Carbary v. Significantcarscom, 49A02-1005-PL-582
| Decision Date | 21 April 2011 |
| Docket Number | No. 49A02-1005-PL-582,49A02-1005-PL-582 |
| Parties | SCOTT F. CARBARY, Appellant-Defendant, v. SHAWN MILLER d/b/a SIGNIFICANTCARS.COM, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT:
ALAN S. BROWN
JULIA BLACKWELL GELINAS
DONN H. WRAY
Stewart & Irwin, P.C.
Indianapolis, Indiana[/p]
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Thomas J. Carroll, Judge
Scott Carbary appeals summary judgment in favor of Shawn Miller d/b/a Significant Cars. He raises the following issues:
Miller also requests attorney's fees for time spent responding to Carbary's appeal. We affirm, award Miller appellate attorneys' fees, and remand for determination of the appellate attorneys' fees award.
On June 19, 2008, Carbary, who resides in the State of Washington, and Miller, who lives in Indiana, entered into an Exclusive Listing and Marketing Agreement for Carbary's four classic vehicles. The contract gave Miller the exclusive right to list and market Carbary's vehicles for 180 days.1 If a car was sold either during the listing or within sixty days after the listing ended, Miller would be paid "ten percent (10%) of the first Ten Thousand and 00/100 Dollars ($10,000) and seven percent (7%) of any amount above Ten Thousand and 00/100 Dollars ($10,000)." (App. at 68.) A forum selection clause required all litigation involving the contract be conducted in Marion County, Indiana.
The contract defined where Miller would list the vehicles for sale, including Ebay and various trade publications and websites. On September 24, 2008, Carbary attempted toterminate the contract because he was not satisfied with some of Miller's advertising. Miller then changed the listings on his Significant Cars website to indicate Carbary's vehicles had been sold.
On October 18, 2008, Carbary sold one of the vehicles, a 1935 Ford Deluxe Phaeton ("the Phaeton") for $39,000. Unaware Carbary had already sold the Phaeton, Miller entered an agreement to sell the same car in January 2009 for $49,600. Miller then sent Carbary an invoice for $3,772 representing his commission for the sale of the Phaeton pursuant to the contract. Carbary refused to pay the commission, and Miller sued to collect it. After some procedural wrangling, 2 Carbary filed an answer to Miller's complaint.
Miller moved for summary judgment on February 12, 2010. On February 26, Carbary filed a motion for leave to file a belated counterclaim, then filed a cross-motion for summary judgment on March 15. The trial court denied Carbary's motion for leave on April 5. On April 29, the court granted summary judgment to Miller, awarded him $3,030 in damages, and set a hearing for the determination of the amount of attorneys' fees due to Miller. After that hearing, the trial court ordered Carbary to pay Miller $372.57 in pre-judgment interest and $14,197.56 in attorneys' fees.
The decision to grant or deny a motion to file a belated counterclaim is within the sound discretion of the trial court. Freedom Exp., Inc. v. Merchandise Warehouse Co., Inc., 647 N.E.2d 648, 653 (Ind. Ct. App. 1995). We reverse its decision only for an abuse of that discretion. Id. An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of facts and circumstances before the court or reasonable deductions to be drawn therefrom. Id.
"When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment." Indiana Trial Rule 13(F). Carbary claims "justice requires" he be permitted to file his counterclaim because he chose to sue Miller in Washington, rather than file a counterclaim in Indiana.3 We disagree.
Carbary cites Metropolitan Real Estate Corp. v. Frey, 480 N.E.2d 267, 272 (Ind. Ct. App. 1985), where we held, "if a plaintiff is not prejudiced in the preparation of a defense against it, a compulsory counterclaim may be filed with leave of court after filing defendant's first responsive pleading." However, Frey is distinguishable.
Frey sought leave to file a counterclaim only one month after the original complaint was filed, and it was not clear from the record whether an answer had been filed. Carbary, onthe other hand, waited over thirteen months after the original complaint was filed, and over seven months after he filed his answer, to file his motion for leave to file a compulsory counterclaim. We decline to hold the trial court abused its discretion based on Frey.
Carbary also claims he delayed filing the counterclaim because he instead filed an action in Washington State stemming from the same transaction. But the contract explicitly provides: (App. at 68.)4
There was no abuse of discretion in the denial of Carbary's motion.
When reviewing a summary judgment, we apply the same standard as the trial court. Beatty v. LaFountaine, 896 N.E.2d 16, 19-20 (Ind. Ct. App. 2008), trans. denied. Summary judgment is appropriate if the pleadings and evidence submitted demonstrate there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C); Jacobs v. Hilliard, 829 N.E.2d 629, 632 (Ind. Ct. App. 2005), trans. denied. We construe the pleadings, affidavits, and designated evidence in the light most favorable to the non-moving party, and the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Beatty, 896 N.E.2d at 20. The summary judgment comes tous clothed with a presumption of validity, so the appellant must persuade us that error occurred. Id. If the summary judgment can be sustained on any theory or basis in the record, we must affirm. Irwin Mort. Corp. v. Marion County Treasurer, 816 N.E.2d 439, 442 (Ind. Ct. App. 2004). Even so, we must carefully review a grant of summary judgment in order to ensure that a party was not improperly denied his or her day in court. Smither v. Asset Acceptance, LLC, 919 N.E.2d 1153, 1156 (Ind. Ct. App. 2010).
Carbary argues he raised multiple genuine issues of material fact. A genuine issue of material fact exists where "facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue." Wicker v. McIntosh, 938 N.E.2d 25, 28 (Ind. Ct. App. 2010). A fact is "material" if it helps to prove or disprove an essential element of the plaintiff's cause of action. Lake States Ins. Co. v. Tech Tools, 743 N.E.2d 314, 318 (Ind. Ct. App. 2001).
Carbary asserts there are genuine issues of material fact because Miller did not perform his obligations under the agreement, Carbary was fraudulently induced into entering the agreement with Miller, and Miller was conducting his business illegally when the parties entered into the contract.
The agreement provided Miller had the exclusive right to market Carbary's vehicles, including the Phaeton, for 180 days. The trial court found:
It is undisputed that Miller had the exclusive right to sell the vehicle during the contract's term and Carbary has admitted he sold the 1935 Ford Phaeton onOctober 18, 2008, well within the contract's term. Significant Cars is, accordingly, entitled to its commission under the exclusive listing provision agreed to by Carbary.
(App. at 10.) The contract provides "Significant Cars will receive payment for its services hereunder as a percentage of the final sales price of the Vehicle based upon the following formula: 10% of the first Ten Thousand Dollars ($10,000.00) and 7% of any amount about Ten Thousand Dollars ($10,000.00)." (Id. at 68.) Thus, we cannot find error in the decision to award Miller commission pursuant to the terms of the contract for the sale of the Phaeton.
(Id. at 9-10.)
The contract did not address early termination. Carbary claims he had the right to terminate the contract because...
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