Gregory and Appel, Inc. v. Duck

• Decision Date: 23 January 1984
• Docket Number: No. 2-282A50,2-282A50
• Citation: 459 N.E.2d 46
• Parties: GREGORY AND APPEL, INC., Appellant (Plaintiff Below), v. Donald C. DUCK, Jane K. Duck, Thomas S. Duck, Junia F. Duck, Berkley W. Duck, Individually, and d/b/a Colonial Apartments, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 46

459 N.E.2d 46

GREGORY AND APPEL, INC., Appellant (Plaintiff Below), v. Donald C. DUCK, Jane K. Duck, Thomas S. Duck, Junia F. Duck,

Berkley W. Duck, Individually, and d/b/a Colonial

Apartments, Appellees (Defendants Below).

No. 2-282A50.

Court of Appeals of Indiana,

Second District.

Jan. 23, 1984.

William A. Waddick, Willis K. Kunz, Kunz & Kunz, Indianapolis, for appellant.

Steven C. Robinson, Lowe, Gray, Steele & Hoffman, Indianapolis, for appellees.

SULLIVAN, Judge.

This appeal, based upon a contract action, is from a judgment on the pleadings pursuant to an Indiana Trial Rule 12(C) motion filed by defendants. Appellant, Gregory and Appel, assigns as error the following:

1) That the grant of judgment on the pleadings by the trial court was actually a Trial Rule 12(B)(6) dismissal for failure to state a claim upon which relief may be granted, thereby affording to appellant, its absolute right to amend its complaint, or, alternatively,

2) That the grant of judgment on the pleadings by the trial court more properly constituted a summary judgment, and as such, was contrary to law owing to the existence of genuine issues of material fact.

The action before the trial court concerned whether or not a contract existed for the sale of certain property known as the Colonial Apartments in downtown Indianapolis. The property is owned by defendants, Donald Duck and members of his family. Plaintiff, Gregory and Appel, brought an action for declaratory judgment that a contract existed, and for specific performance to cause the Ducks to convey the property. The contractual dispute arose from a letter sent by Donald Duck in his capacity as attorney for the Ducks, to Gregory and Appel in which he set forth the terms of an offer that would be acceptable to the Ducks. The letter in question is characterized by the Ducks as a "solicitation of an offer", an "agreement to agree", and in the letter itself, as an invitation for a "proposal ... for the purchase ... of property...." Gregory and Appel contends that the letter constitutes an offer to sell. It purports to have accepted the offer by submitting to the Ducks a contract for the sale of real estate which, it argues, contains the terms specified in Duck's letter, thereby creating a binding contract.

The contract issues were briefed and argued before the trial court, whereupon the Ducks' motion for judgment on the pleadings pursuant to T.R. 12(C) was granted. This appeal derives from that ruling. At issue, on appeal, is the nature of the motion granted by the trial court, and whether a contract for the sale of real estate existed.

I.

Gregory and Appel's first assertion is that the trial court's grant of judgment on the pleadings, pursuant to T.R. 12(C) should have been treated as a T.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief may be granted. If this is so, Gregory and Appel was entitled, as a matter of right, to file an amended complaint within ten days of the granting of the motion. For support of this contention, Gregory and Appeal relies primarily upon Anderson v. Anderson (2nd Dist.1979) Ind.App., 399 N.E.2d 391. As to procedural matters, the Anderson case involved a T.R. 12(C) motion for judgment on the pleadings which was treated as a T.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief could be granted. Appellant cites Anderson, supra, for the proposition that a 12(C) motion must necessarily constitute either a 12(B)(6) motion to dismiss for failure to state a claim, or a T.R. 56 motion for summary judgment. We find neither of these contentions accurate and believe that the holding of Anderson, supra, has been misconstrued by Gregory and Appel.

T.R. 12(H)(2) permits a defense of failure to state a claim to be made by a T.R. 12(C) motion for judgment on the pleadings, and the practice is substantiated in case law. Anderson v. Anderson, supra; DeHart v. Anderson (4th Dist.1978) 178 Ind.App. 581, 383 N.E.2d 431; Mills v. American Playground Device Co. (2nd Dist.1980) Ind.App., 405 N.E.2d 621. However, we find no support for Gregory and Appel's contention that a 12(C) motion must necessarily be treated as a 12(B)(6) motion where the responsive pleading does not raise, as a defense, failure to state a claim upon which relief may be granted. We agree that where a 12(B)(6) defense is raised by a 12(C) motion for judgment on the pleadings, the court must treat the motion pursuant to 12(B)(6) and accord the non-moving party ten days to amend as a matter of right. We do not agree, however, that a 12(C) motion which does not address the sufficiency of the complaint must, nonetheless, be treated as a 12(B)(6) motion. ¹ The Ducks did not challenge the sufficiency of Gregory and Appel's complaint to state a claim upon which relief may be granted. Therefore, Gregory and Appel was not entitled to amend on this basis. ² The trial court acted properly in refusing to treat the Ducks' motion for judgment on the pleadings as a 12(B)(6) motion. Gregory and Appel's amended complaint was properly refused.

II.

Gregory and Appel contends that the grant of the 12(C) motion was in fact a summary judgment pursuant to T.R. 56, and was contrary to law.

It is argued that the court could not have granted the motion for judgment in this instance, without looking beyond the pleadings themselves to supporting materials not contained in the pleadings. These "extraneous" materials are Gregory and Appel's own exhibits "A", "B", and "C", i.e. Duck's letter, and two contracts for the purchase of real estate. Gregory and Appel contends that because the court necessarily looked to these documents in making its determination, its judgment was not on the pleadings alone, but was rather a summary judgment pursuant to T.R. 56 which permits the court to consider a variety of extraneous matters such as affidavits, interrogatories and depositions.

A 12(C) motion for judgment on the pleadings may be properly granted where there are no genuine issues of material fact. A party moving for judgment on the pleadings, for the purpose of the motion, admits the truth of the factual allegations contained in the non-moving party's pleading, and asserts that he is entitled to judgment as a matter of law. Claise v. Bernardi (1st Dist.1980) Ind.App., 413 N.E.2d 609; Thompson v. Genis Building Corp. (3d Dist.1979) Ind.App., 394 N.E.2d 242.

When considering a 12(C) motion directed to the merits, the court is confined solely to the pleadings to make the determination. Because it is seldom possible for a court to make a determination on the pleadings alone, the court often looks beyond the pleadings to extraneous evidence. When this is necessary, T.R. 12(C) provides that the motion is to be treated as one for summary judgment pursuant to T.R. 56. ³ Therefore, if the trial court, in ruling on a motion for judgment on the pleadings, considers matters outside the pleadings, the motion is automatically converted into one for summary judgment and will be reviewed as such by the court on appeal. Tanasijevich's Estate v. City of Hammond (3d Dist.1978) 178 Ind.App. 669, 383 N.E.2d 1081; Union State Bank v. Williams (1st Dist.1976) 169 Ind.App. 345, 348 N.E.2d 683.

Trial Rule 9.2(A) provides that written instruments upon which a pleading is founded must be included in or filed with the pleading. The complaint here clearly and unmistakably alleges that the contract upon which the lawsuit is premised consists of the Duck letter (Exhibit A) which is the offer, Exhibit B which is an acceptance, and Exhibit C which is an amended acceptance. All three of those exhibits were attached to the complaint and were specifically "made a part of the complaint." Record p. 8.

The case before us does not involve matters extraneous to the pleadings. The Motion is not therefore one which, under T.R. 12 must be "treated as one for summary judgment." See footnote 3, supra. In the context of this issue, the motion is a 12(C) Motion for Judgment on the Pleadings.

When the Court of Appeals reviews a grant or denial of motion for judgment on the pleadings it must determine that no genuine issue of material fact existed and that the trial court properly applied the law. Moreover, for the purpose of the motion, the moving party admits all facts well pleaded, and all reasonable inferences are to be drawn in favor of the non-moving party. Claise v. Bernardi, supra, 413 N.E.2d 609; Indiana Insurance Co. v. Ivetich (3d Dist.1983) Ind.App., 445 N.E.2d 110; Hurst v. Board of Commissioners of Pulaski County (3d Dist.1983) Ind.App., 446 N.E.2d 347.

Gregory and Appel contends that it was improper for the court to consider the exhibits because they were unsworn and uncertified. While a party may properly plead alternative or contradictory theories, he may not repudiate by contrary assertions that which he has averred in his pleadings to be true. That is, a party may not generally assume successive positions in the course of the same litigation with respect to the same fact or set of facts which are inconsistent and mutually contradictory. Royal Ins. Co. Ltd., of Liverpool v. Stewart (1921) 190 Ind. 444, 129 N.E. 853, 857. We hold that Gregory and Appel is estopped to deny the authenticity of its own documentary exhibits for the purpose of a motion for judgment. In this case, the exhibits were properly considered by the court for the purpose of the Ducks' motion.

Our next inquiry is whether the trial court erred in granting judgment because an issue of material fact remained. Gregory and Appel argues that the existence of a contract for the sale of real estate is a question of material fact. Moreover, because the court must take as true all allegations of the non-moving party for the purpose of the motion, Gregory and Appel contends that its averment as to the existence of a contract must be presumed true; thus judgment in favor of the Ducks was improper.

Gregory and Appel correctly...