Kettery v. Heck
| Decision Date | 17 March 1992 |
| Docket Number | No. 73A04-9104-CV-109,73A04-9104-CV-109 |
| Citation | 587 N.E.2d 1365 |
| Parties | Terry L. KETTERY and Lisa Kettery, Appellants-Defendants, v. Julie A. HECK (Power), Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
J. Bradley Schooley, Shelbyville, for appellants-defendants.
Charles T. Bate, Bate, Harrold & Meltzer, Shelbyville, for appellee-plaintiff.
Defendants-Appellants, Terry and Lisa Kettery, appeal from the judgment entered in favor of the Plaintiff-Appellee, Julie A. Heck. We affirm.
The Ketterys present seven (7) issues for our review, which we consolidate and restate as follows:
I. Did the trial court err in determining "Terry Kettery breached the terms of the Land Contracts of August 7, 1981, and April 30, 1985, by his failure to pay real estate taxes due and owing on the 4.13 acre tract," and that "Terry Kettery's failure to pay real estate taxes ... was the proximate cause of the real estate being sold at tax sale"?
II. Did the trial court err in granting judgment for Heck on Count II of her Complaint?
In 1981, Heck entered into an agreement to "exchange" real estate with Terry and Karen Kettery. Heck received the Ketterys' residence in Indianapolis; the Ketterys received Heck's residence on 1 acre in Shelby County, and they would purchase the remaining 4.13 acres from Heck under a land contract with a balloon payment due on April 30, 1985. The contract specifically provided that the Ketterys "shall pay the taxes on the real estate beginning with the November installment of 1981 taxes and all installments of taxes payable thereafter."
Terry and Karen were divorced in 1982. Terry then purchased Karen's interest in the 1 acre tract and the land contract in early 1984. Karen deeded her interest in the tract, and assigned her interest in the land contract, to Terry on February 24, 1984.
In July of 1986, Terry married Lisa Kettery. Lisa had been living with Terry on the 1 acre tract since July of 1983. They both worked for Allison Division of General Motors Corporation in Indianapolis.
Terry was unable to make the balloon payment on the land contract due in 1985. Heck did not sue; rather, she agreed to a new land contract with Terry, whereby the balance due was amortized and would be repaid with interest over a 10 year period. As security for the debt, Terry then gave Heck a mortgage on the 1 acre tract. This new contract, like the old one, provided that Terry would pay all of the real estate taxes on the property.
Terry failed to pay any of the real estate taxes due on the 4.13 acre tract of land. He did not receive notice of any real estate tax deficiency, tax sale, or that taxes were due and owing on the property. Further, the county auditor sent notices of the tax delinquency and tax sale to Heck at her old address--R.R. # 1, Box 363A, Fountaintown, Indiana. These notices were sent by certified mail, and were returned to the auditor as undeliverable. Heck did not receive any tax statements for the property during the time in question, or notice of any real estate tax deficiency or tax sale.
Charles and Margaret Kocher purchased the 4.13 acre tract at a tax sale held on August 12, 1985. After the two year redemption period expired, the Kochers were issued a tax deed for the property, which they recorded on September 30, 1987. They purchased the property for $107.86.
In September, 1987, the Kochers informed the Ketterys that they now owned the 4.13 acre tract. The Ketterys did not notify Heck about the tax sale or that the Kochers now owned the tract of land, but instead sought legal counsel. On October 29, 1987, Lisa Kettery purchased the Kochers' interest in the 4.13 acres for $3,250. On November 4, 1987, the Ketterys' counsel notified Heck of the recent developments by letter, stating in part:
It is apparent that you cannot possibly perform your obligations under the terms of the contract and no longer hold any title to the subject real estate. I have advised Mr. Kettery to declare the contract to be in breach; cease all payments under the contract and demand that you make restitution to him for the Heck responded by filing a two-count Complaint. Count I was directed against Terry; it alleged breach of the land contract and sought to foreclose the mortgage on the 1 acre tract. The amount owed under the contract was alleged as $16,363.85. Count II was directed against Terry and Lisa, and alleged they "intentionally concealed from [Heck] the fact that Terry had not paid the real estate taxes," and "conspired to defraud [Heck] by intentionally concealing the aforementioned facts from [Heck] and by deeding said real estate to Lisa Kettery, attempting to make it impossible for [Heck] to perform under the contract."
payments which he has made under its terms which are approximately $7,700.00.
The bench trial occurred on September 11, 1990. After taking the matter under advisement, the trial court issued Findings of Fact, Conclusions of Law and Judgment, which state in part:
CONCLUSIONS OF LAW
* * * * * *
2. Terry Kettery breached the terms of the Land Contracts of August 7, 1981, and April 30, 1985, by his failure to pay real estate taxes due and owing on the 4.13 acre tract from November 1981.
3. Terry Kettery's failure to pay real estate taxes as they became due ultimately was the proximate cause of the real estate being sold at tax sale.
4. The real estate mortgage on the 1 acre tract dated April 30, 1985, and recorded March 3, 1988, is a valid security interest and said mortgage should be foreclosed against said real estate ...
5. Equity requires that a judgment be entered on behalf of the plaintiff, plaintiff [sic] Julie A. Heck having sustained her burden of proof under Count I of her amended complaint.
* * * * * *
7. The law is with the plaintiff and against the defendant Terry Kettery upon the issues formed by his counterclaim and defendant Terry Kettery should take nothing by his counterclaim and judgment should be entered against the defendant thereon.
* * * * * *
10. On Count II, the Court finds for the plaintiff and against Lisa Kettery and Terry Kettery and orders the deed reformed accordingly ...
The trial court then entered judgment in favor of Heck for $22,304.92, which "shall be reduced by the $3,250 paid by Lisa Kettery to [the] Kochers." The Ketterys now appeal.
This is an appeal from a judgment entered in a bench trial, and our standard of review on appeal is well-established. Since the trial court entered findings of fact and conclusions of law, we apply the following two-tier standard of review: whether the evidence supports the findings, and whether the findings support the judgment. National Advertising Co. v. Wilson Auto Parts, Inc. (1991), Ind.App., 569 N.E.2d 997, 1000. The court's findings and conclusions will be set aside only if they are "clearly erroneous," that is, that the record contains no facts or inferences supporting them. W & W Equipment Co., Inc. v. Mink (1991), Ind.App., 568 N.E.2d 564, 566, reh. denied, trans. denied; Keystone Square v. Marsh Supermarkets, Inc. (1984), Ind.App., 459 N.E.2d 420, 422. A judgment is "clearly erroneous" when a review of the record leaves us with a firm conviction that a mistake has been made. Porter County Board of Zoning Appeals v. Bolde (1988), Ind.App., 530 N.E.2d 1212, 1215. We will not reverse unless the trial court's finding was clearly against the logic and effect of the facts, or reasonable, probable deductions to be drawn therefrom. National Advertising, 569 N.E.2d at 1000; Eyler v. Eyler (1986), Ind., 492 N.E.2d 1071, 1073.
The Ketterys first argue "the most significant error of the trial court is [its determination] that 'Terry's failure to pay real estate taxes as they came due ultimately was the proximate cause of the real estate being sold at tax sale.' " In particular, the (a) Taxes. Purchaser shall pay the taxes on the Real Estate beginning with the real estate taxes due and payable on November, 1981, and all installments of taxes payable thereafter. Vendor covenants and agrees to pay, prior to delinquency, all prior real estate taxes on the Real Estate. Purchaser, upon written notice to Vendor and at Purchaser's expense, may contest on Vendor's and Purchaser's behalf, any changes in the assessed valuation of the Real Estate. Vendor shall forward or cause to be forwarded to Purchaser a copy of all statements for real estate taxes on the Real Estate payable by Purchaser, as received, and Purchaser shall provide to Vendor upon request evidence of payment of such taxes.
Ketterys argue that Heck had an affirmative duty under the terms of the land contracts "to obtain and forward copies of the tax statements" to them, citing paragraph 2(a):
[Emphasis supplied.]
This appeal hinges on the meaning of the phrase: "Vendor shall forward or cause to be forwarded to Purchaser a copy of all statements for real estate taxes on the Real Estate payable by Purchaser, as received." The Ketterys argue that the phrase means that Heck was required to obtain and forward to them all of the tax statements for the property, and that they were to pay the real estate taxes "as received," or as the tax statements were received, from Heck. On the other hand, Heck argues...
To continue reading
Request your trial
-
Western Ohio Pizza, Inc. v. Clark Oil & Refining Corp.
...standard of review: whether the evidence supports the findings, and whether the findings support the judgment. Kettery v. Heck, 587 N.E.2d 1365, 1367 (Ind.Ct.App.1992), trans. denied. The court's findings and conclusions will be set aside only if they are clearly erroneous, that is, that th......
-
CSX Transp., Inc. v. Rabold
...standard of review: whether the evidence supports the findings, and whether the findings support the judgment. Kettery v. Heck, 587 N.E.2d 1365, 1367 (Ind.Ct.App.1992), trans. denied. The court's findings and conclusions will be set aside only if they are clearly erroneous, that is, that th......