Runkle v. Runkle

• Court: Indiana Appellate Court
• Writing for the Court: Brown
• Citation: Runkle v. Runkle, 916 N.E.2d 184 (Ind. App. 2009)
• Decision Date: 28 October 2009
• Docket Number: No. 49A05-0904-CV-200.,49A05-0904-CV-200.
• Parties: Susan (Wood) RUNKLE, Appellant-Plaintiff, v. Max A. RUNKLE, Fifth Third Bank, Indiana (Central), and Jodi M. Davis, Appellees-Defendants.

916 N.E.2d 184

Susan (Wood) RUNKLE, Appellant-Plaintiff, v. Max A. RUNKLE, Fifth Third Bank, Indiana (Central), and Jodi M. Davis, Appellees-Defendants.

No. 49A05-0904-CV-200.

Court of Appeals of Indiana.

October 28, 2009.

Neal F. Eggeson, Jr., Eggeson Appellate Services, Indianapolis, IN, Attorney for Appellant.

Michael F. Vertesch, Indianapolis, IN, Angela F. Parker, Gregory A. Bullman, Andrews, Harrell, Mann, Carmin & Parker, P.C., Bloomington, IN, Attorneys for Appellees.

OPINION

BROWN, Judge.

Susan Runkle appeals the trial court's grant of summary judgment to Fifth Third Bank and Jodi Davis and the trial court's grant of summary judgment to Max Runkle. Susan raises three issues, which we revise and restate as:

I. Whether the trial court erred by granting summary judgment to Max; and

II. Whether the trial court erred by granting summary judgment to Fifth Third Bank and Davis.

We affirm in part, reverse in part, and remand.

The relevant facts follow. Susan and Max were married in 1973. At some point, Max obtained an equity loan from Fifth Third Bank. Davis was an employee of Fifth Third Bank and was "the notary on the loan." Appellant's Appendix at 84. On August 12, 2002, Susan filed a petition for dissolution of marriage in Johnson County.¹ On May 13, 2003, Max filed a Verified Financial Declaration, which contained the following under the headings "REAL ESTATE" and "Marital Residence:"

Name of lender first mortgage: Fifth Third Bank

Name of lender second mortgage: Fifth Third Bank

Id. at 75.² At some point, Susan contacted Fifth Third Bank and discovered that the signature on the equity loan did not match the signature on her signature card at Fifth Third Bank. On June 18, 2004, the trial court entered a decree of dissolution, which ordered that Max was liable for the entire amount of $18,740 due under the equity loan. The decree stated in part:

The Court does note that [Susan] has alleged that [Max] improperly executed her name to a second mortgage. Inasmuch as the parties have agreed that the indebtedness secured by such second mortgage is a marital debt, the allegation has not been taken into account in the division of the marital estate. In addition, [Susan] asserts that [Max] improperly reactivated certain credit cards post-legal separation. The debts have been allocated to [Max]. [Susan]'s assertions are more appropriately a subject matter of other proceedings.

Id. at 114.

On June 3, 2005, Susan filed a complaint against Max, Fifth Third Bank, and Davis in Marion County. Susan alleged in Count I of her complaint that Max committed forgery and conversion and that he intended to defraud her. Susan alleged in Count II that Davis and Fifth Third Bank committed negligence. In Count III, Susan alleged that Fifth Third Bank breached its contractual and fiduciary duties.

On August 30, 2005, Max filed a motion to dismiss and argued that the trial court lacked subject matter jurisdiction because Susan's claims were "barred by the doctrine of res judicata/collateral estoppel" because the issue was addressed in the dissolution action. Id. at 38. Max attached an affidavit to his motion to dismiss and a number of exhibits including the dissolution decree. Susan filed a response to Max's motion to dismiss and attached exhibits including the dissolution decree. On February 17, 2009, the trial court granted Max's motion to dismiss "because [Susan]'s claim against [Max] is barred by the doctrine of collateral estoppel/issue preclusion." Id. at 24.

In August 2005, Fifth Third Bank and Davis filed a motion to dismiss Count III of Susan's complaint, which alleged breach of contract. In May 2006, the trial court granted Fifth Third Bank and Davis's motion. In November 2007, Fifth Third Bank filed a motion for summary judgment on the remaining count. In February 2008, Susan filed a response to Fifth Third Bank's motion for summary judgment, a designation of evidence, and material issues of fact. Fifth Third Bank filed a motion to strike Susan's response, designation of evidence, and material issues of fact as untimely. The trial court granted Fifth Third Bank's motion.

In February 2009, the trial court granted Fifth Third Bank's motion for summary judgment as follows:

FINDINGS OF FACT, CONCLUSIONS OF LAW AND GRANTING OF SUMMARY JUDGMENT

On October 15, 2008, this matter came on for a hearing on Defendant, Fifth Third Bank's Motion for Summary Judgment against [Susan]. Fifth Third Bank's Motion requests judgment in Fifth Third Bank's favor on two (2) grounds: (1) that [Susan] filed her Complaint after the statute of limitation expires [sic], and (2) that [Susan] has failed, in response to Fifth Third Bank's discovery requests, to produce evidence to show that she can prove damages in this case.

At the hearing, [Susan] appeared by counsel, Neal Eggeson. Defendant, Fifth Third Bank, Indiana and Jodie[³] M. Davis, appeared by counsel, Greg Bullman. Defendant, Max Runkle, appeared in person and by counsel, Michael Vertesch and Jeff Eggers. Oral arguments of counsel were heard and considered. The Court, being duly advised in the premises and having reviewed the proposed entries provided by counsel, now makes the following Findings of Fact, Conclusions of Law and Summary Judgment:

Preliminary Matters

1. By its Order of July 8, 2008, this Court struck as untimely the Response, Designation of Evidence, and Material Issues of Fact that [Susan] filed on February 15, 2008 in opposition to Fifth Third Bank's Motion for Summary Judgment.

2. The only evidence before this Court for ruling on this Motion for Summary Judgment is the evidence that has been designated by Fifth Third Bank.

Findings and Conclusions on Statute of Limitations Issue

3. On June 3, 2005, [Susan] filed her Complaint against Defendants, Max [], Fifth Third Bank, Indiana and Jodie M. Davis. This case is ancillary to the divorce case of the parties filed in Johnson County under Cause Number 41D01-0208-DR00130.

4. The focus of [Susan]'s Complaint concerns the execution of an "Open-End Mortgage"; otherwise known as the "Second Mortgage" or "Home Equity Line" which was obtained by [Max] on November 10, 2000.

5. Defendant, Fifth Third Bank's, Motion for Summary Judgment argued that the negligence action brought against it by [Susan] is barred by the applicable two (2) year Statute of Limitations outlined in I.C. 34-11-2-4.

6. On May 13, 2003, [Max] signed and filed a "Verified Financial Declaration Of Husband/Father" in a dissolution proceeding against [Susan] that was pending in the Johnson Superior Court case.

7. The financial declaration disclosed the Open-End Mortgage; otherwise known at [sic] the "Second Mortgage.["] The Financial Declaration states:

Name of lender first mortgage: Fifth Third Bank

Name of lender second mortgage: Fifth Third Bank

8. [Susan] was represented by counsel during the dissolution proceeding.

9. [Max]'s counsel served a copy of the Verified Financial Declaration of [Max] on [Susan]'s counsel. In Response to a request for Admission, [Susan] admitted that her attorney did in fact receive a copy of the Financial Declaration.

10. [Susan]'s attorney in the divorce case was [Susan]'s agent for the purposes of receiving documents that were filed in the dissolution action.

11. The two (2) year Statute of Limitations began to run when Plaintiff knew, or in the exercise of ordinary diligence, could have discovered that she sustained an injury as the result of the alleged wrongful act of another, namely [Max].

12. [Susan] knew or should have known about the Second Mortgage by May 13, 2003 when the Financial Declaration was filed.

13. However, [Susan] did not file her Complaint in this cause until June 3, 2005, which was two (2) years and three (3) weeks after she learned about the Second Mortgage.

14. [Susan]'s Complaint, therefore, was late and is barred by I.C. 34-11-2-4.

Findings and Conclusions on Damages Issue

15. Fifth Third Bank served Interrogatories and Requests to Produce on [Susan], which, asked [Susan] to "itemize in complete detail" how the Second Mortgage issued by Fifth Third Bank had damaged her. [Susan] failed to produce evidence in response to Fifth Third Bank's discovery requests that she has been damaged by acts of Fifth Third Bank.

16. As noted above, [Susan]'s response was stricken from the record.

17. [Susan]'s remaining assertion from her discovery responses was that the Second Mortgage diminished her marital estate.

18. [Susan] claimed that the outstanding balance on the Second Mortgage created an $18,741.00 debt for the marital estate, and believed that her share of the estate in the divorce order was reduced by one-half (1/2) of that amount of $9,370.00. However, the Second Mortgage did not create a debt for [Susan]'s portion of the marital estate alone. Both parties were affected. The cash generated from the loan or its equivalent became an asset of the marital estate. Thus, while [Susan] is correct that the Second Mortgage created a debt of the entire marital estate, the estate received, in exchange, an asset of equal value.

19. Further, the allocation of assets and debts to each of the parties from the marital estate in the Johnson County divorce case is res judicata. The parties agreed to divide their assets and debts equally in the divorce.

20. Notwithstanding these facts, [Susan]'s request for damages also dealt with what happened after the Second Mortgage was issued. She claimed her credit rating had been harmed because her credit scores were pulled without her permission, that the Bank had turned her down for a credit card, and that she was unable to secure a lease in her own name; none of which she was able to prove. [Susan] did not establish the necessary elements of damage in her negligence claim against the Bank.

Judgment

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that

[Susan]'s cause of action against Defendants, Fifth Third Bank, Indiana and Jodie M. Davis, is barred by I.C. 34-11-2-4 and...