Zawistoski v. Gene B. Glick Co., Inc., 53A05-0001-CV-26.

• Decision Date: 05 May 2000
• Docket Number: No. 53A05-0001-CV-26.,53A05-0001-CV-26.
• Parties: Edith ZAWISTOSKI, Appellant-Plaintiff, v. GENE B. GLICK COMPANY, INC., Individually, Gene B. Glick Company, Inc. d/b/a Gene Glick Management Corporation, and Gene B. Glick Company, Inc. a/k/a and d/b/a Cambridge Square of Bloomington, LLC, and a/k/a Cambridge Square Apartments, as the Landlord Identified in the Lease, Appellees-Defendants.
• Court: Indiana Appellate Court

727 N.E.2d 790

Edith ZAWISTOSKI, Appellant-Plaintiff, v. GENE B. GLICK COMPANY, INC., Individually, Gene B. Glick Company, Inc. d/b/a Gene Glick Management Corporation, and Gene B. Glick Company, Inc. a/k/a and d/b/a Cambridge Square of Bloomington, LLC, and a/k/a Cambridge Square Apartments, as the Landlord Identified in the Lease, Appellees-Defendants.

No. 53A05-0001-CV-26.

Court of Appeals of Indiana.

May 5, 2000.

William C. Lloyd, Matthew C. Boulton, Bill Lloyd & Associates, Bloomington, Indiana, Attorneys for Appellant.

Julia Blackwell Gelinas, Eric A. Riegner, Dionne Carroll McCoy, Locke Reynolds LLP, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Edith Zawistoski appeals from the grant of partial summary judgment in favor of Gene B. Glick Company, Inc. and Cambridge Square of Bloomington, LLC ("Glick"), raising the following issue for review:

Whether the trial court erred in finding that there was no genuine issue of material fact with regard to whether the residential lease entered into by the parties created a warranty on the part of the landlord to keep the common areas safe for the residents.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 1991, Zawistoski and Glick entered into a lease of an apartment in the Cambridge Square apartment complex in Bloomington, Indiana. Glick advertised Cambridge Square as designed for individuals over the age of sixty-two and accessible for those with disabilities or limited mobility.

On October 22, 1997, Zawistoski tripped on a portion of raised sidewalk in the common area of the complex and sustained a fractured neck. She instituted this suit against Glick, alleging common law negligence and breach of contract. She later amended her complaint, adding a count for breach of warranty. Glick moved for summary judgment on the breach of warranty/breach of contract claims. After a hearing, the trial court granted Glick's motion, finding that the lease did not create an express warranty that Glick would ensure the common areas were in a safe condition. Glick subsequently prevailed at the trial of the negligence claim. Zawistoski now appeals the grant of partial summary judgment in favor of Glick on her breach of warranty/breach of contract claims.

DISCUSSION AND DECISION

Summary judgment is appropriate when the designated evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law. Schrum v. Moskaluk, 655 N.E.2d 561, 563-64 (Ind.Ct.App.1995), trans. denied (1996).

When reviewing a motion for summary judgment, this court applies the same standard utilized by the trial court, and we resolve any doubt as to a fact, or an inference to be drawn therefrom, in favor of the party opposing summary judgment. Bamberger & Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d 933 (Ind.Ct.App.1996). We will affirm a trial court's grant of summary judgment if it is sustainable on any theory found in the evidence designated to the trial court. Id.

Zawistoski alleges that the trial court erred in finding no genuine issue of material fact with regard to whether the lease between her and Glick created an express warranty by Glick to keep the common areas of Cambridge Square Apartments safe. At issue is the interpretation of the lease. As a general rule, the construction or legal effect of a contract is a question of law to be determined by the court. R.R.S. II Enters., Inc. v. Regency Assocs., 646 N.E.2d 56, 60 (Ind.Ct.App. 1995), trans. denied (citing Gregory & Appel, Inc. v. Duck, 459 N.E.2d 46, 51 (Ind. Ct.App.1984)). A lease is to be construed in the same manner as any other contract. Id. (citing Whiteco Indus., Inc. v. Nickolick, 571 N.E.2d 1337, 1339 (Ind.Ct.App. 1991), trans. denied).

In interpreting a contract, the courts seek to ascertain the intent of the parties and will accept an interpretation of the contract which harmonizes its provisions as opposed to one which causes the terms to be conflicting. Boswell Grain & Elevator, Inc. v. Kentland Elevator & Supply, Inc., 593 N.E.2d 1224, 1226 (Ind. Ct.App.1992). Normally, the intention of parties to a contract is to be determined from the four corners of the document. McCae Management Corp. v. Merchants Nat'l Bank & Trust Co. of Indianapolis, 553 N.E.2d 884, 887 (Ind.Ct.App.1990), trans. denied. It is expressed by the clear language thereof. Id.

First, we note that Zawistoski amended her complaint to allege a separate claim for breach of contract and for breach of warranty. Her argument that the two causes of action are different is well-taken. As this court explained: "Although closely related, the two actions are not identical. A warranty is a promise, usually collateral to the principal contract, although not necessarily so." Nelson v. Marchand, 691 N.E.2d 1264, 1271 n. 8 (Ind.Ct.App.1998). She fails, however, to explain how these two different theories apply in this case. For both causes of action, Zawistoski relies upon the same contractual provision: Glick's duty to maintain the common areas. Therefore, in this case we regard the two causes of action as the same.¹ A warranty is a promise relating to past or existing fact that incorporates a "commitment by the promisor that he will be responsible if the facts are not as manifested." Johnson v. Scandia Assocs., Inc., 717 N.E.2d 24, 28 (Ind.1999) (citing 1 SAMUEL WILLISTON, A TREATISE ON THE LAW OF CONTRACTS § 1:2 (4th ed. 1990)). Zawistoski contends that the lease created an express warranty on the part of Glick to ensure the safety of its residents. She relies on paragraph 10(a)(2), which states: "The Landlord agrees to ... maintain the common areas and facilities in a safe condition." Record at 125. She argues that the plain meaning of this language is that the common areas are, and at all times will remain, safe. She emphasizes that Cambridge Square is a development designed for and marketed to senior citizens and notes that much of the marketing literature highlights that the complex is inordinately accessible and caters to the needs and concerns of the elderly. Thus, she argues, lessees entering into lease agreements with Glick may be doing so in reliance on this added safety and accessibility. She contends that the lease should be construed to honor this expectation and that to construe it otherwise would be to interpret the contract inconsistent with its purpose.

Glick argues that reading the lease as a whole leads to the conclusion that the provision upon which Zawistoski relies was intended merely to express Glick's common law duty to its lessees. We agree with Glick.

At common law, the landlord has a duty of reasonable care that the common ways and areas are maintained in a reasonably fit and safe condition. Frost v. Phenix, 539 N.E.2d 45, 48 (Ind.Ct.App. 1989) (citing LaPlante v. LaZear, 31 Ind. App. 433, 68 N.E. 312 (1903); Coleman v. DeMoss, 144 Ind.App. 408, 246 N.E.2d 483 (1969); Rossow v. Jones, 404 N.E.2d 12 (Ind.Ct.App.1980)). Read in context, Section 10.2 mirrors this duty. It states:

"10. Maintenance:

a. The Landlord agrees to:

....

(2) maintain the common areas and facilities in a safe condition;

....

(4) maintain all equipment and appliances in safe and working order;

(5) make necessary repairs with reasonable promptness;

....

b. The Tenant agrees to:

....

(5) give the Landlord prompt notice of any defects in the plumbing, fixtures, appliances, heating and cooling equipment or any other part of the unit or related facilities."

Record at 125. Paragraph 10 obligates Glick both to maintain the common areas and to make necessary repairs with reasonable promptness. These are stated as co-equal obligations, neither of more prominence than the other. The same paragraph requires the tenant to give notice of defects. Thus, the contract contemplates that facilities in the common area will, from time to time, require repairs. When they do so, Glick promises to repair them with reasonable promptness. The contrary conclusion creates for Glick the impossible burden of maintaining the common areas in such a manner that no one could ever be injured. The trial court correctly concluded...