Gable v. Curtis

Decision Date27 November 1996
Docket NumberNo. 54A01-9606-CV-189,54A01-9606-CV-189
Citation673 N.E.2d 805
PartiesRonald L. GABLE and Jodi L. Gable, Appellants-Plaintiffs, v. Roger A. CURTIS, Heritage Church Builders, Inc., Lynda Curtis, Ron Keeling and Union Federal Savings and Loan Association, Appellees-Defendants.
CourtIndiana Appellate Court
OPINION

ROBERTSON, Judge.

Ronald L. and Jodi L. Gable [Gable] appeal the summary judgments entered in their actions 1) against Roger A. Curtis, individually, for fraud; 2) against Lynda Curtis [Roger's spouse] for the intentional infliction of emotional distress; and 3) against Ronald Keeling and the Union Federal Savings and Loan Association [Bank] for fraud. We first address, and affirm, the trial court's decision to grant Gable an extension under Ind.Trial Rule 72(E) to file the praecipe which initiated this appeal. Gable raises three issues, one related to each of the causes of action listed above. We reverse the summary judgment in favor of Roger Curtis, individually, for fraud. In all other respects, we affirm.

FACTS

The facts in the light most favorable to the nonmovant, Gable, reveal that the Gables desired to build a house and met with Roger A. Curtis, a building contractor, who had been recommended to them. Curtis operated through his closely held corporation, Heritage Church Builders, Inc. Curtis estimated the cost of building Gable's home at $85,000.00. Gable entered into a construction management contract with Heritage Church Builder's Inc. to build a home for that price.

Gable went to the Bank and met with Bank representative, Ron Keeling, regarding a loan to build the home. The Bank determined that it would loan Gable only $76,800.00. Gable again met with Curtis who agreed that Heritage Church Builder's Inc. would build the home for the lower amount that the Bank was willing to lend. Gable then took out the loan from the Bank. At some point, Keeling stated to Gable that "Roger [Curtis] is good with his budgets." The Gables concede that Keeling thought that he was telling the truth.

Construction began. Costs overran the budget. Gable agreed to pay approximately an additional $10,000.00 to finish the home. However, the house cost approximately $120,000.00 to complete, even before the air conditioning system (which had been included in the contract) had been installed. The dispute began to heat up.

One morning, Lynda Curtis, Roger Curtis' spouse, called the Gables' home on the telephone and spoke to Jodi Gable approximately seven times in one hour. Lynda Curtis screamed and yelled at Jodi regarding the allegations that the Gables had made against Roger Curtis. Lynda threatened to "repossess" the home, apparently demanding that the Gables pay for the construction of the home. Lynda threatened to come over and stated repeatedly that the Gables "would pay." Jodi admitted in her deposition that Lynda did not specifically threaten her with bodily harm and that the reference that the Gables "would pay" meant, at least in part, that the Gables would pay Lynda's medical bills incurred for the distress they had caused her by accusing her husband of misconduct. Jodi directed Lynda to the Gables' attorney and hung up on her repeatedly. Jodi was very upset after the phone calls, locked all the doors, feared for her family and her home, and was still brought to tears over the incident at the time of her deposition some months later.

Ultimately, Gable sued Heritage Church Builders, Inc., and Roger Curtis, individually, for breach of contract and fraud. Jodi Gable also sued Lynda Curtis for the intentional infliction of emotional distress based upon the upsetting phone calls. Gable also sued the Bank and its representative, Ronald Keeling, for fraud based upon Keeling's statement that "Roger is good with his budgets."

Roger Curtis obtained summary judgment with respect to his individual capacity. (Gable's claim against Heritage Church Builders, Inc. was not subjected to summary judgment proceedings). Lynda Curtis, the Bank, and Ronald Keeling also obtained summary judgment. This appeal ensued.

DECISION
Appellate Jurisdiction--Timely Filing of Praecipe

Gable's attorney, Miriam Rich, filed the complaint initiating this case in May of 1995, at which time she had listed a Greenwood, Indiana address. On November 1, 1995, Rich filed notice of the change of her address with the clerk of the trial court as required by Ind.Trial Rule 3.1(E). The Chronological Case Summary (CCS) sets out Rich's new Indianapolis address correctly and in its entirety. On November 28, 1995, the trial court entered the summary judgments which are the subjects of this appeal.

On December 28, 1995, Gable filed a timely motion to correct error. Rich had listed her new Indianapolis address at the bottom of the motion. The trial court denied the motion on January 5, 1996. The CCS entry indicated:

01-05-96 ... the court having reviewed the case now finds that the Motion to Correct Errors should be denied for lack of new evidence presented. (See order) *Clerk to notify NOTIFIED 01-09-96 ww. (Reissued a copy to Atty. Rich on 03-13-96 ww.)

02/12/96 No service by mail on 01/09/96 to Miriam Rich. Insufficient address.

As indicated by the CCS, the notice that the motion to correct error had been denied did not reach Rich due to an "insufficient address."

As Rich had not heard anything regarding the motion to correct error, she assumed that it had been deemed denied by operation of T.R. 53.3. (This trial rule provides that a motion to correct error is deemed denied 45 days after it is filed where no ruling is made and no hearing has been set). Rich filed the praecipe to initiate this appeal on March 11, 1996, within 30 days of the date she had thought that her motion to correct error had been deemed denied. After learning that the trial court had denied the motion on January 5, 1996, and thus, the praecipe filed March 11, 1996 was untimely, Rich requested relief from the trial court pursuant to T.R. 72(E) which reads:

Effect of Lack of Notice. Lack of notice, or the lack of the actual receipt of a copy of the entry from the Clerk shall not affect the time within which to contest the ruling, order or judgment, or authorize the Court to relieve a party of the failure to initiate proceedings to contest such ruling, order or judgment, except as provided in this section. When the mailing of a copy of the entry by the Clerk is not evidenced by a note made by the Clerk upon the Chronological Case Summary, the Court, upon application for good cause shown, may grant an extension of any time limitation within which to contest such ruling, order or judgment to any party who was without actual knowledge, or who relied upon incorrect representations by Court personnel. Such extension shall commence when the party first obtained actual knowledge and not exceed the original time limitation.

The trial court granted Gable the relief provided under this rule, and the appeal proceeded in due course.

Bank and Curtis argue that the trial court erred by granting Gable T.R. 72(E) relief because the CCS shows that notice of the denial of the motion to correct error had been mailed, citing Collins v. Covenant Mutual Insurance Company, 644 N.E.2d 116 (Ind.1994). See also Minnick v. Minnick, 663 N.E.2d 1226 (Ind.Ct.App.1996). These cases have interpreted the plain language of T.R. 72(E) as providing that, where the CCS affirmatively evidences that notice of the final judgment has been mailed by the clerk, the trial court lacks the authority to relieve a party from the consequences of failing to timely file a praecipe. Id. 644 N.E.2d at 118, 663 N.E.2d at 1228.

The present case is clearly distinguishable from the cases cited above because the CCS demonstrates more than mere mailing of the notice by the clerk. The CCS affirmatively demonstrates that Rich did not receive the notice because it had been insufficiently addressed. Moreover, the CCS affirmatively demonstrates that Rich had provided the clerk with her correct address as required under T.R. 3.1(E).

Obviously, when service is to be made by mail, the papers must be deposited in the United States mail addressed to the person on whom they are being served, with postage prepaid. See T.R. 5(B)(2) (Emphasis added). In Comer v. Gohil, 664 N.E.2d 389, 392 (Ind.Ct.App.1996), trans. pending, a medical malpractice plaintiff attempted to file her proposed complaint with the Department of Insurance by mail. However, it was returned by the post office "postage due" because she had failed to affix a sufficient amount of postage. We held that the responsibility for affixing a sufficient amount of postage rested with the person doing the mailing, and therefore, a mailing with insufficient postage did not achieve "filing" by mail. Id. at 392.

Similarly, under the present circumstances, we hold that the clerk's mailing of notice of the denial of the motion to correct error with an insufficient address did not constitute a "mailing" as contemplated under T.R. 72(E). Gable did not have actual notice that the motion to correct error had been denied and showed good cause for relief under the trial rule. Accordingly, the trial court did not err in giving Gable an extension in which to file the praecipe initiating this appeal, and we find no error.

Summary Judgment Proceedings

In reviewing a motion for summary judgment, this court applies the same standard as the trial court. American Family Mutual Insurance Co. v. Dye, 634 N.E.2d 844, 846 (Ind.Ct.App.1994), trans. denied. We must determine whether there is a genuine issue of material fact and whether the law has been correctly applied by the trial court. Cloverleaf Apartments, Inc. v. Town of Eaton, 641 N.E.2d 665, 667 (Ind.Ct.App.1994). Summary judgment is appropriate only if no...

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