Stevens v. Butler

• Decision Date: 29 August 1994
• Docket Number: No. 43A03-9307-CV-237,43A03-9307-CV-237
• Citation: 639 N.E.2d 662
• Parties: Bonnie STEVENS, Appellant-Defendant Below, v. Michael Brooks BUTLER, Angie L. Butler, Susan M. Thomas, Kris B. Thomas and Indiana Real Estate Commission, Appellees-Co-Defendants/Cross-Claimants Below.
• Court: Indiana Appellate Court

Page 662

639 N.E.2d 662

Bonnie STEVENS, Appellant-Defendant Below, v. Michael Brooks BUTLER, Angie L. Butler, Susan M. Thomas Kris B. Thomas and Indiana Real Estate Commission Appellees-Co-Defendants/Cross-Claimants Below.

No. 43A03-9307-CV-237.

Court of Appeals of Indiana,

Third District.

Aug. 29, 1994.

Transfer Denied Dec. 20, 1994.

Stephen R. Snyder, Donald K. Broad, Jack C. Birch, Beckman, Lawson, Sandler, Snyder & Federoff, Syracuse, for appellant.

Paul D. Refior, Refior Law Office, Warsaw, for appellees Michael Brooks Butler, Angie L. Butler, Susan M. Thomas & Kris B. Thomas.

Pamela Carter, Atty. Gen., Linda M. Robb, James F. Schmidt, Deputy Attys. Gen., Indianapolis, for appellee Indiana Real Estate Com'n.

HOFFMAN, Judge.

Appellant-defendant Bonnie Stevens appeals from a denial of her T.R. 60(B)(1) motion for relief from judgment following a grant of summary judgment in favor of appellees-co-defendants/cross-plaintiffs Michael Brooks Butler and Angie L. Butler; Susan B. Thomas and Kris B. Thomas (collectively all of the above appellees are referred to as "purchasers"). Stevens and the Indiana Real Estate Commission ("Commission") ¹ also appeal from the trial court's order directing payment from the Indiana Real Estate Recovery Fund (Fund) (IND. CODE § 25-34.1-7, et seq.)

The designated evidentiary matter discloses that Stevens is an Indiana licensed real estate broker. Between August 1991 and December 1991, she represented to the purchasers ² that she owned and could convey good title to certain parcels of real estate located in the town of Atwood, Kosciusko County, Indiana. Relying upon these representations and her status as a licensed real estate broker, each purchaser entered into contracts to buy property from her. To secure their purchases, earnest money, which was to be applied to the final price at closing, was forwarded to Stevens.

Stevens failed to initiate closing procedures on the real estate. A subsequent investigation revealed that Stevens did not yet have title to the properties. Rather, she was in the process of purchasing them on land contract from others. Upon discovering this, the purchasers requested a refund of their earnest money deposits. Alternatively, they asked for conveyance of good title to the properties. She did not do either.

Based on the above, the purchasers initiated proceedings against Stevens in the Kosciusko Circuit Court. They filed three count cross-complaints alleging: breach of contract (Count I), fraud (Count II), and conversion (Count III). The purchasers then requested summary judgment on all three counts. At no time did Stevens respond to their motions. At the summary judgment hearing, Stevens conceded liability as to Count I stating, "I have no defense."

At the request of the trial court, the purchasers prepared a proposed order of summary judgment. This order, accepted by the trial court and entered on June 2, 1992, directed summary judgment in favor of the purchasers on all three counts as set forth in the cross-complaints. Stevens did not seek either a motion to correct error or direct appeal from this order.

In July 1992, after obtaining judgment against Stevens, the purchasers notified the Commission, by letter, of their intention to seek recovery under the Fund. In September 1992, the purchasers then filed with the trial court verified applications for an order directing payment from the Fund.

On October 5, 1992, the Commission answered and objected to payment alleging the purchasers' failure to timely notify it, pursuant to IND. CODE § 25-34.1-7-7 (1988 Ed.), of their pending actions against Stevens. On November 5, 1992, the court granted the purchasers' motions and ordered payment from the Fund.

On November 13, 1992, Stevens filed a T.R. 60(B)(1) motion for relief from the judgment. Along with this motion, Stevens filed a motion to reconsider the order of payment. Both motions were denied. This appeal ensued.

Stevens raises two issues on appeal. As restated, they are:

(1) whether the trial court abused its discretion in failing to grant Stevens' T.R. 60(B)(1) motion; and

(2) whether the trial court erred in granting the purchasers' motions for recovery from the Fund.

On appeal, the Commission argues its position as to issue (2) only.

Stevens contends the trial court erred in failing to grant her T.R. 60(B)(1) motion for relief from judgment. Our review of this matter is limited to whether the trial court abused its discretion. Waddell v. Waddell (1992), Ind.App., 588 N.E.2d 601, 602. An abuse of discretion has occurred if the trial court's ruling on Stevens' T.R. 60(B)(1) motion is clearly against the logic and effect of the facts and inferences supporting the judgment for relief. Id.

T.R. 60(B) provides that relief from judgment may be granted for "(1) mistake, surprise, or excusable neglect." T.R. 60(B)(1). To succeed on her claim, Stevens must successfully show not only that one of the above elements exists in the entry of summary judgment, but that a meritorious defense to the judgment exists as well. Waddell, 588 N.E.2d at 602. A meritorious defense is one that would lead to a different result if the case were tried on the merits. State, DNR v. Van Keppel (1991), Ind.App., 583 N.E.2d 161, 162.

In her motion, Stevens alleged the form summary judgment submitted by the purchasers improperly included findings as to fraud, conversion and treble damages which were not reflective of the trial court's verbal order. According to her, the trial court had orally ordered summary judgment on the breach of contract claim (Count I) only, but denied summary judgment as to the fraud (Count II) and conversion (Count III) claims. As her meritorious defense, Stevens argued the designated evidentiary matter did not support either a finding of fraud or conversion as a matter of law.

The trial court accepted Stevens' proposition that a mistake had occurred and that summary judgment was not warranted on either the fraud or conversion claims. Nonetheless, her motion was denied. Relying upon Ind. Trial Rule 56 subsections (C) and (H), the trial court found Stevens was not entitled to relief due to her failure to designate an issue of material fact in a timely manner, that is, in a response to the purchasers' motions.

For purposes of our review, we will assume, as the trial court did, a mistake was made in the entry of judgment. Thus, Stevens' need only establish a meritorious defense to the judgment.

Our standard of review for summary judgment is the same as the trial court. Summary judgment will be granted only when the expressly designated evidentiary matter shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C) provides in pertinent part:

"At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto...." (Emphasis added.)

T.R. 56(C). Subsection (H) further provides:

"No judgment rendered on this motion shall be reversed on the ground that there is a genuine issue of material fact unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court."

T.R. 56(H).

The initial burden is on the party seeking summary judgment to show the propriety of granting the motion. Babinchak v. Town of Chesterton (1992), Ind.App., 598 N.E.2d 1099, 1101. Thus, relying on specifically designated evidence, the purchasers, as the moving parties, must make a prima facie showing: (1) there are no issues of material fact, and (2) they are entitled to judgment as a matter of law. Id. Only when these two requirements are met does the burden then shift to Stevens, the non-moving party, who must point to specifically designated evidentiary matter to establish an issue of material fact. Id.

The essential elements of actual fraud are: (1) a material representation of past or existing fact which (2) is made with knowledge or reckless ignorance of its falsity (3) which causes reliance to the detriment of the person relying upon it. Ryan v. Chayes Virginia, Inc. (1990), Ind.App., 553 N.E.2d 1237, 1239, trans. denied. Stevens made claims, relied upon by the purchasers, that she could convey good title to the properties upon closing. As the purchasers note, such closings never occurred. However, we agree with Stevens that although not yet title owner, because she was purchasing the properties on land contract, she had an equitable interest in the property. See Skendzel v. Marshall (1973), 261 Ind. 226, 301 N.E.2d 641, 646 (equitable title vests in vendee at the time land sale contract is consummated although legal title does not vest until satisfaction of contract terms). Therefore, it is possible that at the time the representations were made, she could have potentially conveyed good title, as promised, upon closing. The designated evidentiary matter does not support a finding of fraud as a matter of law. Additional factual inquiry is necessary on this issue. See Holtzclaw v. Bankers Mut. Ins. Co. (1983), Ind.App., 448 N.E.2d 55, 58. (whether a material misrepresentation was made is generally a matter for the trier of fact unless reasonable minds can reach only one conclusion).

Stevens also disputes the entry of summary judgment as to the claims of conversion. To constitute the tort of conversion, there must be an appropriation of the personal property of another. National Fleet Supply, Inc. v. Fairchild (1983), Ind.App., 450 N.E.2d 1015, 1019. Although money may be the subject of an action for conversion, it must be capable of being identified as a...