HERITAGE DEVELOPMENT OF IND., INC. v. Opportunity Options, Inc.
| Decision Date | 26 August 2002 |
| Docket Number | No. 29A05-0112-CV-541.,29A05-0112-CV-541. |
| Citation | 773 N.E.2d 881 |
| Court | Indiana Appellate Court |
| Parties | HERITAGE DEVELOPMENT OF INDIANA, INC. Appellant, v. OPPORTUNITY OPTIONS, INC.; David A. Carter; Warren E. Stibbins, Trustee of the Warren E. Stibbins, M.D., Inc. Profit Sharing Trust; Warren E. Stibbins; David A. Carter and David E. Quimby; Carter, Quimby, Schemmel & Associates, Inc., Pension Plan; and G & C Real Estate Holdings, LLC, Appellees. |
Steven C. Earnhart, Thrasher Buschmann, Griffith & Voelkel, Indianapolis, IN, Attorneys for appellant.
Erick D. Ponader, Mary T. Doherty, Sommer & Barnard Indianapolis, IN, Attorneys for Appellee.
Heritage Development of Indiana, Inc., ("Heritage") plaintiff below, appeals the Hamilton County Superior Court's grant of summary judgment in favor of Opportunity Options, Inc. ("Opportunity Options"); David A. Carter, individually ("Carter"); Warren E. Stibbins, Trustee of the Warren E. Stibbens, M.D., Inc. Profit Sharing Trust; Warren E. Stibbens, individually ("Stibbens"); David E. Quimby ("Quimby"), individually; Carter, Quimby, Schemmel & Associates, Inc. Pension Plan; Carter, Quimby, Schemmel & Associates, Inc. (collectively, "the Appellees"); and G & C Real Estate Holdings, LLC ("G & C").1
We affirm.
Heritage presents the following consolidated issues for our review: (1) whether the trial court erred by striking portions of the affidavit of Heritage vice president Dean P. McFarland ("McFarland"), and (2) whether the trial court erred by entering summary judgment in favor of the Appellees.
On July 18, 2000, following discussions between Heritage and Carter, Heritage executed a Purchase Agreement in which Heritage offered to purchase 110 acres of real estate from several individuals and entities identified in the agreement. The Agreement identified the selling owners as Opportunity Options; Stibbens, both individually and as trustee of the Warren E. Stibbens, M.D., Inc. Profit Sharing Trust; Carter; and Quimby. The real estate was divided into two parcels. One of the parcels, described as "Parcel A", consisted of eighty acres located in Hamilton County, and the other, described as "Parcel B", consisted of thirty acres located in Hancock County. While Hamilton and Hancock Counties border each other, it appears that the parcels were not contiguous. Heritage offered to buy the parcels for $20,000 per gross acre, for an estimated $1,600,000 for Parcel A, and $600,000 for parcel B. Closing on the deal was to occur not later than 190 days after the date the Agreement was accepted.
The Agreement provided that Heritage's offer to buy the property would expire if not accepted by July 28, 2000. On July 21, 2000, Carter executed the acceptance page of the Agreement on behalf of himself individually, on behalf of Opportunity Options as its president, and for Carter, Quimby and Associates, Inc. as its president. According to Carter and the other appellees, however, Carter did not own the property, and Quimby and Associates had been administratively dissolved by the Indiana Secretary of State in 1990. In fact, the two parcels did not have the same owners. Rather, Carter and the rest of the appellees state that Parcel A, the Hamilton County property, was owned by Opportunity Options, Stibbens (both individually and as trustee of the above-identified trust), and by the Carter, Quimby, Schemmel & Associates, Inc. Pension Plan (of which, according to the appellees, Carter was a trustee). Parcel B, the Hancock County property, was evidently owned solely by Opportunity Options. Heritage does not dispute the Appellees' claims in this regard. Thus, of the true owners of the two parcels, only Opportunity Options executed the Agreement.
On December 14, 2000, Heritage received a commitment for title insurance for the parcels. The commitment apparently revealed the true identities of the owners of the respective parcels, as well as the fact that, unknown to Heritage, Carter's Opportunity Options sold the Hancock County property to G & C without Heritage's knowledge on October 23, 2000. On December 18, 2000, Heritage filed a complaint and a lis pendens notice in Hancock County seeking damages and specific performance of the Purchase Agreement with respect to Parcel B. Heritage then filed a similar action in Hamilton County the next day, also seeking damages and specific performance of the purchase agreement with respect to Parcel A.
On December 20, 2000, Carter met with Heritage vice president McFarland and tendered a proposed Amendment to Purchase Agreement. The Amendment again identified the "seller" as Opportunity Options, Stibbens (both individually and as trustee of the Warren E. Stibbens, M.D., Inc. Profit Sharing Trust), Carter, and Quimby. According to the proposed Amendment, Carter and his associates acknowledged that "Buyer and Seller entered into a certain Purchase Agreement dated July 18, 2000," and requested that the Agreement be modified to apply only to Parcel A, the Hamilton County property. Despite identifying the individuals and entities listed above as the selling owners, the Amendment provided signature lines for Carter as president of Opportunity Options, for Stibbins (both individually and as trustee) and for Carter and Quimby as trustees of the Carter, Quimby, Schemmel & Associates, Inc. Pension Plan. (App. 279-280.) The Amendment was signed by Stibbins, both in his individual capacity and as trustee, and by Carter and Quimby as trustees. Thus, the Amendment was signed by the remaining owners of the Hamilton County parcel who had not signed the Purchase Agreement. Carter does not appear to have signed the Amendment as president of Opportunity Options. McFarland refused to accept the Amendment, but reiterated that Heritage remained willing to close on both parcels pursuant to the Purchase Agreement. The parties apparently went back and forth, with Carter offering to sell the Hamilton County property alone, and Heritage refusing to proceed unless both parcels were available.
On May 17, 2001, the Appellees filed their Motion for Summary Judgment and supporting materials. The Appellees argued that the Purchase Agreement was unenforceable pursuant to the Statute of Frauds, and that even if the Agreement was enforceable, Heritage was not entitled to specific performance because Heritage refused to purchase the Hamilton County parcel when it was offered. Heritage responded on July 19, 2001. Among the items Heritage designated was McFarland's affidavit. In his affidavit, McFarland stated that Carter told Heritage that Carter was an owner of both parcels, and that he represented the other owners. McFarland further stated that Carter told Heritage that the other owners of the parcels were Opportunity Options, Stibbins (again, both individually and as trustee of his trust), and Quimby, and that Heritage drafted the Purchase Agreement on the basis of Carter's representations. Finally, McFarland stated that when Carter executed the Purchase Agreement on behalf of himself, Opportunity Options and Carter, Quimby and Associates, Inc., he told Heritage that he was authorized to sell the parcels on behalf of the other owners, and that he would subsequently obtain their signatures. The Appellees moved to strike the portions of McFarland's affidavit containing these assertions on the ground that the affidavit failed to establish that McFarland had personal knowledge of the matters in question.
The trial court heard the Appellees' summary judgment motion on August 17, 2001. On October 22, 2001, the trial court granted the Appellees' motion to strike portions of McFarland's affidavit as well as the Appellees' motion for summary judgment. On November 16, 2001, the trial court entered final judgment against Heritage. Heritage now appeals.
The trial court has broad discretion in ruling on the admissibility of evidence. McClyde v. Archdiocese of Indianapolis, 752 N.E.2d 229, 235 (Ind.Ct.App.2001). This discretion extends to rulings on motions to strike affidavits on grounds that they fail to comply with the summary judgment rules. See id.
Trial Rule 56(E) of the Indiana Rules of Trial Procedure provides that affidavits submitted in support of or in opposition to a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The appellees contend that the trial court properly struck the following paragraphs of McFarland's affidavit:
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