DiMizio v. Romo
| Decision Date | 11 October 2001 |
| Docket Number | No. 48A02-0103-CV-138.,48A02-0103-CV-138. |
| Citation | 756 N.E.2d 1018 |
| Parties | Giancarlo DiMIZIO and Antonio DiMizio d/b/a Luca Pizza of Anderson, Appellants-Plaintiffs, v. Oswaldo ROMO and Lemia Romo d/b/a Romo's Pizza, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Jane Ruemmele, Huffer & Weathers, Indianapolis, IN, Attorney for Appellants.
Tommy L. Strunk, Indianapolis, IN, Attorney for Appellees.
Giancarlo and Antonio DiMizio appeal from a negative judgment involving a breach of contract action arising out of the sale of a pizza restaurant and the duty to pay commissions on gross sales as provided for in the Addendum and Modification of the Contract of Sale. Specifically, the DiMizios contend that Lemia Romo, the wife of the Buyer, Oswaldo Romo, was a proper party to the lawsuit and that they are entitled to commissions from the Romos for so long as they operate a pizza restaurant in the Mounds Mall located in Anderson, Indiana. Because we find that Lemia Romo was not a party to either the Contract or its Modification, we affirm the trial court on that issue. However, we reverse the trial court's ruling as to Romo's liability for failure to pay commissions as provided for in the Modification of the Contract of Sale and remand for a recalculation of damages owed to the DiMizios.
The evidence most favorable to the judgment is as follows. On January 6, 1991, the DiMizios entered into a Contract with Oswaldo Romo for the sale of Luca Pizza of Anderson for the sum of $150,000.00 at 7% per annum.1 Further, the Contract provided that Romo would, "[u]pon complete payment of the $150,000.00 purchase price, ... initiate payment to Sellers of a 6% fee on the gross receipts less sales tax for the remaining period of the lease and any extensions of the lease as hereinafter provided." Appellant's App. P.207. The Contract also contained a provision allowing for the recovery of attorney's fees and costs by the prevailing party of any dispute arising out of or relating to the Contract or its breach.
Subsequently, Romo requested that the percentage fee collected on the restaurant's gross receipts be reduced. The DiMizios agreed to reduce their commission and entered into a written modification of their original Contract of Sale with Romo on September 11, 1996. The Addendum and Modification of the Contract provided:
In consideration of the promise of the Sellers not to seek enforcement of the terms of the Original Contract regarding payment of a percentage of the gross receipts, and for other valuable consideration as set forth in the Original Contract and this Addendum and Modification, the Buyer shall pay to Sellers Two percent (2%) of the gross receipts of the business, for a period of two (2) years, the percentage of gross receipts paid to Sellers shall be three percent (3%) for so long as the Buyer operates a pizza restaurant in the City of Anderson in the Mounds Mall.
Appellant's App. P.211. The parties reaffirmed all of the terms of the original Contract not inconsistent with the Modification.
In December of 1997, without any direct assistance from the DiMizios, Romo renegotiated a new lease with the Simon Property Group to commence upon the expiration of the previous lease held by the DiMizios. Romo discontinued payment of the commissions due to the DiMizios following his January 24, 1998 payment. As a result, the DiMizios sued Romo and his wife, Lemia Romo, for breach of contract. Romo defended based on lack of consideration, acceptance and mutual assent and failure to state a claim upon which relief can be granted. Further, Romo counterclaimed for attorney's fees arising under the Contract and attorney's fees as provided by Indiana Code § 34-54-1-1(b) for having to defend the frivolous lawsuit filed against his wife who Romo alleged was not a proper party to the lawsuit since she had signed neither the original Contract nor the Modification.
The trial court entered findings of fact and conclusions based thereon in favor of Romo on both the complaint and counterclaim. The DiMizios filed a Motion to Correct Errors, which the trial court denied. This appeal ensued.
The DiMizios present several issues for our review, which we distill into two issues: whether Lemia Romo was a proper party to the lawsuit and whether a valid contract existed between the DiMizios and Romo, which Romo breached by ceasing to pay commissions provided for in the Contract, thereby entitling the DiMizios to commissions due and owing and attorney's fees. We address each issue in turn.
The DiMizios appeal from a negative judgment. To prevail on appeal, therefore, the DiMizios must demonstrate that the trial court's judgment is contrary to law. Thor Elec., Inc. v. Oberle & Assocs., Inc., 741 N.E.2d 373, 381 (Ind.Ct. App.2000). A judgment is contrary to law only if the evidence in the record, along with all reasonable inferences, is without conflict and leads unerringly to a conclusion opposite that reached by the trial court. Id. In conducting our review, we cannot reweigh the evidence or judge the credibility of any witness, and must affirm the trial court's decision if the record contains any supporting evidence or inferences. Id. Where, as here, the trial court enters findings of fact and conclusions, we treat the verdict as a general verdict, with the special findings controlling only as to those issues they cover. In re S.T., 621 N.E.2d 371, 373 (Ind.Ct.App.1993). We will affirm the trial court's judgment upon any legal theory consistent with the evidence. Id.
The DiMizios assert that Lemia Romo is a proper party to the breach of contract action. We disagree.
A person typically cannot be held liable for breach of contract unless it is shown that she was a party to the contract. Columbia Club, Inc. v. Am. Fletcher Realty Corp., 720 N.E.2d 411, 417 (Ind.Ct.App. 1999), trans. denied. Contractual obligations are personal in nature and privity of contract is essential for the establishment of contractual liability. Id. The DiMizios fail to establish that a contractual relationship existed between them and Lemia Romo. Undisputed facts reveal that only Oswaldo Romo, and not Lemia, signed the original Contract and the Modification. Because Lemia signed neither instrument upon which the DiMizios assert their theory of breach, no right of action could accrue in favor of the DiMizios against Lemia. Accordingly, we affirm the trial court's finding that Lemia is not a proper party to the breach of contract action, that maintenance of the action against Lemia was frivolous, and its award of attorney's fees according to Indiana Code § 34-52-1-1(b).
The DiMizios contend that Romo breached their contract by ceasing to make payments in accordance with the Modification, thereby entitling the DiMizios to commissions due and owing and attorney's fees as provided for in the original Contract. To support this contention, the DiMizios assert that the trial court erred by failing to find an enforceable contract that obligated Romo to pay the commission to the DiMizios "for so long as the Buyer operates a pizza restaurant in the City of Anderson in the Mounds Mall." Appellant's App. P.211. Specifically, the DiMizios allege that the trial court's findings of fact and conclusions based thereon, which stated that the modified contract lacked mutual assent and consideration, were unconscionable, and its enforcement would result in unjust enrichment, are clearly erroneous. We examine each allegation in turn.
The trial court concluded that the "Contract of Sale ... lacks mutual assent." Appellant's App. P.7. We disagree. The law concerning contracts is well settled in Indiana. An offer, acceptance, plus consideration make up the basis for a contract. Homer v. Burman, 743 N.E.2d 1144, 1146-47 (Ind.Ct.App.2001), reh'g denied. "A mutual assent or a meeting of the minds on all essential elements or terms must exist in order to form a binding contract." Id. (quoting Pinnacle Computer Services, Inc. v. Ameritech Pub., 642 N.E.2d 1011, 1013 (Ind.Ct.App. 1994)). However, "[a]ssent to those terms of a contract may be expressed by acts which manifest acceptance." Id.
In the instant case, Romo performed as specified in the Contract of Sale by paying a six percent commission from the signing of the Contract on January 6, 1991, until the Contract was modified on September 11, 1996. Thereafter, Romo continued to pay the commissions due to the DiMizios at the renegotiated rate until January 24, 1998. Based on these actions, we find that Romo expressed consent to the terms of both the original Contract and its Modification, which manifest acceptance of the duty to pay the commission to the DiMizios. Therefore, we conclude that the Contract and its Modification were supported by mutual assent.
In addition, the trial court concluded that "there is no consideration for a commission to be paid to Plaintiffs." Appellant's App. P.7. We find this conclusion to be erroneous. Under the common law of contracts, a written agreement may be modified by a subsequent written agreement so long as there exists consideration to support the modification. See Hamlin v. Steward, 622 N.E.2d 535, 539 (Ind.Ct. App.1993)
. The concept of consideration is oftentimes encapsulated by the phrase "bargained for exchange." Id. "To constitute consideration, there must be a benefit accruing to the promisor or a detriment to the promisee." Id. (quoting A & S Corp. v. Midwest Commerce Banking Co., 525 N.E.2d 1290, 1292 (Ind.Ct.App.1988)). A benefit is a legal right given to the promisor to which the promisor would not otherwise be entitled. OVRS Acquisition Corp. v. Community Health Servs., Inc., 657 N.E.2d 117, 126 (Ind.Ct.App.1995). A detriment, on the other hand, is a legal right the promisee has forborne. Id.
The Modification entered into by the...
To continue reading
Request your trial
-
Bamcor Llc v. Jupiter Aluminum Corp..
...802 N.E.2d 938, 944 n. 3 (Ind.App.2004); Rodziewicz v. Waffco Heavy Duty Towing, 763 N.E.2d 491 (Ind.App.2002); DiMizio v. Romo, 756 N.E.2d 1018, 1022 (Ind.App.2001). At common law, “for an offer and an acceptance to constitute a contract, the acceptance must meet and correspond with the of......
-
Aaron Macgregor & Assocs., LLC v. Zhejiang Jinfei Kaida Wheels Co.
...conduct is governed by an express contract. Town of New Ross v. Ferretti, 815 N.E.2d 162, 168 (Ind. App. 2004) ; DiMizio v. Romo, 756 N.E.2d 1018, 1025 (Ind. App. 2001). "Nonetheless, plaintiffs seeking recovery for breach of contract often plead unjust enrichment in the alternative, becaus......
-
Ball v. Versar, Inc.
...on the Trustees' motion to dismiss, unjust enrichment operates only where there is no governing contract. See also DiMizio v. Romo, 756 N.E.2d 1018, 1025 (Ind.App.2001) (trial court erred in invoking equitable theory of unjust enrichment where there was an enforceable contract). Similarly, ......
-
In re Valsartan, Losartan, & Irbesartan Prods. Liab. Litig.
...App. Apr. 5, 2019;Illinois: Muehlbauer v. General Motors Corp., 431 F. Supp. 2d 847, 853 (N.D. Ill. 2006);Indiana: DiMizio v. Romo, 756 N.E.2d 1018, 1025 (Ind. Ct. App. 2001);Iowa: State ex rel Palmer v. Unisys Corp., 637 N.W.2d 142, 155 (Iowa 2001);Kansas: Gonzalez v. Pepsico, Inc., 489 F.......