court finds, as a matter of law, that there was no meeting of the minds regarding the Defendant's counteroffer regarding pool repairs. Therefore, Plaintiff is entitled to return of her security deposit.
Court now PARTIALLY GRANTS Plaintiff's Motion for Summary Judgment with regards to Earnest Money.
This is a final appealable Order with respect to Earnest Money.
Court now VACATES the July 27, 2023 Final Pre-Trial and the August 28, 2023 Jury Trial.
ALL OF WHICH IS ORDERED THIS 11TH day of July, 2023.Appellant's App. Vol. II, pp. 109-10 (emphasis added).
[¶ 27] Newman now appeals from the trial court's judgment.
Discussion and Decision
[¶ 28] Newman raises two principal issues for our review: (1) whether the trial court erred when it denied his Motion for Partial Judgment on the Pleadings, and (2) whether the trial court erred when it granted Beckner's Motion for Summary Judgment. In addition, Beckner requests an award of appellate attorney's fees.
I. Partial Judgment on the Pleadings
[¶ 29] Newman filed a motion under Trial Rule 12(C), arguing that Beckner's complaint "fails to allege operative facts sufficient to state a breach-of-contract claim (or any other claim) against Defendant Newman." Id. at 35. At the hearing on his motion, he expanded upon his argument, contending that not only had Beckner failed to state a claim for breach of contract but that even if she had stated such a claim, she had failed to name the escrow agent as an indispensable party, and that she "did it the wrong way" when she "mispackage[ed] her claim as a breach of contract claim," which should have been filed instead as a declaratory judgment action. Tr. Vol. II, pp. 4-7. Newman makes the same arguments on appeal.
[¶ 30] Newman contends that Beckner failed to allege facts sufficient to support a breach of contract claim and, thus, that she failed to state a claim upon which relief can be granted. "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Ind. Trial Rule 12(C). Our review when a Rule 12(C) motion alleges a Rule 12(B)(6) claim, calls upon us to look only to the complaint, viewing it in the light most favorable to Beckner, drawing every reasonable inference in her favor. See Mourning v. Allison Transmission, Inc., 72 N.E.3d 482, 486 (Ind.Ct.App. 2017). At the hearing on his motion, Newman's counsel conceded that "our position is not that [Beckner] has no legal recourse. It's she definitely does have a way to litigate her entitlement to the $7,000 in escrow, good faith money.....I mean that's a classic declaratory judgment." Tr. Vol. II, p. 4. He continued, "I'm going to make sure we're doing it right and that means calling the plaintiff out for mispackaging her claim as a breach of contract claim." Id.
[¶ 31] The Purchase Agreement provides that the escrow agent shall not release the earnest money "unless the parties enter into a Mutual Release or a Court issues an Order for payment." Appellant's App. Vol. II, p. 12. The agreement further provides that, "If this offer is accepted and [Beckner] fails or refuses to close the transaction, without legal cause, the earnest money shall be retained by [Newman] for damages [Newman] has or will incur." Id. at 19. Beckner's claim for legal cause may be summarized as follows: (1) in her Buyer's Inspection Response #1, she agreed to accept the property, provided that Newman repaired the pool liner and made or paid for other repairs not here at issue; (2) in his Seller's Response to Inspection Report #1, Newman did not accept the terms set forth in Beckner's Buyer's Inspection Response #1, describing the condition of the pool liner as "an aesthetic issue-no repairs to be made," see id. at 21; (3) in her Buyer's Inspection Reply #1, Beckner rejected Newman's Response to Inspection Report #1; (4) Newman was unwilling to remedy the defects identified in Beckner's Inspection Response #1; (5) neither party requested an extension of time; (6) the Purchase Agreement terminated according to its terms; (7) Beckner was notified that Newman was unwilling to authorize return of her earnest money deposit; and (8) Beckner filed a breach of contract action seeking a court order to recover the earnest money, as contemplated by the Purchase Agreement since the parties had not entered into a mutual release.
[¶ 32] "Indiana is a notice-pleading state and only requires that pleadings contain 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" ResCare Health Servs., Inc. v. Ind. Family &Soc. Servs. Admin., 184 N.E.3d 1147, 1153 (quoting T.R. 8(A)(1)). "Plaintiffs do not have to 'set out in precise detail the facts upon which the claim is based, [but they] must still plead the operative facts necessary to set forth an actionable claim.'" Id. (quoting Trail v. Boys and Girls Clubs of Nw. Ind., 845 N.E.2d 130, 135 (Ind. 2006)). Thus, looking to the complaint, Beckner has alleged that Newman was in breach of the Purchase Agreement because his right to the earnest money was contingent upon her failure or refusal to close the transaction without legal cause. Taking the allegations of her complaint as true, as we must, Beckner clearly alleged a legal cause for her refusal to close, which is all that is required to state a claim on these facts.
[¶ 33] Newman has not cleared the high bar for a judgment on the pleadings, which here is equivalent to a failure to state a claim. See McQueen v. Fayette Co. Sch. Corp., 711 N.E.2d 62, 65 (Ind.Ct.App. 1999) ("We will not affirm a dismissal under Trial Rule 12(B)(6) unless it is apparent that the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances."). We reject Newman's contention that Beckner's complaint "simply misses the boat and fails to plead anything that even resembles the operative facts of a cognizable cause of action ...." Appellant's App. Vol. II, p. 44. Newman confuses and conflates Beckner's right to maintain her breach of contract claim with his right to contest it.
[¶34] Newman also alleged that Beckner's complaint must be dismissed on the pleadings because she failed to name "an indispensable party." Appellant's Br. p. 7. A Rule 12(C) allegation is also treated as a Rule 12(B)(6) claim when dismissal is sought because the real party in interest is not named. See Mourning, 72 N.E.3d at 486. Newman insists that Beckner's "beef is with the escrow agent, who . . . agreed with [] Newman that he was entitled to the escrow money because of [Beckner's] refusal to perform." Appellant's App. Vol. II, p. 60. Newman's argument is inapposite, nonetheless, because under Rule 12(B)(6), the failure to name the real party in interest is informed by Rule 17. Trial Rule 17 provides that "Every action shall be prosecuted in the name of the real party in interest." (emphasis added). But, here, Newman argues that Beckner has omitted a defendant. Beckner contends only that Newman breached the Purchase Agreement. She has made no claim against the escrow agent. If Newman meant to argue that Beckner had failed to join a party needed for just adjudication, he should have asserted that defense under Rule 12(B)(7) ("Failure to join a party needed for just adjudication under Rule 19."). Newman's reliance on Rule 12(B)(6) for failure to join the escrow agent as a defendant is misplaced.
This statement is incorrect. The escrow agent made no such determination. As provided in the Purchase Agreement, the escrow agent notified the parties that she would retain the earnest money for sixty (60) days and would disburse the earnest money to Newman if the parties had not agreed to release the money or initiated litigation. See n.3, supra.
[¶ 35] Likewise, Newman's claim that Beckner could only have sought relief through a declaratory judgment action is without merit. Looking at the pleadings, which include the Purchase Agreement, there is no provision indicating that a party's exclusive recourse in the event of a breach would be to seek a declaratory judgment. We have already determined that the rightful ownership of the earnest money could be established directly through Beckner's breach of contract claim. The customary pleading for an alleged breach of contract is a complaint for breach of contract. A declaratory judgment is not required to resolve this contract dispute. Newman's assertion that Beckner "mispackage[ed] her claim as a breach of contract claim" is not well taken. Tr. Vol. II, p. 4.
[¶ 36] Looking only at the language of Beckner's complaint and the attached exhibits, we see things as the trial court did. For each, and all, of these reasons, the trial court correctly denied Newman's motion for partial judgment on the pleadings.
II. Summary Judgment
[¶ 37] The trial court concluded that Beckner was entitled to summary judgment because "there was no meeting of the minds regarding [Newman's] counteroffer regarding pool repairs. Therefore, [Beckner] is entitled to the return of her security deposit." Appellant's App. Vol. II, p. 110. Newman categorically challenges the court's order, contending that Beckner was not entitled to summary judgment given her "failure to designate evidence sufficient to meet her initial burden under Trial Rule 56 and the existence of genuine disputes of material fact plainly inconsistent with a summary adjudication." Appellant's Br. p. 5.
A. Standard of Review
[¶ 38] "When reviewing the grant of summary judgment, our standard of review is the same as that of the trial court[,]" that is, "[w]e stand in the shoes of the trial court and apply a de novo standard of review." Poiry v. City of New Haven, 113 N.E.3d 1236, 1239 (Ind.Ct.App. 2018). "Our review of a summary judgment motion is limited to those materials designated to the trial court." Id.
"Summary judgment is appropriate only where the designated evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Id. "We review the pleadings and designated materials in the light most favorable to the non-moving party." Id. "Additionally, all facts and reasonable inferences from those facts are construed in favor of the non-moving party." Id. "The initial burden is on the moving party to demonstrate the absence of any genuine issue of fact as to a determinative issue, at which point the burden shifts to the non-movant to come forward with contrary evidence showing an issue for the trier of fact." Id.
[¶ 39] "A trial court's grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous." Id. "We will affirm upon any theory or basis supported by the designated materials." Id. "When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court." Id.
[¶ 40] As for Newman's counterclaims and affirmative defenses, he appeals from a negative judgment. "'A judgment entered against a party bearing the burden of proof is a negative judgment.'" Ayers v. Stowers, 200 N.E.3d 480, 483 (Ind.Ct.App. 2022) (quoting RCM Phoenix Partners, LLC v. 2007 E. Meadows, LP, 118 N.E.3d 756, 760 (Ind.Ct.App. 2019)). "'On appeal from a negative judgment, this Court will reverse the trial court only if the judgment is contrary to law.'" Id. "'A judgment is contrary to law if the evidence leads to but one conclusion and the trial court reached an opposite conclusion.'" Id.
[¶ 41] Beckner was required to establish the following elements in prosecuting her breach of contract claim: "'the existence of a contract, the defendant's breach thereof, and damages.'" Auto-Owners Ins. Co. v. C &J Real Estate, Inc., 996 N.E.2d 803, 805 (Ind Ct. App. 2013) (quoting Fowler v. Campbell, 612 N.E.2d 596, 600 (Ind.Ct.App. 1993)). Newman simply denies that he breached the contract, alleging that the contract did not place any obligation upon him to authorize release of the escrow funds.
B. Attack on Beckner's Designation of Materials
[¶ 42] Beckner's motion for summary judgment stated that "[t]his Motion is further supported by Plaintiff's Brief in Support of Motion for Summary Judgment and the other pleadings and papers on file." Appellant's App. Vol. II, p. 67. Newman claims this is insufficient because "Rule 56(C) . . . requires a moving party to '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.'" Appellant's Br. pp. 26-27. He notes that Beckner's brief cites "exclusively" to her complaint, but that her verification did not indicate that she had "personal knowledge of all the assertions upon which she is apparently relying as "evidence." Id. at 27.
[¶ 43] As Newman acknowledges, Beckner's complaint was not required to be verified. See id. In that event, Rule 11(C) requires only that the signer of a verified pleading had "reasonable cause to believe the existence of the facts or matters stated or alleged therein." Beckner was not required to have actual knowledge of every fact but was only required to have reasonable cause to believe the facts alleged in her complaint are true. The personal knowledge requirement for an affidavit in support of summary judgment presents no impediment to our consideration of Beckner's complaint because under Trial Rule 56(A), a party may "move with or without supporting affidavits for a summary judgment." The verification of Beckner's complaint was surplusage.
[¶ 44] Newman also challenges Beckner's designation of "Plaintiff's Brief in Support of Motion for Summary Judgment and the other pleadings and papers on file," claiming that they lack the appropriate degree of specificity. But "Trial Rule 56(C) does not mandate either the form of designation, i.e., the degree of specificity required, or its placement, i.e., the filing in which the designation is made." Filip v. Block, 879 N.E.2d 1076, 1081 (Ind. 2008). "Trial Rule 56(C) does compel parties to identify the 'parts' of any document upon which they rely." Id. Here, Beckner placed her general designation of evidence in the motion for summary judgment, directing the court to her brief in support of her motion for summary judgment. Then, in her brief, Beckner provided the court with specific document names and paragraph numbers. We conclude that Beckner's designation does exactly what was required in that "[i]f the designation is not in the motion itself, it must be in a paper filed with the motion, and the motion should recite where the designation of evidence is to be found in the accompanying papers." Id.
C. Judicial Admissions
[¶ 45] Newman maintains that the trial court erred when it granted summary judgment because Beckner's legal cause for terminating the Purchase
Agreement depends upon whether the condition of the pool liner constituted a "defect" as defined in the Purchase Agreement. Only the failure to cure a condition that amounts to a defect, as distinct from routine maintenance or minor repair, allows a buyer to terminate the agreement. Appellant's App. Vol. II, p. 15 (¶F). We note that Newman flatly rejected Beckner's request that the damaged pool liner be repaired. In his Seller's Inspection Response #1, he stated that, "[t]he pool liner functions properly and is only an aesthetic issue -no repairs to be made." Id. at 21. His initial position was that the condition of the pool liner did not constitute a defect under the Purchase Agreement and, as such, he was not required to repair it. Later, after Beckner sued him for breach of contract, Newman countered that he would have replaced the pool liner at his expense if he had not been misled by Beckner's alleged fraud and misrepresentation that she would accept the terms stated in his inspection response. In effect, Newman contends simultaneously both that the condition of the pool liner was not a defect, and that he would have replaced the pool liner at his expense if he had only known that Beckner meant what she said in her Buyer's Inspection Response #1, namely, that for Beckner the damaged condition of the pool liner was a deal breaker.
The Purchase Agreement defines "defect" as "a condition that would have a significant adverse effect on the value of the Property, that would significantly impair the health or safety of future occupants of the property, or that if not repaired, removed, or replaced would significantly shorten or adversely affect the expected normal life of the premises." Appellant's App. Vol. II, p. 15 (¶G).
[¶ 46] Newman attempts to have it both ways by maintaining that the damaged pool liner was not a defect while making a judicial admission that he would, in effect, have waived the defect issue and replaced the pool liner at his expense but for Beckner's purported fraud and representation. See id. at 28 (Counterclaim ¶8). A judicial admission is a concession of fact which is not to be considered and weighed as other evidence but is conclusive and binding on the trier of fact. Stewart v. Alunday, 53 N.E.3d 562, 568 (Ind.Ct.App. 2016). Judicial admissions are voluntary and knowing concessions of a fact by a party or a party's attorney occurring at any point in a judicial proceeding. Id. A judicial admission is an express waiver in court or preparatory to trial by a party or his attorney conceding for the purposes of the trial the truth of some alleged fact. Id. Judicial admissions may be contained in current pleadings in the case being tried or made in open court. Id. Newman's judicial admission appears in his three counterclaims and is reaffirmed in his opening brief on appeal. Appellant's App. Vol. II, p. 28 (Common Factual Allegations ¶8); p. 29 (¶15 Breach of Contract); p. 30 (¶20 Fraud/Misrepresentation); p. 30 (¶24 Abuse of Process); Appellant's Br. p. 8. The "vital feature of a judicial admission is . . . its conclusiveness upon the party making it, i.e., the prohibition of any further dispute of the fact by him and of any use of evidence to disprove or contradict it." Id. at 568-69 (quoting 9 Wigmore, Evidence § 2590) (Chadbourn rev. 1981). "[A] judicial admission is a substitute for evidence, in that it does away with the need for evidence." Id. (quoting 9 Wigmore, Evidence § 2588).
[¶ 47] Newman's judicial admission requires that we take him at his word and establishes that if it were not for his reliance upon Beckner's alleged fraud and representation, he would have agreed to replace the damaged pool liner and the sale would have closed without any disagreement over whether the damaged liner constituted a defect under the Purchase Agreement. His judicial admission before the trial court and this Court will obviate consideration of his counterclaims and affirmative defenses, and he will have waived any right to assert that the damaged pool liner did not constitute a defect under the Purchase Agreement, unless he can demonstrate that his alleged detrimental reliance was justified by the fraud and misrepresentation he attributes to Beckner. In other words, whether the damaged pool liner amounted to a defect under the Purchase Agreement which, as Newman alleges, "obstructed [Beckner's] path to summary judgment," Appellant's Reply Brief, p. 5, will not become a genuine issue of material fact unless Newman can demonstrate that he had a right to rely upon Beckner's alleged fraud and misrepresentation when in his response to the inspection report he declined to make the pool liner repair that Beckner requested. Otherwise, by his own admission, Newman has waived and conceded any claim that the damaged pool liner did not constitute a defect, and he is bound by his Seller's Inspection Response #1 in which he declined to repair the pool liner, a response which gave Beckner legal cause for termination of the Purchase Agreement.
D. Fraud and Misrepresentation
[¶ 48] Newman alleges that he was misled by Beckner's fraud and misrepresentation that she would accept his Seller's Inspection Response #1 and that Beckner was legally bound to accept his counteroffer based upon communications which occurred on the sidelines between the brokers. We cannot agree.
[¶ 49] Beckner admits that, "The Agreement was terminated because of Newman's refusal to repair the condition of the pool liner." Appellee's Br. p. 26. There is no issue of fact on this point. And, as we have just explained, Newman's judicial admission will obviate consideration of whether the condition of the pool liner constituted a "defect" unless Newman has designated evidence that would support his detrimental reliance claim against Beckner. Thus, whether the pool liner defect issue presents a genuine issue of material fact turns upon whether Newman justifiably relied on Beckner's broker's alleged representation that with adequate assurances from Caribbean Pools, Beckner would accept the liner in its "as is" condition when Newman returned his Seller's Response to Inspection Report #1 in which he declined to repair it.
[¶ 50] When the trial court entered judgment for Beckner, by implication the court found against Newman on his counterclaim of fraud and misrepresentation and on his counterclaims and affirmative defenses. See n.4, supra. Therefore, he appeals from a negative judgment on those issues.
[¶ 51] "The elements of actual fraud are: (i) material misrepresentation of past or existing facts by the party to be charged, (ii) which was false, (iii) which was made with knowledge or reckless ignorance of the falseness, (iv) which was relied upon by the complaining party, and (v) proximately caused the complaining party injury." Song v. Iatarola, 76 N.E.3d 926, 934 (Ind.Ct.App. 2017), trans. denied.
[¶ 52] Apart from Newman's contention that Beckner's complaint failed to state a claim or cause of action, Newman alleges, in effect, that he was hoodwinked, that he was misled to believe that Beckner would accept his Seller's Inspection Response #1. Newman contends that Beckner was legally bound to accept his counteroffer by communications on the sidelines between their brokers. "[R]eliance on the omission or misrepresentation must be justified before the fraud becomes actionable." Morgan v. Dickelman Ins. Agency, Inc., 202 N.E.3d 454, 465 (Ind.Ct.App. 2022), trans. denied. "To demonstrate reasonable reliance, the plaintiff must show not only that he in fact relied on the misrepresentation, but also that he had a right to rely on it." Id. (emphasis added).
[¶ 53] For the reasons we explain below, we conclude that Newman's reliance on Beckner's alleged fraud and misrepresentation as a defense to her complaint that he breached their contract, and as an excuse for his failure and refusal to authorize return of the earnest money deposit, is misplaced for two adequate and independent reasons: (1) Newman had no right to rely on communications alleged to have occurred between his broker and Beckner's broker in that neither agent had authority to bind his or her principal on the price, terms, or conditions of the sale; and (2) Newman had no right to rely on the representations he attributes to Beckner acting through her broker because those representations, even if they were authorized, amounted to nothing more than a promise of future performance, which is not a ground for actionable fraud.
[¶ 54] Newman has failed to designate admissible evidence that there exists a genuine issue of material fact on the question of whether Beckner committed fraud and misrepresentation, which is the necessary predicate for consideration of (1) whether the pool liner constituted a defect and (2) whether Beckner refused to close without legal cause. Thus, as explained below, we conclude that a trial is not required on Beckner's complaint that Newman breached the Purchase Agreement.
1. Agency Authority of the Brokers
[¶ 55] The statute of frauds provides, in pertinent part, that a person may not bring an action involving any contract for the sale of land unless the promise, contract, or agreement on which the action is based is in writing signed by the party against whom the action is brought or by the party's authorized agent. See Indiana Code section 32-21-1-1(b)(4) (2002). Newman attempts to circumvent the statute's writing requirement by claiming detrimental reliance based on communications between his broker and Beckman's broker. Counsel for Newman argued that, "[Gheaja's] recitation of the prior conversation that she had with Mr. Utesch . . . is a representational statement .... We detrimentally [relied] upon it, and it creates a genuine issue of material fact as to whether there was fraud in the inducement, which is an exception to the statute of frauds." Tr. Vol. II, pp. 39-40.
[¶ 56] Newman's detrimental reliance argument also assumes that the brokers, Gheaja and Utesch, were authorized as agents to bind their principals, but Newman cannot defeat summary judgment with a supposition. Listing contracts, which provide for the payment of a broker's commission, must be in writing. Ind. Code § 32-21-1-10 (2002). Newman has not designated his listing contract with Gheaja as the seller's broker, nor has he designated Beckner's brokerage agreement with Utesch as the buyer's broker. Such agreements typically describe the nature and extent of the authority granted to the broker.
[¶ 57] In Demming v. Underwood, 943 N.E.2d 878, 888 (Ind.Ct.App. 2011), we discussed the real estate agency statutes and correctly noted that "the applicable statutes are nearly opaque" and that "there is a dearth of case law interpreting them." The Real Estate Broker Licensing Act declares broadly that: "'agency relationship' means a relationship in which a licensee represents a client in a real estate transaction." Ind. Code § 25-34.1-10-0.5 (1999). This generic statutory definition of a broker's agency is inconclusive and says nothing about the nature and extent of the agency relationships between the seller, the buyer, and their brokers in this case.
[¶ 58] Where a contract is silent or ambiguous, we look to the course of conduct of the parties to determine their intent and legitimate expectations. See Sharp v. Jones, 497 N.E.2d 593, 596 (Ind.Ct.App. 1986) ("To determine the true intent of the parties, we may look to their conduct during the course of the contract."). Here, both the parties and their agents contemplated that the responses to the inspection report would be reduced to writing and signed by the parties, not by their agents. And this was, in fact, their course of conduct. Their agreements and disagreements are documented on Indiana Association of Realtors forms, including the Purchase Agreement, which they both signed; Buyer's Inspection Response #1, which Beckner signed; Seller's Inspection Response #1, which Newman signed; and Buyer's Inspection Reply #1, which Beckner signed and in which she rejected Newman's counteroffer and terminated the transaction.
That course of conduct, which is undisputed, is a reliable guide to determine the intent of the parties that each step in the transaction would be documented in writing and signed by the party making the document. See Castleton Corner Owners Ass'n, Inc. v. Conroad Assocs., L.P., 159 N.E.3d 604, 612 (Ind.Ct.App. 2020).
[¶ 59] Newman has not shown any evidence that the brokers who assisted with this transaction had either apparent or actual authority to bind their principles concerning the price, terms or conditions of the sale. Thus, for that reason we decline Newman's invitation to look outside the four corners of these unambiguous contract documents and consider parol evidence, such as it is, of communications between the parties' brokers.
[¶ 60] The parties contemplated that their agreements and disagreements would be submitted in writing and signed by the principals. There is no evidence that the brokers had authority to bind their respective principals during the negotiations. The parties' course of conduct throughout the transaction supports that conclusion and only that conclusion.
2. Promise of Future Performance
[¶ 61] Finally, a showing of actual fraud requires the misrepresentation of a past or existing fact by the party to be charged. See Song, 76 N.E.3d at 934. Actual fraud cannot be predicated upon promises of future performance. Blaising v. Mills, 374 N.E.2d 1166, 1169 (Ind.Ct.App. 1978). Thus, even assuming the statements alleged to have been made by Beckner's broker could be attributed to Beckner through her agent, they would have amounted to nothing more than a promise of future performance.
3. No Reliance Interest
[¶ 62] "Actual fraud exists when there is a material misrepresentation of a past or existing fact made with knowledge of or reckless disregard for the falsity of the statement to the detrimental reliance of a third party." Morgan, 202 N.E.3d at 465 (citing Munsell v. Hambright, 776 N.E.2d 1272, 1281 (Ind.Ct.App. 2002), trans. denied). "[R]eliance on the omission or misrepresentation must be justified before the fraud becomes actionable." Id. A plaintiff claiming detrimental reliance must show that the reliance claimed was reasonable, and to demonstrate reasonable reliance, the plaintiff must show not only that he in fact relied on the misrepresentation, but also that he had a right to rely on it. Id.
[¶ 63] "Our supreme court has stated that while 'the reasonableness of the plaintiffs' reliance is usually a question for the trier of fact[,] the reasonableness of reliance can in some circumstances be determined as a matter of law.'" Id. (quoting Allen v. Great Am. Rsrv. In. Co., 766 N.E.2d 1157, 1164 (Ind. 2002) (citation omitted)). "Where the evidence is susceptible to only one interpretation, however, 'it is for the court to determine as a matter of law whether plaintiff was justified in relying on the representation and whether he was negligent in doing so.'" Id. (quoting Plymale v. Upright, 419 N.E.2d 756, 763 n.6 (Ind.Ct.App. 1981)).
[¶ 64] Here we can determine with confidence, as a matter of law, that given the brokers' lack of authority to bind their principals, and given the alleged promise of future performance, Newman's purported reliance on communications between the brokers was not reasonable. Newman had no right to rely on conversations between brokers employed to facilitate the transaction where neither Beckner's broker nor Newman's broker had actual or apparent authority to bind either of them concerning the price, terms, or conditions of the pending sale that would supersede the written documents signed by the parties. And, again, both parties to the Purchase Agreement and their agents contemplated that the responses of the Buyer and Seller to the inspection report would be reduced to writing, as required by the statute of frauds. Newman has not satisfied the negative judgment standard of review and has not shown that the trial court erred as a matter of law when it rejected his attempt to circumvent the statute of frauds.
III. Conjured Motives
[¶ 65] In addition to Newman's contention that Beckner's complaint failed to state a claim or cause of action, and that it was Beckner who breached their agreement, as we have discussed, Newman alleges that acting through her broker Beckner tricked him when she led him to believe she would accept his Seller's Inspection Response #1. In his appellate brief Newman says that Beckner "fraudulently ginned up an inspection-response dispute in a mistaken belief that it would give her an exit ramp from a contract she simply no longer wanted to perform for her reasons that have nothing to do with the alleged conditions she complained about." Appellant's Br. pp. 9, 31. He notes that under lines 425-426 of the Purchase Agreement the parties were required "to use good faith and due diligence in completing the terms and conditions" of the Agreement, and in his appellate brief he alleges that Beckner flaunted "her obligation to negotiate inspection/repair items in good faith." Id. at 9, 26.
[¶ 66] Newman accuses Beckner of bad faith, misrepresentation, and even fraud, while there are no designated objective facts to support those contentions. As we have already observed, under the objective theory of contracts, the intent relevant in contract matters is not a party's subjective intent but the outward manifestation of it. Akin, 180 N.E.3d at 377. Newman asks that we look outside the contract documents to conjure up Beckner's invisible, dishonest purpose and intent. We decline that invitation. There is no evidence in this record to suggest that Beckner did anything other than to exercise her contract rights by the execution of documents appropriate for the transaction and later to file a bona fide suit for breach of contract.
IV. Appellate Attorney's Fees
[¶ 67] Beckner seeks appellate attorney fees as damages for "Newman's bad faith appeal." Appellee's Br. p. 26. She argues that Newman filed this appeal "despite his long-held knowledge that the liner in the inground pool" could not be repaired, and that this "conduct falls directly within the purview of the purpose and reasoning of Appellate Rule 66(E)." Id. at 27.
[¶ 68] "Indiana Appellate Rule 66(E) provides, in pertinent part, '[t]he Court may assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorney's fees.'" Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App. 2003). "Our discretion to award attorney fees under Indiana Appellate Rule 66(E) is limited, however, to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay." Id. "Additionally, while Indiana Appellate Rule 66(E) provides this Court with discretionary authority to award damages on appeal, we must use extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal." Id.
[¶ 69] "Indiana appellate courts have formally categorized claims for appellate attorney fees into 'substantive' and 'procedural' bad faith claims." Id. "To prevail on a substantive bad faith claim, the party must show that the appellant's contentions and arguments are utterly devoid of all plausibility." Id. "Procedural bad faith, on the other hand, occurs when a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court." Id. at 346-47. "Even if the appellant's conduct falls short of that which is 'deliberate or by design,' procedural bad faith can still be found." Id. at 347.
[¶ 70] In Newman's Brief in support of his Motion for Partial Judgment on the Pleadings, he asserted that "[t]here is simply no good-faith argument that Defendant Newman's advocacy for his claim to the earnest money constitutes a breach of any obligation he owes under the parties' contract." Appellant's App. Vol. II, p. 63 (emphasis added). Again, on appeal Newman contends that "[t]here is simply no good-faith argument that Newman's advocacy for his claim to the earnest money breached of any obligation he owed under the parties' Purchase Agreement." Appellant's Br. p. 23 (emphasis added). But Beckner is not challenging Newman's advocacy, his right to advocate that he was not required under the contract to authorize release of the earnest money. She is challenging his contention that she has failed to state a claim for breach of contract.
[¶ 71] On its face Beckner's complaint alleges that she was entitled to release of the earnest money when the Purchase Agreement terminated according to its terms and that Newman breached their contract when he failed or refused to authorize release of the earnest money. That is, precisely, a breach of contract claim, which the trial court recognized when it stated, "This is a contract case. This is like a first-year law school contract." Tr. Vol. II, p. 21.
[¶ 72] In his Motion for Partial Judgment on the Pleadings, Newman contended that he "plainly has no contractual obligation to agree to a mutual release or to otherwise agree that the escrow agent should release the earnest money to Plaintiff Beckner." Appellant's App. Vol. II, p. 37. Newman mischaracterizes and misstates the issue. Beckner's complaint asserts that Newman has a legal obligation to authorize release of the escrow deposit, and whether he agrees with her complaint or not, her complaint is not about Newman's "advocacy" for his legal position and does not require, as he contends, that he capitulate. Her complaint states a claim for breach of contract based upon the contract documents attached, a pleading which clearly and unambiguously states a claim upon which relief can be granted.
Newman's briefing is replete with condescension and contempt for Beckner tinged with personal animus. His briefing goes beyond advocacy and ventures into disparaging ad hominem attacks. This manner of argument, which adds nothing to the merits, is unprofessional and unpersuasive. Newman, an attorney proceeding pro se, should know better.
[¶ 73] We do not award appellate attorney's fees where a party makes a colorable and otherwise cognizable claim. A colorable claim is a claim that has a plausible basis both in fact and in law. Newman's Trial Rule 12(C) motion stated that Beckner's complaint "fails to allege operative facts sufficient to state a breach-of-contract claim (or any other claim)." Appellant's App. Vol. II, p. 35. He repeats this argument in his appellate brief, stating that "Beckner's complaint did not allege operative facts capable of supporting relief under any set of circumstances." Appellant's Br. p. 16. This argument does not present a colorable claim.
[¶ 74] Beckner's complaint has a basis both in fact and in law. On its face Beckner's complaint pleaded operative facts necessary to set forth an actionable claim for breach of contract, namely, that Beckner and Newman were parties to a real estate purchase agreement and that Newman breached the agreement when he failed or refused to authorize return of her earnest money. Newman contends that the contract did not place "any obligation" on him "to authorize the release of the escrowed funds - under any set of facts." Id. at 21 (emphasis added). This contention is a defense to Beckner's complaint, but it does not eliminate her complaint under Trial Rule 12(C).
[¶ 75] We need not consider Beckner's contention that Newman has pursued a "bad faith appeal . . . despite his long-held knowledge that the liner in the inground pool" could not be repaired. Appellee's Br. pp. 26-27. Newman may, of course, dispute the operation and effect of the Purchase Agreement and assert on the merits that under the Purchase Agreement he had no contractual obligation to return the earnest money. But his contention that the facts alleged in Beckner's complaint are incapable of supporting relief under any set of circumstances, see McQueen, 711 N.E.2d at 65, is specious and utterly devoid of all plausibility. As such, Beckner is entitled to have and recover from Newman reasonable appellate attorney's fees attributable to her defense on appeal against Newman's meritless Trial Rule 12(C) Motion for Partial Judgment on the Pleadings.
Conclusion
[¶ 76] In light of the foregoing, we affirm the trial court's order denying Newman's motion for judgment on the pleadings, and its order granting summary judgment in favor of Beckner. We grant Beckner's request for attorney's fees solely on Newman's appeal from the denial of his Motion for Judgment on the Pleadings and remand to the trial court for a determination of reasonable appellate attorney's fees.
[¶ 77] Affirmed and remanded.
Crone, J., and Tavitas, J., concur.