Biggs v. Marsh

Citation446 N.E.2d 977
Decision Date22 March 1983
Docket NumberNo. 3-981A237,3-981A237
PartiesSteven P. BIGGS and Barbara L. Biggs, Plaintiffs-Appellants, v. Arlo A. MARSH, Jr., Nancy L. Marsh, Roth, Wehrly, Heiny, Inc., Tammy Lamle, Nancy McNeely and Graber Realty, Inc., Defendants-Appellees.
CourtCourt of Appeals of Indiana

Mark S. Pantello, Sowers & Benson, Fort Wayne, for plaintiffs-appellants.

Craig R. Finlayson, Higgins, Swift & Finlayson, Fort Wayne, for appellee Graber Realty, Inc.

Thomas M. Gallmeyer, F.L. Dennis Logan, Rothberg, Gallmeyer, Fruechtenicht & Logan, Fort Wayne, for appellee Arlo A. Marsh, Jr.

William L. Sweet, Jr., Barrett, Barrett & McNagny, Fort Wayne, for appellee Roth, Wehrly, Heiny, Inc. GARRARD, Judge.

This lawsuit arose out of the efforts of Steven and Barbara Biggs (the plaintiffs) to purchase a residence owned by Arlo Marsh, Jr. and Nancy Marsh, husband and wife (the owners) as tenants by the entireties.

In search for a house in 1977 the plaintiffs contacted Tammy Lamle, a sales representative of Roth, Wehrly, Heiny, Inc., realtors. (Unless the context requires otherwise, we hereafter refer to Lamle and the corporation together as "realtor no. 1.") As a result the plaintiffs were directed to the owners' house.

On March 29 the plaintiffs executed an "Agreement to Purchase" directed to the owners offering $65,000 for the house. 1 They gave realtor no. 1 a check for $3,250 as an earnest money deposit. On March 30 Mr. Marsh executed this agreement. However, despite the fact that the property was owned as a tenancy by the entirety, Mrs. Marsh did not then, or at any subsequent time, sign the agreement.

Also, on March 30, Nancy McNeely, a sales representative for Graber Realty, Inc. (hereafter collectively referred to as "realtor no. 2") approached the owners about selling the house to a different party at a higher price. This sale was eventually effected.

According to plaintiffs' statements in the record in answer to interrogatories on March 31, Ms. Lamle told them that the owners did not intend to sell to them, but later that same day a vice-president of realtor no. 1 informed them that Mr. Marsh would honor the contract. The plaintiffs then advertised their own home for sale. On April 11 Mr. Marsh assertedly contacted the plaintiffs, apologized for the inconvenience and indicated that he was still willing to sell to them, and on April 13 the plaintiffs entered a contract to sell their existing home. Subsequently, the owners indicated they would not sell to the plaintiffs. At this time they tendered back the plaintiffs' earnest money check, but the plaintiffs refused it.

On April 21, 1977 the plaintiffs commenced suit against the owners seeking to enjoin the third party sale and to secure specific performance of their "Agreement to Purchase." On May 26, 1977 the court ruled against the plaintiffs on all counts, and on June 8 the owners sold their house to another buyer for $68,900. No appeal was taken in that case.

Then in December 1977, the plaintiffs commenced the lawsuit that is the source of this appeal. In essence this lawsuit sought money damages in three counts. Count 1 against the owners asserted a claim based upon Mr. Marsh's alleged misrepresentations about sale to the plaintiffs. Count 2 alleged negligence on the part of realtor no. 1 for failing to secure Mrs. Marsh's signature to the "Agreement to Purchase." Count 3 named realtor no. 2 as defendants and alleged tortious interference with contract or the formation of a contract. In addition punitive damages were sought against all defendants.

Subsequently, each of the defendants moved for summary judgment. On April 15, 1980 the court granted summary judgment in favor of owner Nancy Marsh stating that the agency issues upon which the claim depended were barred by res judicata as a result of the prior suit. At that time the court denied summary judgments to the other defendants.

The case was later assigned to a different judge pursuant to plaintiffs' motion, and the remaining parties renewed their motions for summary judgment. On March 31, 1981, the judge granted summary judgment in favor of all remaining defendants and the plaintiffs initiated this appeal.

Before addressing the principal contentions concerning these summary judgments we address two preliminary assertions made by the plaintiffs.

First it is claimed that we should reverse as to appellees Lamle and McNeely (the involved employees of the two realtors) because of their failure to file appellate briefs. We note that both employers did file timely briefs and that they address the issues and contentions of liability applicable to themselves and their respective employees. Moreover, the rule in question demands a prima facie showing of error, and we have discretion in its invocation. Contech Architects & Engineers v. Courshon (1979), Ind.App., 387 N.E.2d 464, 473. In this case we will not reverse merely for the failure to file briefs.

Secondly, plaintiffs point out that the summary judgments granted, except the one for Nancy Marsh, were reassertions of previously denied motions. Pointing to Indiana Rules of Procedure, Trial Rule 53.3 2 concerning repetitive motions, the plaintiffs urge that when these second motions were not ruled upon within five (5) days after filing they were automatically deemed denied. From this position they then assert that the court was bound to enforce TR 53.3 by denying the second motions and that it erred in failing to do so. We disagree. The plaintiffs have misperceived the thrust of the rule. It is designed to prevent delay through the repetitive filing of motions. See W. Harvey, Indiana Practice, vol. 3, TR 53.3 (1982 Supp. p. 91).

The trial court has, however, inherent power to reconsider any of its previous rulings so long as the action remains in fieri. McLaughlin v. American Oil Co. (1979), Ind.App., 391 N.E.2d 864; Indiana Suburban Sewers, Inc. v. Hanson (1975), 166 Ind.App. 165, 334 N.E.2d 720. Accordingly, no error resulted from the court ruling on the motions for summary judgment even though the five day period referred to in TR 53.3 had expired.

We turn then to the propriety of granting summary judgment to the various groups of defendants.

Because each defendant/appellee relies at least in part on the doctrine of res judicata to support the grant of summary judgment, we begin by reviewing the relevant law in this state. It is generally recognized that there are four elements of res judicata:

"The basic elements of the doctrine of res judicata are: 1) the former judgment must have been rendered by a court of competent jurisdiction; 2) the matter now in issue was, or might have been, determined in the former suit; 3) the particular controversy adjudicated in the former action must have been between parties to the present suit or their privies, and 4) the judgment in the former suit must have been rendered on the merits."

Glass v. Continental Assurance Co. (1981), Ind.App., 415 N.E.2d 126, 128. See also Indiana Univ. v. Indiana Bonding & Surety (1981), Ind.App., 416 N.E.2d 1275, 1283; Middlekamp v. Hanewich (1977), 173 Ind.App. 571, 364 N.E.2d 1024, 1033. There is no contention in the present litigation disputing the jurisdiction of the court in the suit for injunction and specific performance or denying that the judgment entered therein was on the merits.

Res judicata is generally described as consisting of two branches, claim preclusion and issue preclusion. When claim preclusion applies every question which was within the issues and might have been proved will be presumed to have been litigated and no further action between the parties, or their privies, will be permitted as to any such issue. Town of Flora v. Indiana Service Corp. (1944), 222 Ind. 253, 53 N.E.2d 161.

Issue preclusion arises where the claims are not the same, but some fact or question has been determined in the former suit and is again put in issue in a subsequent suit between the same parties or their privies. In such cases the former adjudication of that fact, if properly presented and relied upon, will be conclusive on the parties. Town of Flora, supra. See also Peterson v. Culver Educational Foundation (1980), Ind.App., 402 N.E.2d 448; State, Indiana State Hwy. Comm. v. Speidel (1979), Ind.App., 392 N.E.2d 1172; Illinois C.G.R. Co. v. Parks (1979), Ind.App., 390 N.E.2d 1078.

In claim preclusion, where the other requirements are met, the critical question is whether the present claim was within the issues of the first; whether the claim represents an attempt to split a cause of action (or defense). It has generally been said that the test for making this determination is whether identical evidence will support the issues involved in both actions. Speidel, 392 N.E.2d at 1175. Compare Fairwood Bluffs Conservancy Dist. v. Imel (1970), 146 Ind.App. 352, 255 N.E.2d 674, 681.

ARLO A. MARSH 3

We find that plaintiffs' present suit is not barred by the doctrine of claim preclusion. Plaintiffs' first suit against the owners sought injunctive relief and specific performance based upon contract. 4 The second claim appears to assert fraudulent misrepresentation. The evidence to establish the material elements of a fraudulent misrepresentation of an existing fact reasonably relied upon by the plaintiffs to their detriment 5 differs substantially from the evidence necessary to sustain the contract claim. Union Cent. Life Ins. Co. v. Schidler (1892), 130 Ind. 214, 29 N.E. 1071.

Moreover, while we do not dispute Marsh's assertion that the first suit did establish between the plaintiffs and the owners, as a matter of issue preclusion, that the agreement signed only by Mr. Marsh was not a binding contract and that Mr. Marsh was not acting as the agent of Mrs. Marsh, those issues as we have pointed out are not determinative of a claim for fraud.

From the materials on file before the trial court we are unable to conclude that a claim of fraud has been sufficiently...

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