Wilson v. Palmer, No. 4-982A280
| Docket Nº | No. 4-982A280 |
| Citation | 452 N.E.2d 426 |
| Case Date | August 17, 1983 |
| Court | Court of Appeals of Indiana |
Page 426
v.
M. Dale PALMER d/b/a Mark V Corporation, Rosemary Church,
Century 21-Accent, Inc. Realtors, and Commonwealth
Land Title Insurance Company, Appellees
(Defendants Below).
Fourth District.
Page 427
Jon R. Pactor, Indianapolis, for appellant.
Dawn Sturwold, Wooden, McLaughlin & Sterner, Charles K. Crawford, Edgar Lamb, Yarling, Tunnell, Robinson & Lamb, Indianapolis, for appellees.
YOUNG, Judge.
Dee Wilson initiated this suit for damages after discovering that a house he had just purchased was subject to a demolition order. The complaint named the vendor, his realtor, and Commonwealth Land Title Insurance Co. (Commonwealth) as defendants. Commonwealth moved to dismiss the complaint for failure to state a claim against it. Wilson did not respond to this motion, and the court granted it on July 28, 1981. Litigation continued against the remaining defendants, but Wilson did not amend his complaint against Commonwealth. On June 21, 1982, the court noted that Wilson had failed to amend his complaint. Finding no just reason for delay, the court entered final judgment against Wilson on his claim against Commonwealth. Wilson appeals, claiming the court erred in dismissing his complaint against Commonwealth. Specifically, Wilson raises two issues: (1) whether the court erred in finding Wilson's complaint stated no claim for relief against Commonwealth, and (2) whether the court erred in ruling on Commonwealth's motion to dismiss and Wilson's motion to correct errors without a hearing.
Because we agree that the court erred in finding Wilson's complaint insufficient, we address only the first issue.
Page 428
We reverse.
Wilson's complaint in this case contained only one sentence alleging wrongdoing by Commonwealth:
The defendant Commonwealth Land Title Insurance Company issued a title report on the aforesaid real estate which failed to show that there was a demolition order on the building on said real estate, and thereby concealed from the plaintiff the fact that the building had been condemned and demolition had been ordered.
Wilson now claims the court erred in dismissing his complaint against Commonwealth because this allegation adequately states a claim for fraud. We disagree. Generally, dismissal is appropriate under Ind.Rules of Procedure, Trial Rule 12(B)(6) only when it appears to a certainty that the plaintiff cannot recover under any set of facts. State v. Rankin, (1973) 260 Ind. 228, 294 N.E.2d 604. Where the claim is based on fraud, however, our rules require that, "the circumstances constituting fraud ... shall be specifically averred ...." T.R. 9(B). The circumstances constituting fraud include "the time, the place, the substance of the false representations, the facts misrepresented, and the identification of what was procured by the fraud." Cunningham v. Associates Capital Services Corp., (1981) Ind.App., 421 N.E.2d 681, 683 (quoting 1 W. HARVEY, INDIANA PRACTICE Sec. 9.2 (1969)). Wilson's complaint does not state that Commonwealth made any representations to him, true or false. Nor does it state any facts from which it could be inferred that Commonwealth had any duty to discover demolition orders and disclose them to Wilson. Thus the conclusory statement that Commonwealth "concealed" the demolition order from Wilson is insufficient under T.R. 9(B) to state a claim for actual or constructive fraud.
Wilson contends, however, that dismissal was not the proper remedy for his failure to comply with T.R. 9(B), citing Pactor v. Pactor, (1979) Ind.App., 391 N.E.2d 1148, and State Farm Mutual Automobile Insurance Co. v. Shuman, (1977) 175 Ind.App. 186, 370 N .E.2d 941. In Shuman, the court of appeals held that the trial court properly refused to dismiss the plaintiff's complaint for punitive damages. This holding was based on the theory that T.R. 9(B) does not apply to a claim for punitive damages, where fraud is not raised as an independent cause of action. The holding was also based on the following analysis of T.R. 9(B):
In regard to the TR. 9(B) challenge, we observe first of all that failure to comply with the special pleading provisions of TR. 9(B) is not fatal. The courts and commentators generally agree that compliance should not be compelled by outright dismissal of the action. Other remedies, such as a motion for a more definite statement or the use of discovery procedures, are available.... Even those cases which dismiss the complaint do so almost always with leave to amend.
Id. at 195, 370 N.E.2d at 949-50. In...
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Allstate Ins. Co. v. Boles, Civ. A. No. IP83-834-C.
...operating a fleet of uninsured vehicles upon the highways.'" Connell v. American Underwriters, Inc., 453 N.E.2d at 1032 quoting Vincel, 452 N.E.2d at 426 (quoting France v. Liberty Mutual Insurance Co., 380 So.2d 1155, 1156 The citations to the Court of Appeals of Indiana reflect the well-e......
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Abdulrahim v. Gene B. Glick Co., Inc., Civ. No. F 84-337.
...Three Indiana courts have held that Indiana does not recognize the tort of negligent misrepresentation. See Wilson v. Palmer, 452 N.E.2d 426, 429 (Ind.App.1983) (claim against title company for failure to discover demolition order in title search); Essex v. Ryan, 446 N.E.2d 368, 372 (Ind.Ap......
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St. Paul Fire & Marine Ins. Co. v. Pearson Const. Co., 49A04-8705-CV-152
...failure to do so is a tort, as well as a breach of contract. 57 Am.Jur.2d, Negligence Sec. 120. See, Wilson v. Palmer (1983), Ind.App., 452 N.E.2d 426. In Wilson v. Palmer, supra, Wilson, after discovering a house he had just purchased was subject to a demolition order, filed suit against t......
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Speckman v. City of Indianapolis, 49A04-8605-CV-155
...any set of facts presented by his pleadings. State v. Rankin (1973), 260 Ind. 228, 294 N.E.2d 604; Wilson v. Palmer (1983), Ind.App., 452 N.E.2d 426; William S. Deckelbaum Co. v. Equitable Life Assurance Society of U.S., (1981), Ind.App., 419 N.E.2d 228, modified in other respects (1981), I......
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Allstate Ins. Co. v. Boles, Civ. A. No. IP83-834-C.
...operating a fleet of uninsured vehicles upon the highways.'" Connell v. American Underwriters, Inc., 453 N.E.2d at 1032 quoting Vincel, 452 N.E.2d at 426 (quoting France v. Liberty Mutual Insurance Co., 380 So.2d 1155, 1156 The citations to the Court of Appeals of Indiana reflect the well-e......
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Abdulrahim v. Gene B. Glick Co., Inc., Civ. No. F 84-337.
...Three Indiana courts have held that Indiana does not recognize the tort of negligent misrepresentation. See Wilson v. Palmer, 452 N.E.2d 426, 429 (Ind.App.1983) (claim against title company for failure to discover demolition order in title search); Essex v. Ryan, 446 N.E.2d 368, 372 (Ind.Ap......
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St. Paul Fire & Marine Ins. Co. v. Pearson Const. Co., 49A04-8705-CV-152
...failure to do so is a tort, as well as a breach of contract. 57 Am.Jur.2d, Negligence Sec. 120. See, Wilson v. Palmer (1983), Ind.App., 452 N.E.2d 426. In Wilson v. Palmer, supra, Wilson, after discovering a house he had just purchased was subject to a demolition order, filed suit against t......
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Speckman v. City of Indianapolis, 49A04-8605-CV-155
...any set of facts presented by his pleadings. State v. Rankin (1973), 260 Ind. 228, 294 N.E.2d 604; Wilson v. Palmer (1983), Ind.App., 452 N.E.2d 426; William S. Deckelbaum Co. v. Equitable Life Assurance Society of U.S., (1981), Ind.App., 419 N.E.2d 228, modified in other respects (1981), I......