Eskew v. Cornett

• Decision Date: 26 February 2001
• Docket Number: No. 49A02-0006-CV-411.,49A02-0006-CV-411.
• Citation: 744 N.E.2d 954
• Parties: Kenneth W. ESKEW, individually and as Trustee of the Kenneth W. Eskew Trust, Thomas J. McAllister, Trustee of the Theodore F. Schlaegel, Jr. Trust, and Eugene P. Cornett individually and as Trustee of the Eugene P. Cornett Trust, Appellants-Plaintiffs, v. Adaline M. CORNETT, Appellee-Defendant.
• Court: Indiana Appellate Court

744 N.E.2d 954

Kenneth W. ESKEW, individually and as Trustee of the Kenneth W. Eskew Trust, Thomas J. McAllister, Trustee of the Theodore F. Schlaegel, Jr. Trust, and Eugene P. Cornett individually and as Trustee of the Eugene P. Cornett Trust, Appellants-Plaintiffs, v. Adaline M. CORNETT, Appellee-Defendant.

No. 49A02-0006-CV-411.

Court of Appeals of Indiana.

February 26, 2001.

Rehearing Denied April 30, 2001.

Alan H. Lobley, Indianapolis, IN, Attorney for Appellants.

Sue Figert Meyer, R. Brock Jordan, Rubin & Levin, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge

Kenneth W. Eskew, individually and as Trustee of the Kenneth W. Eskew Trust, Thomas J. McAllister, Trustee of the Theodore F. Schlaegel, Jr. Trust, and Eugene P. Cornett, individually and as Trustee of the Eugene P. Cornett Trust (collectively "Eskew") appeal the trial court's grant of judgment on the pleadings on their claim against Adaline M. Cornett ("Cornett"), contending that the allegations of his complaint are sufficient to establish a valid claim for relief.

We affirm.

FACTS AND PROCEDURAL HISTORY

In the 1970s, several individuals entered into joint ventures to purchase and develop real estate. Eugene Cornett, Adaline Cornett, Kenneth Eskew, and Betty L. Eskew entered into a joint venture to purchase a parcel of property. The joint venture outlined the division of potential proceeds. The Cornetts also entered a joint venture agreement with Theodore F. Schlaegel to develop the property and divide the proceeds.

In 1994, R.N. Thompson & Associates, Inc. ("RNTA") contracted to purchase the property from all of the interest holders. The purchase agreement provided that "Purchaser, at Purchaser's option, may acquire Adaline M. Cornett's interest in the real estate by separate documents without such acquisition being a violation of the memorandum (memo) of joint venture agreement." Record at 17.

RNTA entered into a separate agreement with Cornett to acquire her interest for a considerable sum beyond what she would have received under the first purchase agreement. The agreement stated that "additional consideration is appropriate for Adaline to relinquish her interest in these parcels including transfer of Adaline's attendant right to insist on a unanimous vote [to transfer the property.]" Record at 101.

After Eskew learned of the RNTA Cornett agreement, he brought suit against Cornett for breach of the purchase agreement, breach of fiduciary duty, and conversion. The trial court granted Cornett's motion for judgment on the pleadings. Eskew now appeals.

DISCUSSION AND DECISION

Eskew contends that the trial court erred in granting Cornett's motion for judgment on the pleadings. A motion for judgment on the pleadings pursuant to Ind. Trial Rule 12(C) attacks the legal sufficiency of the pleadings. Rivera ex rel. Rivera v. City of Nappanee, 704 N.E.2d 131, 132 (Ind.Ct.App.1998), trans. denied (1999). A judgment on the pleadings is proper only when there are no genuine issues of material fact and when the facts shown by the pleadings clearly establish that the non-moving party cannot in any way succeed under the facts and allegations therein. Bledsoe v. Fleming, 712 N.E.2d 1067, 1069-70 (Ind.Ct.App.1999).

In reviewing a trial court's decision on a motion for judgment on the pleadings pursuant to T.R. 12(C), this court conducts a de novo review. Transcontinental Ins. Co. v. J.L. Manta, Inc., 714 N.E.2d 1277, 1280 (Ind.Ct.App.1999); Rivera, 704 N.E.2d at 132. We look only to the pleadings in making this assessment. Schuman v. Kobets, 716 N.E.2d 355, 356 (Ind.1999).

We will accept as true the well-pleaded material facts alleged, and we will not affirm if there are any genuine issues of material fact. Id.; Transcontinental Ins.,714 N.E.2d at 1280. The moving party is deemed to have admitted well-pleaded facts in favor of the nonmovant, and this court will draw all reasonable inferences in favor of the non-movant. Transcontinental Ins.,714 N.E.2d at 1280; Rivera, 704 N.E.2d at 132. We will affirm the trial court's grant of a T.R. 12(C) motion for judgment when it is clear from the face of the pleadings that one of the parties cannot in any way succeed under the operative facts and allegations made therein. Transcontinental Ins.,714 N.E.2d at 1280.

At issue here is the construction of a contract. Since the trial rules require the pleader to attach to its complaint the written document upon which its action is premised, see T.R. 9.2(A), we may look to both the complaint and the attached contract for purposes of determining the appropriateness of the court's ruling on the motion for judgment on the pleadings. Gregory & Appel, Inc. v. Duck, 459 N.E.2d 46, 50-51 (Ind.Ct.App.1984). However, where allegations of a pleading are inconsistent with terms of a written contract attached as an exhibit, the terms of the contract, fairly construed, must prevail over an averment differing therefrom. Id. Furthermore, a moving party, for the purpose of the motion, concedes only the accuracy of the factual allegations in his adversary's pleadings; he does not admit assertions which constitute conclusions of law. Id.

Eskew claims that Cornett breached the contract. The construction of a written contract is a question of law. Wildman v. National Fire & Marine Ins. Co., 703 N.E.2d 683, 685 (Ind.Ct.App. 1998), trans. denied (1999). When interpreting a contract, our paramount goal is to ascertain and effectuate the intent of the parties. Crawford County Community Sch. Corp. v. Enlow, 734 N.E.2d 685, 690 (Ind.Ct.App.2000). This requires that the contract be read as a whole, and the language construed so as not to render any words, phrases, or terms ineffective or meaningless. Id. The unambiguous language of a contract is conclusive upon the parties to the contract and upon the courts. Peoples Bank & Trust Co. v. Price, 714 N.E.2d 712, 716 (Ind.Ct.App. 1999), trans. denied. When the language of a contract is clear and unambiguous, the intent of the parties is determined from the four corners of the instrument. Id. In such a situation, the terms are conclusive and we will not construe the contract or look at extrinsic evidence, but will merely apply the contractual provisions. Crawford County Community Sch., 734 N.E.2d at 690.

Here, the written purchase agreement specifically allows Cornett to sell her interest in the real estate by separate agreement without limitation as to the amount that she could demand for the sale of her interest. Cornett acted according to the express provision of the contract allowing her to negotiate and sell her interest separately without violating her joint venture agreement. Eskew received the portion due him under the purchase agreement. The pleadings disclose no cause of action under these facts.

Nonetheless, Eskew maintains that the purchase agreement set the price for the sale and the portion of each joint venturer's share of the price. It is true that the purchase agreement sets out the timing and amount of payment to each party. However, it also gives Cornett the right to sell her interest separately. When a contract contains general and specific provisions relating to the same subject, the specific provision controls. Askren Hub States Pest Control Servs., Inc. v. Zurich Ins. Co., 721 N.E.2d 270, 280 n. 2 (Ind.Ct.App.1999). Here, while the provision sets forth the amounts each party would receive under the general formula, it also specifically gives Cornett the right to negotiate separately. Thus, that provision controls the general price provision.

Eskew also asserts that the separate sale provision in the purchase agreement applied only to the joint venture agreements and not to the financial provisions of the purchase agreement. However, the provision is not so limited by its express terms. The individual parties to a contract have a right to define their mutual rights and obligations. Huntington Mortgage Co. v. DeBrota, 703 N.E.2d 160, 164 (Ind.Ct.App.1998). It is not within the province of this court to make a new contract for the parties or to ignore or eliminate any provisions in the instrument. Id. The parties defined their rights and obligations in the contract and did not limit Cornett's ability to sell her interest for a greater amount than she would have received under the purchase agreement. The trial court did not err in granting Cornett's motion for judgment on the pleadings on this claim.

Eskew's complaint also contains a claim for breach of fiduciary duty based on the duty between joint venturers. Any fiduciary duty owed by Cornett to her co-joint venturers was limited by the terms of the contract which gave her the right to negotiate and sell her interest separately. Although Eskew asserts that the confidentiality clause in the RNTA-Cornett agreement evidences knowledge of wrongdoing, nothing in the joint venture agreement which specifically authorized Cornett to sell her interest separately precluded her from doing so confidentially or required disclosure of the terms of the separate transaction. The confidentiality clause in the contract is not evidence of guilty knowledge, nor under the allegations of the complaint is it a breach of a fiduciary obligation. Thus, the pleadings establish no viable claim for fiduciary duty.

Finally, Eskew's complaint also alleges that Cornett committed criminal conversion. Eskew argues that Cornett was obligated to pay over the proportionate share of the proceeds of the RNTA-Cornett agreement to her co-joint venturers. In failing to do so, he alleges, Cornett converted their funds.

One commits conversion by knowingly or intentionally exerting unauthorized control over the property of another person. IC XX-XX-X-X. The pleadings fail to demonstrate that Cornett exercised control over anyone else's property. The viability of this claim is dependent upon a finding that Eskew was entitled to receive a benefit from the RNTA-Cornett agreement. However, we...