ITT Indus. Credit Co. v. R.T.M. Development Co., Inc., 71A03-8610-CV-00297

• Decision Date: 26 August 1987
• Docket Number: No. 71A03-8610-CV-00297,71A03-8610-CV-00297
• Citation: 512 N.E.2d 201
• Parties: ITT INDUSTRIAL CREDIT COMPANY, Appellant-Plaintiff, v. R.T.M. DEVELOPMENT CO., INC., Ray T. Miller, Jr., Ann Miller, Eugene E. Zimmer, Jane Zimmer, Fred E. Davis, Helen E. Davis, Earl E. Bostic, Margaret Bostic, Paul M. Gillmore, Carl J. Reinke & Sons, Inc., and Ritschard Bros., Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

Page 201

512 N.E.2d 201

ITT INDUSTRIAL CREDIT COMPANY, Appellant-Plaintiff, v. R.T.M. DEVELOPMENT CO., INC., Ray T. Miller, Jr., Ann Miller, Eugene E. Zimmer, Jane Zimmer, Fred E. Davis, Helen E. Davis, Earl E. Bostic, Margaret Bostic, Paul M. Gillmore Carl J. Reinke & Sons, Inc., and Ritschard Bros., Inc. Appellees-Defendants.

No. 71A03-8610-CV-00297.

Court of Appeals of Indiana Third District.

Aug. 26, 1987.

F. Richard Kramer, Rebecca Hoyt Fischer, Kramer & Murphy, P.C., South Bend, for appellant-plaintiff.

James F. Groves, Edward W. Hardig, Hardig, Lee & Groves, South Bend, for appellees-defendants Eugene E. Zimmer & Jane Zimmer.

STATON, Judge.

Eugene and Jane Zimmer (the Zimmers) are the owners of real estate in South Bend, Indiana. That real estate was sought by R.T.M. Development Co., Inc. (RTM) for its plans to build a Hilton Hotel. RTM offered to buy the Zimmers' property for $100,000.00, and to that end the Zimmers executed a warranty deed with the words "Not valid until receipt of full payment" written across the top of it.

RTM also sought financing from ITT Industrial Credit Corporation (ITT). Part of ITT's security for the loan was a first mortgage on the Zimmers' property. The RTM-ITT agreement was executed on November 7, 1980, but the closing between RTM and the Zimmers did not take place until November 12, 1980. At some time prior to the Zimmers' closing, the words on the deed "Not valid until receipt of full payment" were scratched out and the Zimmers' initials were written nearby.

In an action by ITT against RTM and to foreclose a real estate mortgage, the trial court ruled that the Zimmers' warranty deed did not convey any interest to RTM because they did not receive full payment. Therefore, ITT had no claim against the Zimmer property.

ITT has appealed that portion of the trial court's judgment dealing with the Zimmers' property and presents the following issues for our review:

1) Whether the judgment was contrary to the evidence;

2) Whether the Zimmers created an equitable lien on the property by writing the words "Not valid until receipt of full payment" on the deed; and

3) Whether the Zimmers were estopped from asserting the invalidity of the deed because they retained benefits in exchange for the deed.

Affirmed.

I. Evidence

The trial court made specific findings of fact and conclusions of law. The purpose of special findings is to provide the parties and the reviewing court with the theory upon which the case was decided. Kimbrell v. City of Lafayette (1983), Ind.App., 454 N.E.2d 73, 74. We afford special findings a two-tier standard of review: first, we must determine if the evidence supports the findings; and second, we must determine whether the findings support the judgment. Keystone Square v. Marsh Supermarkets, Inc. (1984), Ind.App., 459 N.E.2d 420, 422, trans. den. If we conclude that the special findings support the judgment and are not clearly erroneous, the judgment will be affirmed.

ITT argues that a handwriting expert, originally retained by the Zimmers, opined that the initials near the scratched out words at the top of the warranty deed were written by the Zimmers. He also testified that the pen lines in the scratched out portion matched the pen lines in the initials. Since the trial court found specifically that the Zimmers did not scratch out the words, ITT concludes that the judgment was contrary to the evidence.

The evidence regarding the deed was conflicting. While the handwriting expert testified that in his opinion the Zimmers initialed the top portion of the deed and that the pen lines in the initials and the scratches were similar, the Zimmers testified that they did not scratch out the words on the deed. Moreover, they testified that after the deed was delivered to RTM's agents, with the wording intact, they did not see the deed again or learn that those words were scratched out until after ITT filed this lawsuit. It was for the trier of fact to resolve conflicting evidence, and this Court will not reweigh evidence nor reassess witness credibility. We have considered the evidence from a perspective most favorable to the judgment, as required by Indiana Rules of Procedure, Trial Rule 52(A), and we conclude that the Zimmers' testimony is evidence in the record that supports the trial court's findings. Given our standard of review of special findings, we defer to the trial court's findings and its judgment on this issue must be sustained. Benefit Trust Life Ins. Co. v. Waggoner (1985), Ind.App., 473 N.E.2d 646, 648.

II. Equitable Lien

ITT also argues that, at most, the words atop Zimmers' deed created an equitable lien. Lucas v. Hendrix (1883), 92 Ind. 54, 57 (express reservation in a conveyed deed creates an equitable mortgage). This argument misses the mark however, because the trial court expressly concluded that the Zimmers did not part with dominion over their deed with the intention to pass title. In short, we need not address the legal effect of the words written atop the deed since the trial court concluded that Zimmers' deed was never delivered and that no right, title or interest passed from them to RTM or ITT.

It is well settled hornbook law that the extent of the interest conveyed, if any, is governed by the intentions of the parties. Richard S. Brunt Trust v. Plantz (1983), Ind.App., 458 N.E.2d 251, 252. It is also well known that the question of delivery is one for the trier of fact. Klingaman v. Burch (1940), 216...