Opinion
23A-PL-1859
10-22-2024
Danny M. Newman Jr., Appellant-Defendant, v. Kelly Beckner, Appellee-Plaintiff.
APPELLANT 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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
APPELLANT PRO SE Danny M. Newman Jr. Columbus, Ohio
ATTORNEY FOR APPELLEE Michael A. Langer Langer & Langer Valparaiso, Indiana
MEMORANDUM DECISION ON REHEARING
Najam, Senior Judge.
[¶1] Danny M. Newman Jr. has filed a petition for rehearing from this Court's decision in Newman v. Beckner, No. 23A-PL-1859 (Ind.Ct.App. Aug. 22, 2024) (mem.), contending that we have contravened precedent by concluding that he made a judicial admission. We grant his petition for rehearing for the sole purpose of clarifying and confirming our original decision.
[¶2] We need not recite the facts and procedural history of this case here because it is detailed in our original decision. But in a nutshell, a real estate transaction fell through, and the parties contest ownership of the $7,000.00 earnest money Beckner tendered.
[¶3] One of the conclusions we reached sua sponte was that Newman had made a judicial admission in his counterclaims and again in his opening brief on appeal. Common Factual Allegation Number 8 (Paragraph 8) reads as follows:
8. But for Plaintiff Becker's[sic] representation, communicated through her real-estate agent, that the response reflected in the document attached as Exhibit C to the Plaintiff's Complaint and titled "Seller's Inspection Response #1" would be acceptable, Defendant Newman would have responded differently to the document attached as Exhibit B to the Plaintiff's Complaint and titled "Buyer's Inspection Response #1," and would instead have agreed to address and repair the items identified by Plaintiff
Beckner, including, without limitation paying a pool contractor in full to replace and install the pool liner.Appellant's App. Vol. II, p. 27-8. We observed that, "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." Newman v. Beckner, No. 23A-PL-1859, at *10 (Ind.Ct.App. Aug. 22, 2024) (mem.). We concluded that "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." Id.
[¶4] Ultimately, we concluded that Newman had no right to rely on Beckner's agent's alleged misrepresentation because "(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." Id. at *11.
[¶5] In a well-reasoned and articulate Petition for Rehearing, Newman asserts that we erred when we held that he made a judicial admission. Newman argues that his pleading stating that he "would have responded differently" and would have agreed to replace the pool liner at his expense, did not amount to "a voluntary and knowing concession of fact." Reh'g Pet. p. 12. He contends, in effect, that this pleading was insignificant, if not gratuitous. We cannot agree. Newman continued to advance this same argument on appeal as he did before the trial court. This pleading was not tangential but was tantamount to an affirmative defense against Beckner's complaint that Newman had breached their contract.
[¶6] He relies primarily on the Supreme Court's decision in Brown v. Grzeskowiak, 101 N.E.2d 639 (Ind. 1951). Grzeskowiak alleged mistakes and irregular conduct in the counting of votes. The Court held that
'A party wishing to avail himself of an admission or averment in a pleading of the adverse party must accept it as an entirety.' 71 C.J.S., Pleading, § 61c, page 156. He cannot split it up, accept part of it, alter that part by proof, and claim the benefit of the result. See Stock v. Schloman, 1930, 226 Mo.App. 234, 42 S.W.2d 61. Moreover, a party cannot take advantage of an admission in the pleading of his adversary where he has denied the truth of the allegation and joined issue upon it, 71 C.J.S., Pleading, § 59c, page 152, even though the denial be an indirect one. Meredith v. Lackey, 1860, 14 Ind. 529; Id., 16 Ind. 1.Grzeskowiak, 101 N.E.2d at 645. Newman cites Beckner's response to his averment in Paragraph 8, "Beckner is without sufficient information or belief to admit or deny Newman's allegation contained in Rhetorical Paragraph 8 of his Counter-Claim and therefore denies the same[,]" Appellant's App. Vol. II, p. 47, to argue that her indirect denial precluded her from using his averment as a judicial admission, citing Grzeskowiak and its progeny.
[¶7] But Grzeskowiak and its progeny concern judicial admissions of past or existing facts. Here, there is a material difference: Newman's averment that he "would have responded differently" is a prospective assertion, a hypothetical. Beckner cannot be compelled to admit a hypothetical in order to preserve Newman's judicial admission because under no circumstances could she know the truth of the matter asserted.
Meredith v. Lackey, 16 Ind. 1, 6-7 (1860), which was cited in Grzeskowiak, first mentions an indirect denial to an averment. The cases cited by Newman in his petition as progeny of Grzeskowiak are as follows: Upchurch v. Henderson, 505 N.E.2d 455, 458-59 (Ind.Ct.App. 1987) (denial of allegation asserting amount paid on a contract; allegation could not then be used as admission); Wagner v. Riley, 499 N.E.2d 1155, 1157 (Ind.Ct.App. 1986) (amount of damages was contested; amount in prayer for relief was not a judicial admission because denied via damages contest); Chase Manhattan Bank v. Lake Tire Co., 496 N.E.2d 129, 132 (Ind.Ct.App. 1986) (allegation that Chase was actual and bona fide owner of lease could not be used as admission where defendant neither admitted nor denied due to insufficient information); Abex Corp. v. Vehling, 443 N.E.2d 1248, 1253, n. 4 (Ind.Ct.App. 1983) (denial of allegation in complaint precludes use of allegation as admission); Indiana State Highway Com. v. Vanderbur, 432 N.E.2d 418, 422 (Ind.Ct.App. 1982) (adverse party's denial of averment in complaint precludes its use as judicial admission); Lamb v. Thieme, 367 N.E.2d 602, 604 (Ind.Ct.App. 1977) (averment of ownership of shares of stock was not a judicial admission because number of shares owned was at issue).
[¶8] Trial Rule 8(B) states that a responsive pleading shall "admit or controvert the averments in the preceding pleading," and Trial Rule 8(B)(2) provides that, "All denials shall fairly meet the substance of the averments denied." For pleading purposes, Beckner's answer that she was without sufficient information or belief to admit or deny Newman's allegation in Paragraph 8 "shall be considered a denial," that is, the averment shall be deemed denied. In other words, Trial Rule 8(B)(2) compelled Beckner to "deny" Newman's claim. This was a Hobson's choice. See Bisard v. State, 26 N.E.3d 1060, 1067 (Ind.Ct.App. 2015) ("This court has defined a 'Hobson's choice' as being 'an apparently free choice that is really no choice at all.'") (quoting Gray v. State, 841 N.E.2d 1210, 1218 (Ind.Ct.App. 2006)), trans. denied. Nevertheless, in substance and in fact, her answer means what it says, that the pleader lacks knowledge to admit or deny the averment. Grzeskowiak holds that "a party cannot take advantage of an admission in the pleading of his adversary where he has denied the truth of the allegation[.]" 101 N.E.2d at 645. But, here, the deemed denied provision of Trial Rule 8(B)(2) cannot eliminate the gravamen of Beckner's response, that she was "without sufficient information or belief to admit or deny" Newman's allegation in Paragraph 8.
[¶9] Thus, while Trial Rule 8(B)(2) dictates that the form of Newman's response "shall be considered a denial," the substance of her response remains intact. The Rule does not contemplate these circumstances in which Beckner cannot know and will never have sufficient information to know what Newman would have done because Newman's hypothetical judicial admission has no basis in past or existing fact. Thus, we conclude that Grzeskowiak and the other cases cited by Newman holding that a denial vitiates a judicial admission are inapposite and not controlling.
[¶10] Trial Rule 1 provides that the rules "shall be construed to secure the just, speedy and inexpensive determination of every action." And Trial Rule 8(F) states, "All pleadings shall be so construed as to do substantial justice, lead to a disposition on the merits, and avoid litigation of procedural points." On rehearing, Newman asserts a procedural point based upon Beckner's indirect denial. But on these facts, substantial justice would not be served if Beckner were precluded by a procedural rule from denying Newman's hypothetical judicial admission.
[¶11] "Where the purpose of a rule is satisfied, this court will not elevate form over substance." French v. State, 754 N.E.2d 9, 15 (Ind.Ct.App. 2001). The purpose of Trial Rule 8(B) is for a responsive pleading to state "the pleader's defenses to each claim asserted[.]" Here, Beckner's response satisfies that purpose. Given the unique posture of Newman's judicial admission, Becker's responsive pleading - that she was without sufficient information or belief - is the only substantive response available to her and the only construction of Newman's claim and Beckner's response that will "do substantial justice[.]" Trial Rule 8(F). Thus, we decline to elevate form over substance. Given that Newman's claim of what he would have done is at the core of his defense against Beckner's complaint, he may not benefit from asserting that position in his pleadings only later to repudiate it to Beckner's detriment.
[¶12] Consequently, we grant Newman's petition for rehearing and confirm our original decision.
[¶13] Rehearing granted.
Crone, J., and Tavitas, J., concur.