Hoffman v. Dunn
| Decision Date | 28 August 1986 |
| Docket Number | No. 02A04-8602-CV-60,02A04-8602-CV-60 |
| Parties | Rick HOFFMAN, Appellant (Defendant Below), v. Elaine DUNN and Kaye M. Winebrenner, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Mark D. Ulmschneider, Steele & Ulmschneider, Fort Wayne, for appellant.
Perry D. Shilts, Snouffer, Haller & Colvin, Fort Wayne, for appellee.
Defendant-Appellant Rick Hoffman (Hoffman) appeals the trial court's denial of his motion for summary judgment, claiming a prior action on the same real estate contract bars recovery by Plaintiffs-Appellees Elaine Dunn (Dunn) and Kaye Winebrenner (Winebrenner) under the doctrine of res judicata.
We reverse.
Because we reverse, we address only the following issue:
1. whether the trial court erred in denying Hoffman's motion for summary judgment. Ind. Rules of Procedure, Trial Rule 56(C).
Hoffman is the owner of a mini-mall/strip mall located in Fort Wayne. Dunn and Winebrenner are two of the three partners in Real Estate Unlimited, a purported real estate brokerage firm. The document which forms the basis of this dispute is an exclusive listing contract. It is signed by R.J. Hoffman as "owner" and Real Estate Unlimited as "broker". Dunn signed the contract on behalf of the brokerage firm.
After Hoffman allegedly breached the contract, Real Estate Unlimited filed a complaint for damages with the Allen Superior Court. In its Superior Court complaint, Real Estate Unlimited alleged it was a licensed real estate brokerage entity which entered into an exclusive listing contract with Hoffman on or about February 15, 1985. It alleged Hoffman breached the contract by selling the subject real estate without notifying Real Estate Unlimited. Damages of $7,420 for commission, pre-judgment interest, and attorney fees were requested.
On September 5, 1985, Hoffman filed his motion for summary judgment and supporting memorandum of law. In it, he first claimed Real Estate Unlimited and Dunn were barred from recovering because they were not duly licensed. In support of this position, he submitted the affidavit of Ruth Filippe, an administrative assistant of the State of Indiana's Professional Licensing Agency. Her review of agency records revealed "Elaine Dunn is not now nor has she ever been licensed as a real estate agent or real estate broker in the State of Indiana." Also Filippe's affidavit stated "that according to the records, there is not now, nor has there ever been, a real estate agent or broker's license issued to any business in Fort Wayne, Indiana or Allen County, Indiana under the name of Real Estate Unlimited." Next, Hoffman's memorandum asserted the listing contract was void because it violated the statute of frauds. Finally, Hoffman alleged he was entitled to summary judgment in the Superior Court case because Real Estate Unlimited never performed its contract and never obtained a written offer to purchase the real estate.
Real Estate Unlimited filed a memorandum addressing the issues raised by Hoffman, submitted the affidavits of Dunn and Winebrenner in opposition to Hoffman's motion. A copy of the written partnership agreement was attached to Dunn's affidavit. It indicated James L. Pallick, Winebrenner, and Elaine M. King a/k/a Dunn formed a partnership on August 17, 1982, for the purpose of conducting a real estate business in and around Fort Wayne, Indiana.
With the above evidence before it the Superior Court held a summary judgment hearing. The court then entered the following findings and judgment Matter being under advisement as to Defendant's Summary Judgment, the court now finds that the Plaintiff was partnership that could not qualify for a broker's license because all of its partners were not brokers, that the sales agent obtaining the exclusive listing was not a broker but was a salesperson with license restricted to an affiliation with Kaye Winebrenner--a broker, that the listing contract was not taken in the name of Winebrenner as broker, therefore the suit for commission is not by one who is "duly licensed" under the law. Defendant granted Summary Judgment that Plaintiff take nothing by its complaint. Costs to Plaintiff.
No motion or any other action was taken by either party in the Superior Court case after September 27, 1985.
Thereafter, two of the three individual partners in Real Estate Unlimited filed a new complaint in the Allen Circuit Court on November 18, 1985. On November 26, 1985, the Superior Court decision became a final judgment. On December 11, 1985, Hoffman filed his motion for summary judgment with the Circuit Court, asserting the previous Superior Court decision barred relitigation of the enforceability of the February 15, 1985, contract. Hoffman's claim was based upon the doctrine of res judicata and collateral estoppel. This appeal arises from the denial of Hoffman's motion.
Hoffman claims the trial court erred in denying his motion for summary judgment. He states the issues argued in the Circuit Court case were or could have been decided by the Superior Court in the earlier suit because its decision was on the merits. Thus, he opines, the doctrine of res judicata precludes Dunn and Winebrenner from recovery.
Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Creighton v. Caylor-Nickel Hospital, Inc. (1985), Ind., 484 N.E.2d 1303, 1305-1306.
When reviewing the grant of a motion for summary judgment we stand in the shoes of the trial court. Lafary v. Lafary (1985) Ind.App., 476 N.E.2d 155, 158. We must liberally construe all evidence in favor of the nonmovant and resolve any doubts as to the existence of a genuine issue against the proponent of the motion. Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723, 729. Summary judgment may not be used as a substitute for trial to resolve factual disputes. Even if the trial court believes the nonmoving party will not be successful at trial, where material facts conflict or conflicting inferences are possible from undisputed facts, summary judgment should not be entered. Grimm v. Borkholder (1983), Ind.App., 454 N.E.2d 84, 86.
Hoffman states the Circuit Court suit is barred under the claim preclusion theory of res judicata. It is generally recognized
[T]he basic elements of the doctrine of res judicata are: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the matter now in issue was or might have been determined in the former suit; (3) the particular controversy adjudicated in the former action must have been between the parties to the present suit or their privies; and (4) the judgment in the former suit must have been rendered on the merits.
Biggs v. Marsh (1983), Ind.App., 446 N.E.2d 977, 981; Glass v. Continental Assurance Co. (1981), Ind.App., 415 N.E.2d 126, 128. See also, Indiana University v. Indiana Bonding and Surety (1981), Ind.App., 416 N.E.2d 1275, 1283; Middelkamp v. Hanewich (1977), 173 Ind.App. 571, 364 N.E.2d 1024, 1033.
In M.R. by Ratliff v. Meltzer (1986), Ind.App., 487 N.E.2d 836, we stated:
The branch of res judicata known as "estoppel by judgment" or "claim preclusion" holds the prior adjudication of a cause of action is a bar to future litigation of that claim. D.L.M. v. V.E.M (1982), Ind.App. 438 N.E.2d 1023, 1027; Illinois Central Gulf R.R. Co. v. Parks (1979) 181 Ind.App. 141, 390 N.E.2d 1078, 1080. When claim preclusion applies, every question which was within the issues and might have been proved will be presumed to have been litigated. No further action between the parties, or their privies, will be permitted as to any of the issues. Biggs v. Marsh (1983), Ind.App., 446 N.E.2d 977, 981-982. ... In claim preclusion, the critical question is whether the present claim was within the issue of the first. It has generally been said the test for making this determination is whether identical evidence will support the issues involved in both actions. Biggs, supra, 446 N.E.2d at 982.
There is no contention in the present litigation disputing the first three elements of res judicata. The question here is whether the Superior Court judgment was rendered on the merits. If so, the claim preclusion branch of res judicata is applicable and the Circuit Court action is barred.
A decision with respect to the rights and liabilities of the parties is on the merits where it is based on the ultimate fact or state of facts disclosed by the pleadings or evidence, or both, and on which the right of recovery depends. If the case is brought to an issue, heard on evidence submitted pro and con, and decided by the verdict of a jury or the findings of a court, the judgment rendered is on the merits. However, a...
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