Ingoglia v. The Fogelson Companies, Inc.

• Decision Date: 28 November 1988
• Docket Number: No. 64A04-8603-CV-87,64A04-8603-CV-87
• Citation: 530 N.E.2d 1190
• Parties: Augustino INGOGLIA, Rosemarie Ingoglia, Ronald Partyka and Joyce Partyka, Appellants, v. THE FOGELSON COMPANIES, INC., an Illinois Corporation, and William T. Mamelson, Appellees.
• Court: Indiana Appellate Court

Page 1190

530 N.E.2d 1190

Augustino INGOGLIA, Rosemarie Ingoglia, Ronald Partyka and Joyce Partyka, Appellants, v. THE FOGELSON COMPANIES, INC., an Illinois Corporation, and William T. Mamelson, Appellees.

No. 64A04-8603-CV-87.

Court of Appeals of Indiana Fourth District.

Nov. 28, 1988.

Rehearing Denied Jan. 12, 1989.

Edward P. Grimmer, Barber & Sorbello, P.C., Crown Point, for appellants.

Daniel A. Gioia, Spangler Jennings Spangler & Dougherty, P.C., Merrillville, Patrick J. Galvin, Galvin Galvin & Leeny, Hammond, for appellees.

MILLER, Judge.

Plaintiffs Augustino and Rosemarie Ingoglia brought suit in Porter Superior Court against The Fogelson Companies, Inc., developer of their subdivision, and William J. Mamelson, the engineer who designed the storm drainage and water retention systems, for monetary and injunctive relief after their home flooded. Ronald and Joyce Partyka, neighbors whose home also flooded, sought to intervene as plaintiffs but their motion was denied. The Partykas then brought an identical suit against the same defendants in Lake Circuit Court which was venued to Jasper Circuit Court. During the Ingoglias' jury trial in Porter Superior Court, all parties entered into a settlement agreement which was then made the order of both the Porter Superior Court and the Jasper Circuit Court. The Fogelson Companies, Inc. [Fogelson] failed to perform all of its obligations under the two consent judgments. Both homeowners filed petitions to enforce the judgments in their respective courts. Jasper Circuit Court ordered the Partykas' case transferred to Porter Superior Court and consolidated with the pending Ingoglia cause. Porter Superior Court then denied the plaintiffs' petition to enforce the judgment and granted Fogelson's motion to modify judgment, finding Fogelson had substantially performed and its conduct did not invoke the penalty clause of either consent judgment.

The Ingoglias' and Partykas' appeal and raise four issues, which we have restated and consolidated as follows:

I. Whether the Jasper Circuit Court and Porter Superior Court acted without authority in transfering the Partykas' cause from Jasper Circuit Court to the Porter Superior Court and consolidating it with the Ingoglia cause in Porter Superior Court;

II. Whether the findings of fact and conclusions of law in the Porter Superior Court's order of December 6, 1985, were supported by the evidence; and

III. Whether the Porter Superior Court erred as a matter of law in modifying the consent judgment as originally approved and entered by both the Jasper Circuit Court and the Porter Superior Court. ¹

We reverse and remand.

FACTS

Augustino and Rosemarie Ingoglia and Ronald and Joyce Partyka purchased homes and are neighbors in the Pine Island Ridge Subdivision located in Lake County, Indiana. Their homes are located near a stream and a pond. The Fogelson Companies, Inc., an Illinois corporation, developed Pine Island and William T. Mamelson designed the storm drainage and water retention systems. After moving in, the Ingoglias and Partykas discovered their homes and property flooded during heavy storms. Both their homes and their household goods sustained water damage as a result of the flooding.

The Ingoglias and Partykas individually retained the same attorney to represent them. The Ingoglias initially filed suit in Lake Circuit Court against Fogelson and Mamelson, alleging their home and the storm drainage and water retention systems within the subdivision were improperly designed or constructed. The Ingoglias alleged the cause of the flooding problem was that the storm water retention pond located near their home was too small to collect the storm water that accumulated during heavy rainstorms. The Partykas sought to intervene as co-plaintiffs against Fogelson and Mamelson. Both defendants objected and the court sustained the objections. At defendants' request, the Ingoglias cause was venued to Porter County. Partykas then filed their nearly identical complaint in Lake Circuit Court and defendant Fogelson moved for change of venue, striking Porter County and effectively preventing consolidation of the two cases prior to trial. Venue was later perfected to Jasper Circuit Court. Both causes sought money damages for water damage that had occurred in the past and an injunction to provide corrective relief from the flooding problem in the future.

The Ingoglias proceeded to trial in January, 1985. During the second day of jury trial, the four parties reached a settlement which was approved by the Porter Superior Court and made its order. The agreement settled both the Ingoglias' and the Partykas' claims against both Fogelson and Mamelson and provided it was to be filed with the Jasper Circuit Court. The Porter Circuit Court order of January 30, 1985, reads in pertinent part:

"The parties have reached an agreement to amicably resolve this case and have agreed and stipulated that the settlement of all the claims and disputes shall be as follows and pray the Court to enter an order in accordance with this agreement and stipulation:

1. The Defendant Fogelson Companies, Inc., or its principal shareholder shall immediately issue a check in the amount of $35,000.00 (thirty-five thousand dollars) to Augustino and Rosemarie Ingoglia and Ronald and Joyce Partyka, and the same shall be delivered immediately to the attorney for the Plaintiffs.

2. The Defendant William T. Mamelson or its representative shall issue a check in the amount of $15,000.00 (fifteen thousand dollars) to the same aforementioned individuals, said check to be delivered to the Plaintiffs' attorney ...

3. Upon receipt of the foregoing $50,000.00 (fifty thousand dollars), the attorney for the Plaintiffs shall cause to be entered ... partial satisfaction of judgment ...

4. The Defendants further agree that they shall cause to be designed and constructed a storm drainage modification relative to the real estate ... Said storm drainage system is to be designed by William T. Mamelson so as to meet the design criteria established and agreed to by the parties and set forth in Exhibit A attached hereto. Mr. Mamelson will immediately undertake to cause plans for the requisite engineering of the proposed system. Upon completion of said plans, the same shall be submitted to Patrick Haas and Associates for his review and approval. Thereafter, the plans shall be submitted to the necessary and appropriate municipal authorities of the Town of Schererville and the Pine Island Ridge Community Association for any required approvals. After said approvals have been obtained, the Fogelson Companies, Inc., shall cause to be constructed at its expense by a contractor of its choice the modified improvements pursuant to the plans prepared by Mr. Mamelson.

The time schedule for the foregoing shall be as follows:

A. Mr. Mamelson shall complete the preparation of the plans by March 1, 1985, and the said plans shall be delivered to Patrick Haas on or before that date.

B. Patrick Haas shall have seven days after receipt of the plans to review and approve same.

C. Any proposed revisions by Haas shall be worked out and completed by William T. Mamelson within two weeks thereafter.

D. Upon approval of the plans by Haas and Mamelson, they shall be immediately delivered to the appropriate authorities of the Town of Schererville and the Homeowners Association for their review and acceptance.

E. Following the approval and acceptance by the appropriate authorities of the Town of Schererville and the Homeowners Association, the Fogelson Companies, Inc., will enter into a contract for the construction of the improvements within 21 days.

F. Construction of the work on the new pond shall be completed on or before July 15, 1985, and any remaining items shall be completed as soon as practical thereafter, but not later than September 15, 1985. The Fogelson Companies, Inc., agrees to pay a per diem penalty of $175.00 (One hundred seventy-five dollars) to Mr. and Mrs. Ingoglia and Mr. and Mrs. Partyka if the construction is not completed by July 15, 1985, completion date shall be extended in the event of any delays caused by acts of God and or extreme weather conditions, if the same have been certified to by the engineer. The Engineer, William T. Mamelson, has further agreed that he will supervise the construction of the improvements contemplated herein. As part of the plans for the improvement contemplated herein, William Mamelson shall establish finished grade levels for Lots 31 and 33 of Pine Island Ridge Subdivision so as not to cause any adverse storm water effect on the adjoining lots, and thereafter a restrictive covenant shall be placed of record on said Lots 31 and 33.

This agreement and the order to be entered hereon is intended to fully satisfy all the obligations of the Defendants with respect to any of the claims being made by the Plaintiffs to this action and by the Plaintiffs in the companion case brought by Mr. and Mrs. Partyka which is pending in Jasper Superior Court. Upon fulfillment of the obligations provided for herein by the Defendants, the Plaintiffs to this action shall execute a release in favor of all of the Defendants in a form satisfactory to the attorneys for said Defendants, which release shall, among other things, fully discharge said Defendants and their assigns and successors from any and all liabilities arising out of the claims made by these Plaintiffs and the Plaintiffs in the Jasper County Superior Court case. Said release shall be binding upon all of said Plaintiffs and their successors in interest to the real estate which they own and which is the subject matter of these respective lawsuits.

The payment of said monies as aforesaid and the completion of the improvements as contemplated herein per the design specifications as approved shall be the full and total obligation and commitment of the Defendants and they shall have no other responsibilities or liabilities...