Blaising v. Mills, No. 3-1175A251

Docket NºNo. 3-1175A251
Citation176 Ind.App. 141, 99 A.L.R.3d 1238, 374 N.E.2d 1166
Case DateApril 12, 1978
CourtCourt of Appeals of Indiana

Page 1166

374 N.E.2d 1166
176 Ind.App. 141, 99 A.L.R.3d 1238
L. Michael BLAISING, Defendant-Appellant,
v.
Kay Lynn MILLS, Plaintiff-Appellee.
No. 3-1175A251.
Court of Appeals of Indiana, Third District.
April 12, 1978.

Page 1168

[176 Ind.App. 143] Charles R. LeMaster, Fort Wayne, for defendant-appellant.

John S. Knight, Peters & Terrill, Fort Wayne, for plaintiff-appellee.

HOFFMAN, Judge.

Plaintiff-appellee Kay Lynn Mills (Mills) brought this action to recover real estate, certain personal property and damages from defendant-appellant L. Michael Blaising (Blaising), Mills' ex-husband. The real estate, located at 1630 Short Street, Fort Wayne, Indiana, and personal property, including a 1963 Thunderbird automobile, had been awarded to her in a May 18, 1972, divorce decree. In her complaint, Mills alleged that during the divorce proceedings and for a period of time thereafter she was under a physician's care for psychological and emotional distress and that, while she was in a weakened emotional and mental state, Blaising fraudulently represented that a reconciliation between the parties was imminent. She further alleged that, acting in reliance upon Blaising's promises of reconciliation and without the advice of counsel, she reconveyed to Blaising the subject real estate on July 26, 1972, relinquished ownership of personal property, including the 1963 Thunderbird, and paid one-half of Blaising's debt to the J. C. Penney Company. Additionally, Mills alleged Blaising failed to reconcile with her and stated he had never earnestly contemplated such a reconciliation. Accordingly, Mills [176 Ind.App. 144] sought a return of legal title to the real estate, the reasonable rental value of the real estate during Blaising's wrongful possession, a judgment in the amount Mills paid to the J. C. Penney Company on Blaising's account, and the return of the personal property or a judgment for its value.

In his answer, Blaising denied the allegations asserting, in addition, that the conveyance of the real estate was voluntarily made by Mills at her request after she disclaimed any desire for the assistance of counsel and that the conveyance was fully supported by consideration, consisting of an agreement whereby Mills would live on the property and tender the mortgage payments when due to Blaising. Blaising further asserted that Mills conveyed the 1963 Thunderbird to an automobile dealer as a trade-in on a 1966 Thunderbird and that Blaising merely acted as an accommodation party in the financing of the latter.

Following trial to the court, the court entered special findings of fact and conclusions of law at Blaising's request. The trial court found that between December of 1971 and January of 1973, Mills was suffering

Page 1169

from emotional distress and personality disorders which resulted in substantial dependence upon Blaising. During that period of time Mills' demeanor and actions were compelled and controlled by her love for Blaising, her fear of him and her psychological need for his attention. The court found that Blaising knew of Mills' psychological condition, that she was dependent upon him and that she would respond favorably to nearly all demands he placed upon her. During this period Blaising made representations to Mills by word and action that there would be a marital reconciliation between the parties and a restoration of the marital home. The court found that Mills relied upon the representations and was induced to reconvey to Blaising the real estate located at 1630 Short Street, to surrender control of the 1963 Thunderbird and to pay $300 toward Blaising's obligation to the J. C. Penney Company. The trial court entered judgment against Blaising, ordered him to reconvey to Mills the real estate at 1630 Short Street and awarded Mills damages in the sum of $5,500.

Following the denial of his motion to correct errors, Blaising perfected this appeal.

[176 Ind.App. 145] Blaising first contends that the judgment is contrary to law because actionable fraud cannot be predicated upon a promise to do a thing in the future.

Fraud may be actual or constructive; actual fraud is intentional deception. The presence or absence of the intent to deceive distinguishes actual from constructive fraud. Coffey et al. v. Wininger et ux. (1973), 156 Ind.App. 233, 296 N.E.2d 154 (transfer denied). The essential elements of actual fraud are a material representation of past or existing facts, which representations are false, made with knowledge or reckless ignorance of this falsity, which cause a reliance upon these representations, to the detriment of the person so relying. Gonderman v. State Exchange Bank, Roann (1975), Ind.App., 334 N.E.2d 724; Grissom v. Moran (1972), 154 Ind.App. 419, 290 N.E.2d 119, rehearing denied 154 Ind.App. 432, 292 N.E.2d 627 (transfer denied).

Blaising correctly argues that actual fraud cannot be predicated upon promises of future performance. Indeed, in Indiana the representations upon which an action for fraud can be maintained must be representations of alleged existing facts and not promises to be performed in the future. Sachs v. Blewett (1933), 206 Ind. 151, 185 N.E. 856; Wellington v. Wellington (1973), 158 Ind.App. 649, 304 N.E.2d 347; Martin et ux. v. Grutka (1972), 151 Ind.App. 167, 278 N.E.2d 586; Middelkamp v. Hanewich (1970), 147 Ind.App. 561, 263 N.E.2d 189.

In this case the trial court found that Blaising represented to Mills that their marriage would be reconciled and that, in reliance thereupon, Mills was induced to reconvey to Blaising the real estate at 1630 Short Street, to surrender ownership of the 1963 Thunderbird automobile, and to pay $300 on Blaising's behalf to the J. C. Penney Company. Since Blaising's alleged representation about the marital reconciliation was a promise to be performed in the future, the judgment of the trial court cannot be sustained on the theory of actual fraud. Sachs v. Blewett, supra; Wellington v. Wellington, supra.

The judgment, however, can be sustained on the theory of constructive fraud. Constructive fraud has been defined as:

" 'a breach of legal or equitable duty which, irrespective of the [176 Ind.App. 146] moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests.' " Coffey et al. v. Wininger, et ux., supra, 156 Ind.App. at 239-240, 296 N.E.2d at 159; Brown v. Brown (1956), 235 Ind. 563, 135 N.E.2d 614.

Such acts or breaches of duty sufficient to constitute constructive fraud "may include mistake, undue influence, or duress." Brown v. Brown, supra, 235 Ind. at 568, 135 N.E.2d at 616 (emphasis added).

Undue influence, sufficient to invalidate a deed, was defined in Folsom v.

Page 1170

Buttolph (1924), 82 Ind.App. 283, 295, 297, 143 N.E. 258, 262:

"Undue influence may be defined to be the exercise of sufficient control over the person, the validity of whose act is brought in question, to destroy his free agency and constrain him to do what he would not have done if such control had not been exercised.

" 'Undue influence exists when, through weakness, ignorance, dependence, or implicit reliance of one on the good faith of another, the latter obtains an ascendency which prevents the former from exercising an unbiased judgment . . . .' " See also: Hunter v. Milhous (1973), 159 Ind.App. 105, 305 N.E.2d 448, 459-460; Baker et al. v. Whittaker et al. (1962), 133 Ind.App. 347, 182 N.E.2d 442; Norman v. Norman (1960), 131 Ind.App. 67, 169 N.E.2d 414.

In Folsom, the court stated:

" '. . . As bearing on the...

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39 practice notes
  • Dotlich v. Dotlich, No. 1-1183A357
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 1985
    ...with the fiduciary duty to overcome the presumption by showing his actions were honest and in good faith. Id.; Blaising v. Mills (1978), 176 Ind.App. 141, 374 N.E.2d 1166; Schemmel v. Hill (1930), 91 Ind.App. 373, 383, 169 N.E. 678, trans. denied; Zaring v. Kelly (1920), 74 Ind.App. 581, 58......
  • Henkin v. Skane-Gripen A.B., SKANE-GRIPEN
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 12, 1993
    ...Fraud Promissory misrepresentations can, however, support an action for constructive fraud under Indiana law. Blaising v. Mills, 176 Ind.App. 141, 374 N.E.2d 1166 (1978). "Constructive fraud consists of most of the same elements as actual fraud; material representation of past or exist......
  • Vantine v. Elkhart Brass Mfg. Co., Inc., No. S 82-510.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 30, 1983
    ...the reliance to the detriment of the person relying upon it. Carrell v. Ellingwood, Ind. App., 423 N.E.2d 630 (1981); Blaising v. Mills, 176 Ind.App. 141, 374 N.E.2d 1166 B. All of the plaintiffs' claims, including the claim for fraud, are contrary to the exclusive remedy provisions of the ......
  • Vaughn v. General Foods Corp., No. 85-1847
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 9, 1986
    ...of the person so relying." Whiteco Properties, Inc. v. Thielbar, 467 N.E.2d 433, 436 (Ind.App.1984) (quoting Blaising v. Mills, 176 Ind.App. 141, 374 N.E.2d 1166, 1169 (1978)). In order to determine the propriety of allowing the fraud claim to go to the jury, we must consider whether t......
  • Request a trial to view additional results
39 cases
  • Dotlich v. Dotlich, No. 1-1183A357
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 1985
    ...with the fiduciary duty to overcome the presumption by showing his actions were honest and in good faith. Id.; Blaising v. Mills (1978), 176 Ind.App. 141, 374 N.E.2d 1166; Schemmel v. Hill (1930), 91 Ind.App. 373, 383, 169 N.E. 678, trans. denied; Zaring v. Kelly (1920), 74 Ind.App. 581, 58......
  • Henkin v. Skane-Gripen A.B., SKANE-GRIPEN
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 12, 1993
    ...Fraud Promissory misrepresentations can, however, support an action for constructive fraud under Indiana law. Blaising v. Mills, 176 Ind.App. 141, 374 N.E.2d 1166 (1978). "Constructive fraud consists of most of the same elements as actual fraud; material representation of past or exist......
  • Vantine v. Elkhart Brass Mfg. Co., Inc., No. S 82-510.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 30, 1983
    ...the reliance to the detriment of the person relying upon it. Carrell v. Ellingwood, Ind. App., 423 N.E.2d 630 (1981); Blaising v. Mills, 176 Ind.App. 141, 374 N.E.2d 1166 B. All of the plaintiffs' claims, including the claim for fraud, are contrary to the exclusive remedy provisions of the ......
  • Vaughn v. General Foods Corp., No. 85-1847
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 9, 1986
    ...of the person so relying." Whiteco Properties, Inc. v. Thielbar, 467 N.E.2d 433, 436 (Ind.App.1984) (quoting Blaising v. Mills, 176 Ind.App. 141, 374 N.E.2d 1166, 1169 (1978)). In order to determine the propriety of allowing the fraud claim to go to the jury, we must consider whether t......
  • Request a trial to view additional results

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