*1 21 improperly nor is it has not been offered explore whether General so we need not Consequently, al- entirely merit. without groundless. was also Collections' action sympathetic to Decker's ar- we are clear- were not The trial court's conclusions his invitation to further gument, Collections we decline ly erroneous. General We, there- punish error. Collections. failed to demonstrate General fore, award of fees. affirm the trial court's Affirmed. ISSUE TWO SULLIVAN, JJ., HOFFMAN and moved for an Decker has also concur. attorney appellate fees. Our
award of recently that: supreme court observed Appellate Procedure do
The Rules of express any standard to determine appellate damages appropri-
whether 15(G) simply provides: AR
ate. appeal affirms the
If the court on judgment, damages may be assessed SALMON, Billy Ray Realty First d/b/a appellee exceeding ten favor of the Co., Plaintiff-Appellant, (10%) percent judgment, v. cases money judgments, other court; and the PEREZ, discretion Mary I. remand such cause for exe- court shall ecution. Realty, Hills O'Brown general, discretionary award of dam Defendant-Appellees. proper
ages recognized has been when appeal permeated with meritless No. 03A01-8810-CV-331. ness, faith, harassment, frivolity, bad Indiana, Appeals Court vexatiousness, purpose delay. or First District. Briggs County v. Bank & Trust Clinton (1983), Ind.App., 452 N.E.2d 19,1989. Co. Oct. Guardianship 1014. See also In re Posey Lofayette Bank & Trust Co. Ind., 155;
(1987), 512 N.E.2d Marshall v. (1974), Ind.
Reeves
828; Ind. Annee v. State (on rehearing);
Watson
1156; Taylor Const. Co. Sandock 882;
(1981), Ind.App., 416 N.E.2d Vando (1909), 44
lia Railroad Co. v. Walsh
Ind.App.
Orr v. Turco
at 152. already that General Col-
We have found unreasonable,
lections' claim at trial was appeal not follow that an
but it does attorney fees will auto-
an award of trial
matically give appellate an award of rise to question had fees. statute opin- fully explored published in a
not been was initiated. Gener-
ion when brief, persuasive,
al Collections' while not *2 Roberts, Nashville, Mary I. T.
James Perez. Woods, Nashville, for Hills
David T. Realty. O'Brown BAKER, Judge.
STATEMENT OF THE CASE Salmon, Billy Ray Plaintiff-appellant, (Salmon), appeals Realty First Co. d/b/a from the denial of his claims for broker- damages arising age fee and incidental pursu- from the aborted sale of real estate Mary I. purchase agreement ant to a with (Perez). Perez We affirm.
STATEMENT OF THE FACTS Salmon, broker, a licensed real estate listing agent for real estate owned (the proper- the estate of E. Allen Judith ty). listing Under the terms of the con- tract, Salmon was to receive a commission upon procuring buyer for the April Perez made a written purchase offer and ten- $1,000 deposit money. dered a as earnest purchase agreement up by was drawn (Hills O'Brown), Realty Hills O'Brown representative in ez's the transaction. The purchase agreement contained the follow- ing regarding conveyance evidence of title: closing, Property At shall be con- veyed by Warranty to Purchaser Deed in now, ordinary the same condition as it is excepted, wear and tear to all covenants, easements, restrictions rights way applicable of record and to laws, zoning health and but free and clear all other liens and encumbrances except stated herein. of a title, merchantable Purchaser shall be expense prior furnished at Seller's Closing an Owner's insurance binder in purchase price. amount Should additional time be needed to cor- defects, rect extensions given. of time shall be Barr, Nashville, M. plaintiff- Thomas at 270. Because of Perez's desire Record appellant. loan, mortgage to obtain an out-of-state at 217. Salm- correct the defect." Record delayed. Accordingly, closing date was money de- paid an additional earnest appeals. Perez on now $1,000 bargain open posit keep the ISSUES
during delay. *3 by appeal: presented Five issues for Upon receiving a loan commitment evi- I. Whether there was sufficient mortgage, ordered the title Perez's Salmon conclude that the oil and dence to required by purchase insurance as gas lease amounted to an eneum- 11, 1986, day agreement. August On rendering prop- title to brance closing, Salmon re- before the scheduled erty unmerchantable. copy the title commitment. A of the ceived delivered to Hills trial court erred in title commitment was II. Whether the gas determining that Salmon was not O'Brown at which time an oil and lease brokerage for entitled to his fee to exist on the was discovered the defect in the failure to correct directly None of the involved closing any knowledge property's had of the oil and title.
gas
prior
August
1986.
lease
III. Whether
the trial court erred
denying
admissibility
of evi-
Perez went
to Hills O'Brown on the
concerning
dence
closing
morning August
1986. The
removing
oil and
leases.
place that afternoon.
was scheduled to take
IV. Whether
the trial court erred
O'Brown,
Perez and the owner of Hills
denying
admissibility
of Salm-
(Russo), discussed the exist-
Frank Russo
concerning advertis-
on's evidence
ex-
ence of the oil and
lease. Russo
expenses.
ing
plained to Perez that the lease could be
entitled
V. Whether Perez is
to attor-
expense. Russo
removed at the seller's
proposed that
ney fees.
from the seller's share
$150
purchase price
be set aside
escrow
AND DECISION
DISCUSSION
to cover the cost of
the lease.
agreed
arrangement.
to this
Salmon
I: Marketability
ISSUE
Title
ez, however,
arrange-
refused
escrow
appeals
negative judg
from a
Salmon
Rather,
ment.
she elected to terminate
successful,
ment. To be
he must establish
deal.
judgment
contrary
to law.
that
August
Perez's
Systems,
Inc.
v. Indiana Waste
Sherk
requested Salmon return the earnest mon-
(1986), Ind.App., 495 N.E.2d
trans.
money
ey deposit. The earnest
was
nega
aside a
This court will set
denied.
Perez,
returned to
but
divided between
contrary
only
to law
when
judgment
tive
as
and the heirs of Judith Allen as
without conflict and all rea
the evidence is
listing
provided in the
contract. Salmon's
drawn therefrom
sonable inferences
be
brought
He
this action
share totaled $500.
and the trial court
lead to but one result
commission,
seeking the remainder of his
F.
has reached a different one. Charles
expenses
incurred
reimbursement
D.M.D.,
(1987),
Broughton,
P.C. v. Riehle
relisting
property, and interest.
Ind.App.,
1133. We will not
512 N.E.2d
trial court found that Salmon was not enti-
judge the
reweigh the evidence or
eredibili
brokerage
prop-
fee
tled to his
because
ty
Wright
of the witnesses. Maddox v.
title at the
erty
did not have merchantable
(1986),
Ind.App.,
used abandoned, having apparently been able title." 92 C.J.S. Vendor & Purchaser subject property rendering on the existed (1955). Although recent on case law argues, its title unmarketable. § sparse, prevailing view agree, removing we the lease is a "that a marketable title is one which is free simple procedure. the lease is re Until expose from doubt and will not moved, however, the title remains unmar party who holds it to the hazards of recognize ketable. We that Salmon was in litigation." Stephens Ind. Staley fact successful the lease App., trans. denied. filing signed by an affidavit the heirs of stating the estate the lease had give Oil and leases the lessee a see- developed paid been and rents had not been ondary, non-possessory interest the real period exceeding year. for a The affi estate. These leases are often abandoned *5 filed, however, davit not until fifteen lay many years. and dormant for This closing. months after the scheduled Ac dormancy uncertainty creates as to wheth- cordingly, closing the title at the time of record, er the which exists as of has bargained good was defective. Perez for purposes If steps served the of the lessee. title and bound to take the doubt are not taken to remove the lease from the title, ful even it was later cleared. books, impaired the owner's title is because Staley, supra. agree We with the trial possibility may of the that the lessee later court that the title was rendered unmer- rejuvenate return to his interest under the chantable due to the existence of the oil reappearance expos- lease. The of a lessee lease. possibility es the owner the litigation. to Although passage may the of time indicate Curing ISSUE II: Title Defect unlikely, such action is containing "titles outstanding usually such interests are not Salmon further contends that even regarded BASYE, as marketable." P. if the oil and in lease was a defect the TITLES, (1970). title, CLEARING LAND at Perez was the bound terms of the response problem, purchase agreement to this Indiana give the to him a reason legislature passed IND.CODE 832-5-8- able time to cure the defect. Salmon statute, repudiated Under this owners are able to claims that Perez the contract clear their title based on their affidavit by refusing accept arrange to an escrow ment, deal, substantiating calling the fact that the demanding lease has off the year. money been abandoned for more than the return of her earnest without allowing first him a time to reasonable cure The ease which abandoned oil and argues the defect. Salmon Perez's actions sup leases can be removed from land titles performance obligations made of his under ports underlying policy of the Indiana impossible thereby relieving the contract Title Act. Marketable IND.CODE 82-1- him duty of his contractual to correct the purpose 5-1 to 82-1-5-10. The of the Act defect. Salmon misconstrues terms of simplify to facilitate land title trans agreement. by allowing people rely actions to on a recovery The trial court denied Salmon record chain of title. IND.CODE 82-1-5- titles, however, present any 10. Marketable record he failed because to evidence rights subject of lessees. The Act any attempt that he made to correct applied any closing. to agree will not "be bar lessee or his defect at We with the trial rights any interpretation applicable successor of his in and to con- IND.CODE 82-1-5-6. Accord provision. lease[.J provision gave tract leases, ingly, oil and which render seller, land Salmon, represented by option an to deal. the Perez real estate peri- closing postpone the to attorney might have been able What Ac- the title defect. od of time to correct change the fact that the title Salmon, discovering the de- cordingly, do does fect, option postpone closing closing. The had the at the time was defective its discretion court did not abuse trial the defect. This he did not do. and correct Instead, testimony as irrel proceed closing excluding attorney's attempted he speculative. evant defective title. Perez was not with the al- accept the defective bound Advertising Admissibility IV: ISSUE any evidence low additional time. Absent Expenses requested postpone- to indicate Salmon erred in claims the trial court defect, Perez was re- ment to correct advertising excluding testimony regarding obligation lieved of contract. relisting prop- expenses he incurred in correctly The trial court found she was following closing. In his erty the aborted money. entitled to the return of her earnest brief, the non- Salmon asserts Admissibility ISSUE III: Affidavit breaching party, he recover is entitled to argues if the lease con breaching party. expenses from the these title, then stitutes an encumbrance on already Because have established that we can re the ease which such leases be breaching party, we Perez was not moved a central issue. Accord becomes explore need not this issue. ingly, argues, he al he should have been Attorney ISSUE V: Fees independent lowed to evidence from submit Perez asserts for the first time on attorney experienced appeal that she is entitled to fees leases. *6 84-1-82-1. Perez con IND.CODE prove made an offer to that based on appeal inappropriate tends this because: attorney's prior experience with the similar (1) (2) unwilling litigant; an she is lessee, involving leases the same the attor judgment relatively amount of ney could have effectuated the removal of ($2,000); (8) legal argu small Salmon's days
the lease within 80 from the date of generally inadequate. ments were Accord closing. Upon sustaining objection Perez's frivolous, ingly, argues, she this testimony spec that the was irrelevant and groundless and unreasonable. ulative, the trial court refused to admit the We note first that the of IND. testimony. assigns as error. apply awarding 34-1-382-1 CODE correctly points out that the stan court, appellate fees the trial not an evaluating relevancy dard for of evi Appellate attorney court. courts award dence is whether the offered evidence has a by instituting damages against ap- fees an logical tendency prove a material fact. Procedure, pellant pursuant to Ind. Rules County v. Favourite Steuben Bd. Nonetheless, 15(G). Appellate Rule Ind.App., Zoning Appeals provision. ez's claim fails under either reviewing N.E.2d trans. denied. Perez is not entitled to fees for action, trial we will reverse being unwilling litigant. We note that only discretion if conclusion abuse of its defendants, litigants, especially most clearly against logic and effect of Furthermore, unwilling. the size of the the facts before it. CIGNA-INA/Aetna judgment bearing trial court's has no on (1985), Ind.App., Hagerman-Shambaugh right appeal. to institute this Fi- Salmon's trans. denied. The facts nally, presented cogent legal the trial court in this case concerned before arguments with sufficient citations to the property involved in a real estate authority. record and to relevant We find par deal which Salmon Perez were arguments adequate present- his were ticipants. testimony offered in the good ed in faith. Perez's claim for attor- attorney's affidavit did not concern the ney fees is denied. Rather, subject property. it concerned Judgment success leases on affirmed.
ROBERTSON, J., concurs.
SULLIVAN, J., to Issues concurs as
I, II, V, concurs in result IV
as to Issue III for the reason
exclusion of the relevant affidavit was
harmless error. WITTWER, Appellant
Alwin L. Below),
(Respondent WITTWER, Appellee
Dianna K.
(Petitioner Below).
No. 17A03-8902-CV-29. Indiana, Appeals
Court of Herr, Third District. McNagny, Thomas A. Barrett & Wayne, appellant. Fort Oct. 1989.
HOFFMAN, Judge. Respondent-appellant Alwin L. Wittwer appeals judgment the trial court's of child support. *7 facts relevant disclose were divorced on Novem- Petitioner-appellee Dianna K.
ber custody of the three Wittwer awarded Appellant minor children. was ordered $75.00,per support pay week child expenses. There the children's medical pay- no in the decree for were expenses. ment of educational son, September appellant's Wittwer, Navy. James entered U.S. years fall He was 19 old. Later he discharged sustaining injury. after James returned home to live with his moth- er, appellee. court, August Mrs. request,
Wittwer's increased child per week. The court deferred $90.00 ruling request to allo- on Mrs. Wittwer's responsibility payment cate the $9,537.15 expenses in medical incurred injury. James as a result of his