Link v. Breen

Decision Date13 April 1995
Docket NumberNo. 46A03-9401-CV-22,46A03-9401-CV-22
Citation649 N.E.2d 126
PartiesMarie LINK, Appellant-Defendant, v. Dennis BREEN and Mary Breen, Appellees-Plaintiffs.
CourtIndiana Appellate Court

Patrick E. Donoghue, Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, Michigan City, for appellant.

Craig V. Braje, Law Offices of Craig V. Braje, Michigan City, for appellees.


Appellant-defendant Marie Link brings an interlocutory appeal from an order denying her motion for summary judgment in an action brought by appellees-plaintiffs Dennis and Mary Breen (Breens) for damages and rescission of a real estate purchase agreement. The designated facts relevant to this appeal are set forth below.

In May 1990, Link as seller and the Breens as buyers entered into a purchase agreement for the sale of Link's house located in Michigan City, Indiana. The purchase agreement was presented to Link by a representative of the Breens from Long Beach Realty. A Rider was incorporated into the purchase agreement which provided, in pertinent part:


[Link ] warrants that the premises are free from termite or other wood destroying infestation, or damage therefrom. [Link] shall pay for an inspection of the premises by a reputable pest control company, and if infestation is disclosed, [Link ] shall assume all cost of eradicating same and restoring the premises. The inspection required ... shall be completed no less than 14 days prior to closing. The report of the pest control company shall be in writing and a copy provided to [the Breens]."

(Emphasis added.) Franklin Pest Control (FPC) conducted the inspection. FPC surveyed the home and subsequently furnished a report to the Breens stating that there was no termite infestation. However, the report was qualified due to FPC's inability to access the entire house. Upon accepting the report and closing on the house in June 1990, the Breens took possession. After a month of occupation and during remodeling efforts, the Breens discovered termite damage in the home.

In November 1991, the Breens filed a three-count complaint against both Link and FPC alleging inter alia breach of contract and damages for failure to discover and disclose the termite infestation. In response, Link filed a motion for summary judgment against the Breens, which the trial court denied. This interlocutory appeal ensued.

On appeal, Link raises one consolidated issue: whether the trial court erred in denying her motion for summary judgment.

Review of a ruling on summary judgment requires this Court to implement the same standard used by the trial court. This Court must liberally construe all designated evidentiary matter in favor of the non-moving party and resolve any doubt against the moving party. Even if it appears that the non-moving party will not succeed at trial, summary judgment is inappropriate where material facts conflict or undisputed facts lead to conflicting inferences. However, where material facts are not in dispute, the issue is the application of the law to the facts. Fidelity Financial Services v. Sims (1994), Ind.App., 630 N.E.2d 572, 574. Summary judgment based upon construction of a contract is a determination, as a matter of law, that the contract is not so ambiguous that resort must be made to conflicting extrinsic evidence to ascertain the contract's meaning. American States Ins. Co. v. Braden (1993), Ind.App., 625 N.E.2d 1252, 1255. An ambiguity will be found only if reasonable persons upon reading the contract would differ as to the meaning of its terms. Id. Ambiguity is not established simply because one party claims an interpretation contrary to that asserted by the opposing party. Id.

The trial court denied Link's motion finding there to be an issue of material fact as to the application of the merger doctrine, specifically, whether the parties intended the Rider to be merged into the deed as a final repository of their respective obligations or whether such duties survived the deed. Link contends the trial court erred in doing so. Link claims the unambiguous language of the Rider manifests her intent that her obligations to investigate and correct any termite infestation were completed upon closing. She contends any other interpretation would unfairly subject her to liability for termite infestation indefinitely. The Breens insist it was their intent that Link strictly warrant against termites and that Link's duties under the Rider would not arise unless and until their discovery of termites regardless of when that occurs.

The doctrine of merger by deed provides:

"In the absence of fraud or mistake, all prior or contemporaneous negotiations or executory agreements, written or oral, leading up to the execution of a deed are merged therein by the grantee's acceptance of the conveyance in performance thereof."

(Citations omitted.) Thompson v. Reising (1943), 114 Ind.App. 456, 462, 51 N.E.2d 488, 491; See Stoneburner v. Fletcher (1980), Ind.App., 408 N.E.2d 545, 549. The rule is concerned with those rights or things which normally pass to the grantee by deed in the absence of reservations or stipulations; if such rights are not expressly carried forward to the deed, they are eradicated and no action lies in contract. Thompson, 114 Ind.App. at 462, 51 N.E.2d 488. Examples include: reservation of growing crops, easements over land conveyed, possession by the grantor for a limited period of time after title passes, and assumption of mortgage or current taxes. Id. at 462-463, 51 N.E.2d 488. The test of merger is the express or implied...

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20 cases
  • PSI Energy, Inc. v. Home Ins. Co.
    • United States
    • Indiana Appellate Court
    • January 16, 2004
    ...summary judgment is inappropriate where material facts conflict or undisputed facts lead to conflicting inferences." Link v. Breen, 649 N.E.2d 126, 128 (Ind.Ct.App. 1995), trans. denied; see also Gen. Housewares Corp. v. Nat'l Sur. Corp., 741 N.E.2d 408, 412 (Ind.Ct.App.2000) ("On appeal, w......
  • Prime Venturers v. Onewest Bank Grp., LLC
    • United States
    • Court of Special Appeals of Maryland
    • August 29, 2013
    ...promise is allowed to survive closing because the performance is not necessary to the conveyance of real estate. Link v. Breen, 649 N.E.2d 126, 128 (Ind.Ct.App.1995). The Court of Appeals has explained: The general rule is that a deed includes all prior negotiations and agreements leading u......
  • Williams v. Younginer
    • United States
    • Indiana Appellate Court
    • July 26, 2006
    ...488. Generally, these are rights not having to do with title, possession, quality, or emblements of the land conveyed. Link v. Breen, 649 N.E.2d 126, 128 (Ind.Ct.App.1995), trans. denied (citing Doty v. Sandusky, etc., Cement Co., 46 Ind.App. 440, 443, 91 N.E. 569, 571 (1910)). Collateral a......
  • Row v. Holt
    • United States
    • Indiana Supreme Court
    • September 30, 2005
    ...or undisputed facts lead to conflicting inferences." Thayer v. OrRico, 792 N.E.2d 919, 923 (Ind.Ct.App.2003) (quoting Link v. Breen, 649 N.E.2d 126, 128 (Ind.Ct.App.1995), trans. denied). Finally, "[o]ur analysis proceeds from the premise that summary judgment is a lethal weapon and that co......
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