*1 matter.2 this
CONCLUSION conclude we foregoing, Based amended properly Complaint filed Complaint Amended that limitations. statute applicable within court trial Therefore, conclude Peg- over jurisdiction matter subject has the trial Complaint Amended gy's Amend- Peggy's dismissing court erred reverse Accordingly, Complaint. ed dis- April Order court's trial Complaint Amended missing Peggy's reinstate court trial instruct action. instrue- with remanded
Reversed tions. NAJAM, JJ., concur.
BROOK COMPANY, succes OIL MARATHON Petro merger sor Appellant-Plaintiff, Company, leum COLLINS, Appellee-Defendant. Danny 80A02-0002-CV-111. No. Indiana. Appeals Court 2, 2001. Feb. Complaint Amended filing of the whether Amended concluded Since we have the initial filing date of back relates applica- timely within filed Complaint was 15(C). TR. Complaint under limitations, not address we need ble statute *2 Schuck, Marshall, Cross, Feick, M.
John Muncie, P.C., Feick, DeWeese, & Cross Appellant. Attorney for IN, Ragains, & Smith Ragains, R. Patrick IN, Appellee. Anderson, Attorney for
OPINION
BROOK, Judge Summary Case Compa- Oil Marathon Appellant-plaintiff Marathon by merger ny, successor ("Marathon") appeals Company, Petroleum appellee-defendant in favor judgment a ("Collins"). affirm. We Danny Collins
Issues issues, which raises four
Marathоn as follows: restate and consolidate statute I. Whether recovery of precluded have should damages; supports a II. Whether fraud; and constructive finding of proper ordered TIL. Whether and to damage awards Collins. History and Procedural
Facts judg- favorable facts most The purchase wished that Collins ment used formerly been estate, had which real He told station, Marathon. gas as a Jerry representative real estate ("Jansen") of his desire Jansen $55,000.00 and for Elwood Although lot. a used сar utilize it told Collins price, he agreed Jansen prop- to lease preferred that Marathon certain work it so selling erty before Accordingly, on first. performed could be cighteen- an 1990, signed 29, Collins May lease, on June began month pay Marathon required $1,400.00 as in rent per month $700.00 also re- lease deposit security roof repair quired furnace, alter driveway, replace long- it no so that appearance station's Jansen station. a Marathon er resembled indicated that Marathon grant ty. Col- All utilities were disconnected. The lins five-month rent credit for the reha- property was found to be contaminated. performed; however, bilitation he in the Collins moved his business different, to a lease, written Marathon essentially less waived desirable location. On February only the first two months' payments. rental Collins filed an answer and counter claim alleging lease, breach of the breach Collins took of the property of certain promises, and hidden environ in June but did not ocсupy the build- problems. mental responded ing until August. repaired He the roof that the lease constituted the entire writ and driveway, replaced furnace, cov- ten agreement between parties ered the building with siding, and had the counterclaim failed to state a various improvements other done antici- claim which relief could granted. be pation of purchasing the property. Collins *4 1992, In late Collins went out of business spent had several thousand dollars the and sold his remaining auto inventory at a рroperty when again Jansen raised the loss. repaid Star for the remain issue of buying Collins' the property. Col- der of his loan by taking out a mortgage lins, who looked forward to finally purchas- on his house.1 estate, ing the real approached Star Bank ("Star") for a loan for the used ear lot. Collins filed a partial motion for Meanwhile, Collins received summary an unsigned judgment. 3, 1999, On March purchase offer from Marathon. ap- granted motion, Star the finding that proved loan, Collins for "tenancy the the cоntingent terminated as of 1/23/92." upon an environmental inspection. filed a motion to correct errors or in conveyed the Jansen, this information alternative to issue an who order that just there is no thereafter never reason for delay returned Collins' and direct calls. Collins, entry for purpose who the rent, was behind in of appeal. then court denied argued the motion and held a bench regarding the $2,100.00 trial in August then, of 1999. (equal By to three the months' rent abatement), remediated, had been but had claimеd Marathon remained vacant for the majority had later promised to time pay him in the form since departure. Collins' trial, Following of a "knock off" of the price and parties the proposed submitted partial findings of reimbursement for the improve- facts and conclusions of law. The court ments. adopted proposal verbatim2 and 14, 1992, On January Marathon filed a $75,150.78 entered a judgment in favor of complaint ejectment for against Collins, $1,800.00 Collins and a judgment in favor alleging that he was delinquent in rentаl of Marathon. Marathon filed a motion to payments, had lease, breached the and was correct errors which the court failed unlawfully of Marathon's real to rule thirty within days. estate. January On the Elwood fire representatives chief and from the El Discussion and Decision wood Water Utility Department, I. Statute of Frauds Indiana Gas Company, and Indiana De partment of Emvironmental Management Marathon challenges the court's finding ("IDEM") evicted Collins from the proper that the statute of frauds aрply does not Later, prepares Collins' wife was added findings such as he or she should counter- claimant. great take care to insure findings sufficient proper to form a factual basis for "[There is no error where the trial court the ultimate conclusions of the trial court. Id. requests parties proposed to submit find- "Also, the trial court should remember that ings adopts and then party's verbatim one signs party's when one findings, it is ulti- proposed findings over those of par- the other mately responsible for their сorrectness." Id. Maloblocki, ty." Maloblocki v. However, (Ind.Ct.App.1995). when a those wide open and which another's asserts case. present Per litigation." flood-gates ubiquitous entire encompassed lease written (Ind. 289, 292 Owens, N.E.2d v. kins parties between agreement (citation quota internal Ct.App.1999) As performance. partial no there Nevertheless, omitted). oral award of marks tion argues such, Marathon prop real conveyance contracts improper. to Collins damages Dubois vоidable, void.3 See erty are the two-tiered forth recently set We Blessinger, Co. County Machine a trial when apply of review standard App. Ind and conclu- fact findings makes court (1971). thereon: sions excepted may be contracts Oral whether determine firstWe doctrine the statute and then fact findings supports part as a qualify To part performance. judg- support findings those whether certain contract the oral performance set aside review, do not ment. On present must be cireumstances judgment or court's trial on, be founded must circumstances these finding is A clearly erroncous. unless to, agreement. oral and referable is no evi- there erroncous not sufficient alone is payment Partial reasonably drawn inferences dence re- performance partial constitute *5 judgment it. support to therefrom frauds. of the statute within moval from unsup- it is when erroneous is held sufficient generally Cireumstances and con- fact findings of by the ported perfor- part the doctrine invoke to findings. the on entered clusions statute exception an mance as determination, neither we making our fol- of the combination are some frauds witness judge nor evidence reweigh price purchase of the payment lowing: the only consider will credibility, but last- thereof; and possession; part or a inferences reasonable and the on improvements and valuable judgment. the support which therefrom land. any on judgment the may affirm We "the to held fast have courts Indiana if supported theory legal stat- the behind the rationale validity of the all of theory is consistent that strictly "rather frauds," have and ute in- and the fact findings of court's trial of a combina- proof requiring to adhered the drawn reasonably ferences cireum- aforementioned [the tion of a deci- such deem if we findings[,] and must be proof required This stances]." the evidence light in prudent sion and definite." "clear arguments the at trial presented (citations omit- appeal. Perkins,
briefed at 292 N.E.2d 721 ted). Bertholet, N.E.2d T25 v. Bertholet (citatiоns and internal unequivocal,
(Ind.Ct.App.2000)
must be
Possession
omitted).
possession
marks
quotation
must be shown
consequence
upon was
relied
requires
The statute
conditions.
to its
pursuant
contract
to
of real
for the sale
contracts
Inp.Copm
Summerlot,
408 N.E.2d
v.
§ 32-2-1-1.
Summeriot
See
See
writing.
inbe
Guck
see also
(Ind.Ct.App.1980);
829
fraud
preclude
intended
is
"The statute
Shank,
37
Ind.App.
enberger
arise
probably
claims
ulent
(1941).
must
"The
against
pitted
is
word
person's
one
as to
is void
effect,
a contract
parties;
legal
so thаt
"of no
is
void contract
3. A
party
as to the
void
wrongdoer but not
at all."
existence
really
contract
no
there is
Dictionary
treat it as
(abridged
7th
elects
wronged,
unless
Law
Brack's
af-
Id.
"can be
ed.1999).
void."
contract
voidable
A
one of
option at the
rejected
firmed
yielded
be
by one party
accepted
Regarding improvements,
finding
other,
as
performance
done in
provides:
"That Collins would not have
Schroeder,
contract."
spent the Seventeen Thousand Nine Hun
Lux v.
1114, 1118 (Ind.Ct.App.1995), trаns. de- dred Sixty-Six Dollars and Sixty-Five
mied.
($17, 966.65)
Cents
on repairs and im
provements of the Station for
eighteen
an
Only "valuable and lasting" im
(18) month tenancy if he had
expected
provements that are
founded
the oral
purchase
the Station."
repeated
contract are sufficient to take an oral con
this assertion more than once during testi
tract out of the statute of frauds. Dubois mony. Collins had been told that he would
County,
formation of expense at the charged amount, to be or substantial nature permanent party. complaining the tract. disputed the not done or prem- possess contrast, did Collins Craw Homecenter Country Town & of im- making substantial bеgin ises Woods, Indiana, Inc. fordsville, and Jansen he until provements (Ind.Ct.App.2000), after regarding agreement oral an reached denied. trams. purchase. following made The court Fraud II. Constructive conclusions: [Collins] early1990, find- time that Thatsome contends 1. next Marathon construc- regarding conclusions ings vacant about [Marathon] contacted Specifi- clearly erroneous. tive fraud (Collins' testimony). ... Station Service first made the Collins it notes cally, versa. than vice rather with Jansen contact was сon- Collins subsequently That 4. utilities contends also Marathon Mar- [Jansen], employee an by tacted Collins until after not disconnected were with negotiations handled who athon addition, constructively evicted. (Collins' Marathon. on behalf Collins ("Lee"), the for- Lee Jack out that points testimony). (1) that site, stated tenant mer that existed leaks all three fixed (2) negotiations prior that he That 20. premises, occupied the he a problem Collins, aware Jansen (8) and that when gas, smelled never site at the Station any soil mention contaminated Collins, did not visited (Collins' Q). the find- Exhibit challenges problems. soil. of contaminated aware that it was ref- included initially That Jansen rec- contends Finally, in Mar- contamination the soil erence statements any affirmative is devoid ord (Collins' memo internal athon's form premises condition about information R), but Exhibit condition made about promises the form deleted subsequently premises. S8). (Collins' Exhibit not advise did That Jansen fraud arises "Constructive *7 at the problem contamination the soil conduсt from a course law operation of and Collins negotiation, their time law, secure by would which, if sanctioned pur- agreed have leased not irrespective advantage, an unconscionable advised if had been the Station chase in actual or evidence the existence (Collins' testimony). this situation Grimm, Stoll to defraud." tent (inter (Ind.Ct.App.1997) omitted). The ele marks quotation nal January about That on or fraud are: of constructive ments Station, at evicted rela- of the (1) by virtue existing duty a water, electricity sewage, time the parties; tionship from the between disconnected were all gas (Collins' testimony). the mak- duty by (2) Station. a violation misrepresenta- material deceptive ing of ob- yet not has That Marathon remain- existing facts or past or tions of to re- from [IDEM] permission tained exists; speak duty to when the ing silent Station, and to the sewage connect complaining period (3) thereon tenant-for only reliance found one has party; Sta- (2) rent weeks-to two of about (Cramer testi- January 1992. party as (4) complaining tion since injury to reliance; and mony). of that result proximate
26. That during June IDEM re- attempt to imply that there was no con fused to allow Marathon to lease or use problem. However, tamination IDEM dis Station, because IDEM claimed the agreed and would permit not the use of the property was "too contaminated/hazard- contaminated land until Marathon finally (Collings ous to any purpose." lease for remediated Fourth, the site. Marathon's T). Exhibit internal doсuments testimony from its current real employee estate do sup port its claim that Jansen was unaware of 2. That because Marathon knew Col- Fifth, contamination. although Mara lins intended to property, thon is correct that the record does not spending several thousand dol- indicate affirmative misrepresentations on repairs, lars on duty had a part, its omissions can be the basis of advise Collins petroleum of the contami- constructive fraud claims. Darst v. nation property. on thе Co., IllinoisFarmers Ins. 3. That Marathon's failure to disclose ("[IJn 582 (Ind.Ct.App.1999) order to es tablish misleading, fraud], [constructive and Collins relied to complain detriment on misrepresentation must con- have had a reasonable right cerning the to rely upon condition of the property the statements made or omit ted."), and its fitness for Collins' intended use. trans. In denied. summary, Mara
thon has not shown that the constructive fraud findings and conclusions were clearly 6. That as a result of Marathon's fail- erroneous. disclose, ure to whiсh constitutes Con- Fraud,
structive intentional, even if not Damages III. Collins incurred damages in the sum of Fifty-Seven Thousand One Hundred Finally, disputes Eighty-Three Dollars and Eighty-Three damages. particular, alleges ($57,188.83) Cents for which he is enti- damages based plan the floor costs tled to be reimbursed. and lost pure sales were speculation. Also, it claims that the required lease We address each of Mara roof, furnace, Collins furnish the new First, thon's assertions turn. while driveway, therefore making reimburse finding 4 states that Collins was contacted ment improper. addition, Jansen, finding 1 clarifies that Jansen claims that the court did any not make was returning event, In any call. findings concerning the damages claimed we do not see and Marathon does not by Marathon. We disagree on all counts. explain supports how this fact its challenge Generally, the computation constructive damages fraud conclusion. See- *8 is a matter within ond, the sound discretion while the utilities were not discon nected until the trial shortly after court. A eject damage Collins was award will IDEM, ed from the not be property, upon appeal reversed the fire unless it is chief, utility and the based on companies precluded insufficient evidence or is con- Collins from staying premises. trary on to In law. determining whether Again, we do not see and Marathon does the award seope is within the of the evidence, not demonstrate the relevance of may this dis not reweigh the evi- Third, tinction. presume judge Mara dence or credibility of wit- thon's reference to Lee's statements is an nesses. review,
4. Unfortunately for our Jansen did ord primarily consists testimony, of Collins' documents, not testify, though apparently he lived in the the current Marathon real estate Thus, employee's during area iestimony, the time of trial. deposition. and Lee's the rec- 482 $17,966.95 repair Remodeling of Station and Berna, 651 N.E.2d v. Inc. Carriage,
Haas $230.00 Advertising Jackets (citations omit- (Ind.Ct.App.1995) 284, 289 $11,400.00 of vehicles Wholesale $45,783.82 Plan Deficiency Floor on ted). $75,380.77 may Total damages "Consequential Collins awarded However, сlaim then of contract on a breach be awarded oral contract $17,966.95on the flows damages loss non-breaching party's fraud constructive $57,188.83 on the breach from the and probably naturally and $75,150.78. claim, total of parties when for a contemplated and was v. Scan Johnson made." the contract Collins wished reveals The evidence (Ind. Inc., 31 N.E.2d Assocs., TIZ because dia acquire to v. Hadley rule of 1999). car follows the used "This for location ideal it was an (1854), and Rep. 145 Baxendale, Eng. 156 Hence, he operate. to he wished business to damages consequential limits entered property, generally to sought losses." economic to do reasonably foreseeable with Jansen agreement an oral into (as include may damages Marathon's per Consequential so, agreed Id. then and is suf evidence under temporarily providing profits,5 to rent request) lost in its fact to estimate the trier outlined allow ficient to conditions Col- degree purchase, his anticipation of a reаsonable with lease. amount and repair $17,966.95 Pork for the expended See Clark's lins and exactness. certainty addition, property. N.E.2d 563 of the Sys., renovation Livestock v. Sand Farms used his jackets with for spent A factfinder he (Ind.Ct.App.1990). $230.00 telephone num- basis the mere on address damages car business's award may not plan into a floor He entered on them. Bu ber Farm speculation. conjecture invento- provide to with Star arrangement Derecach, N.E.2d v. Ins. Co. reau Mut. ry. demied. trans. (Ind.Ct.App.1983), 537, 540 proved be need not However, profits lost prop- from the ejected When Id. at certainty. nearby mathematical ato his business he moved erty, there where uncertain are not busi- profits His Lost location. desirable far less but that, not sufficient while vehicles testimony failed, him with 18-22 leaving is ness doubt, is sufficient beyond pay, Collins the amount bills to put Having in stock. fair and inventory. make a He factfinder sell quickly to enable foreed dam total of proper at a as to valued finding cars sold four reasonable Sales, $16,000.00, two cars Inc. sold $24,700.00 Alderman Ford for Jerry ages. took $11,000.00 $8,400.00, N.E.2d for Ind.App. at valued Bailey, 154 to an auto inventory of his the remainder (1972). "Generally, damages liquidation, Despite the natural are auction. those which fraud plan. floor $45,883.82 on his short act com of the was still consequences proximate home on his Thus, mortgage took out Ryan v. Great-West Estate plained of." (Ind. Star. repaid Co., Assur. Life App.1987). Ct. aforementioned Using the damages as record, down we break damages down Collins' broke The court follоws: as follows: $17,966.95 repair of Station Remodeling and 230.00
Advertising Jackets - - = $8,400) ($11,000 $16,000) ($24,700 + $11,300 of vehicles Wholesale $45,833.82 Plan Deficiency Floor *9 $75,830.77 Total in Marathon's is to Collins awarded ages in the dam- see
Thus,
only
error
car,
profits in
lost
he did not seek
yet,
per
location,
been
had
At the Marathon
5.
$1,200.00
counterclaim.
approximately
realizing
profit of
a
is,
That
appears
favor.
to have
intentional,
instead of
such would consti-
been entitled to an additional
tute constructive
$179.99
fraud for which damages
($75,830.T7-$75,150.78). Howevеr,
may
we are
be awarded.
not inclined to alter Collins' award since he
However, my reading of Darst v. Illi
appeal
did not
adequacy
of the award.
(1999)
nois Farmers Insurance Co.
Ind.
Indeed,
Collins submitted the
App.,
upon
relied
by the
conclusion that
adopted,
thus
majority,
me
convinces
that the concept of
creating
minor discrepancy.
negligent misrepresentation is very limited
We are
unpersuaded by
likewise
and will not be
beyond
extended
the hold
argument
regarding the damages
ing Eby
Division,
v. York
Borg-Warner
awarded
pro
to Marathon.
Finding
(1983) Ind.App.,
vides: Eby involved an misrepre affirmative eviction, That at the time of Collins was sentation, but negligent misrepresenta indebted to in the sum of concept, tion opposed as to an intentional Four Thousand Nine Hundred Dollars misrepresentation, was extended to an em ($4,900.00) rent, unpaid and Mara- ployer-employee relationship. Darst did in thon was indebted to Collins in the sum that, deed indicate as in FWby,we may of Three Thousand One Hundred Dol- apply a negligent misreprеsentation princi (One ($3,100.00) lars Thousand Dollars ple beyond a setting involving "professional," ($1,000.00)for reimbursement on siding but it clearly stated: "... we 6 (8) abatement) and three months rent decline to extend the [constructive fraud] for a net of One Thousand Eight Hun- application tort's beyond specific facts ($1,800.00) dred Dollars due Marathon Eby." 716 N.E.2d at this regard from Collins. it should Eby be noted that did not involve This finding was unambiguous, amply sup- an omission to disclose duty where a ported evidence, and not disclose existed. erroneous. I would hold that Cоnclusion 6 is Affirmed. error, to the extent permits that it recov- ery for an unintentional failure to disclose NAJAM, J., concurs. facts, under these but that the judgment is SULLIVAN, J., concurs and concurs supported permits evidence which separate result with opinion. conclusion that the failure to disclose the soil contamination here was in fact inten- SULLIVAN, Judge, concurring and con- tional. curring in result I fully concur regard to Parts I and
III. I concur in result as to Part IL. respect latter,
With to the I am troubled by the trial court's Conclusion 6 in connec-
tion with the majority's upon reliancе legal valid principle that constructive fraud may be upon founded omissions as well as affirmative misrepresentations.
Conclusion 6 states that even if Marathon's
failure to disclose were merely negligent,
Eby
acknowledged
apply-
court
"professional
that in
eate
opinion (malprac-
between
principle
giving
profession-
of a
tice)
simple misrepresentations
[and]
made in
opinion,
application
al
might
well create
professional
the course of one's
activities."
attempting
substantial confusion in
to delin-