Arnold Blevins v. Raymond Arthur Brassart ( 2012 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
FILED
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral Jul 26 2012, 9:10 am
estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
P. ADAM DAVIS JOSEPH P. HUNTER
Davis & Sarbinoff, LLC Muncie, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ARNOLD BLEVINS, )
)
Appellant-Plaintiff, )
)
vs. ) No. 18A03-1201-PL-8
)
RAYMOND ARTHUR BRASSART, )
)
Appellee-Defendant. )
)
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Max Ludy Jr., Special Judge
Cause No. 18C03-1005-PL-10
July 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
After a dispute arose regarding the sale of land in Muncie, Indiana, Arnold
Blevins filed suit against Raymond Brassart. The trial court determined that Blevins’
claims against Brassart—including legal malpractice, breach of contract, conversion, and
theft—should be dismissed because they were barred by the applicable statutes of
limitation and the Statute of Frauds. Blevins was later permitted to file an amended
complaint. The trial court dismissed the amended complaint, incorporating by reference
its findings and conclusions from the first dismissal order. On appeal, Blevins argues that
the trial court erred in dismissing his claims. We conclude that the trial court properly
dismissed Blevins’ claims against Brassart because they were barred by the Statute of
Frauds. We affirm.
Facts and Procedural History
In 1977, Blevins allegedly invested $1000 to purchase land in Muncie, Indiana.
Brassart and Scott Hole were the other purchasers of the land, which cost $31,500. The
land was deeded to Brassart and Hole as tenants in common. The deed was recorded in
Delaware County in November 1977, and Brassart and Hole later mortgaged the property
to Merchants National Bank of Muncie. The mortgage was also recorded in Delaware
County.
Thirty years later, in 2008, Brassart and Hole sold the land for $500,000 without
notice to Blevins. When Blevins learned of the sale, he filed suit against Brassart,
claiming that he, Brassart, and Hole had formed a partnership to purchase the land, and
by virtue of his $1000 contribution and the men’s agreement, he was entitled to one-third
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of the sale proceeds. Blevins argued that Brassart, a licensed attorney in Indiana, had
acted as the group’s attorney, and in selling the property without notice to Blevins,
Brassart had committed legal malpractice. Blevins also argued that Brassart breached the
men’s agreement and committed conversion and theft.
In August 2010, Brassart filed a motion to dismiss, arguing that Blevins’ claims
were barred by the Statute of Frauds and the applicable statutes of limitation. After a
hearing, the trial court granted Brassart’s motion. The trial court first noted that there
was no documentation to support Blevins’ claim that he contributed $1000 to the
purchase of the land, nor was there a written partnership agreement. The trial court then
concluded that Blevins’ claim of malpractice, which stemmed from Brassart’s actions in
1977,1 was barred by the two-year statute of limitations. See Ind. Code § 34-11-2-3. The
court reached the same conclusion as to Blevins’ conversion/theft and breach of an oral
agreement claims, the statutes of limitation for which are two and six years, respectively.
See Ind. Code §§ 34-11-2-4, -7. Finally, the court concluded that Blevins’ complaint was
barred by the Statute of Frauds:
27. The Indiana Supreme Court has held in Weldon v. State, 289 N.E.2d
554, 557 (Ind. 1972): the courts are prohibited from recognizing or
enforcing any purported interest in the real estate based upon or attempted
to be transferred by the unwritten joint venture agreement.
Appellant’s App. p. 17 (formatting altered).
Blevins filed a motion to correct errors, which was denied. In August 2011,
Blevins filed a motion for leave to file an amended complaint, which the trial court
1
Blevins disagrees with the trial court’s characterization of his malpractice claim. Blevins argues
that the basis for this claim is actually Brassart’s actions in 2008. However, due to our resolution of the
Statute of Frauds issue, discussed infra, we need not address this issue.
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granted. Though the amended complaint provided more factual detail surrounding
Blevins’ claim of legal malpractice by Brassart, the amended complaint was largely the
same as the original. Id. at 31-35, 87-92. Brassart filed a second motion to dismiss,
arguing that Blevins’ claims should be dismissed on the same grounds as the previous
complaint. After a hearing, the trial court granted Brassart’s motion to dismiss,
incorporating by reference its findings and conclusions from its previous order dismissing
Blevins’ claims. Id. at 12.
Blevins now appeals.
Discussion and Decision
On appeal, Blevins contends that the trial court erred in dismissing his claims
based upon the Statute of Frauds and applicable statutes of limitation. Because we find
the Statute of Frauds issue dispositive, we address only that issue.2
Blevins argues that the trial court erred in ruling that his claims were barred by the
Statute of Frauds. In pertinent part, Indiana’s Statute of Frauds provides:
A person may not bring any of the following actions unless the promise,
contract, or agreement on which the action is based, or a memorandum or
note describing the promise, contract, or agreement on which the action is
based, is in writing and signed by the party against whom the action is
brought or by the party’s authorized agent:
*****
(4) An action involving any contract for the sale of land.
2
In his appellate brief, Brassart directs our attention to numerous errors made by Blevins in the
preparation and submission of his appellate materials and asks us to dismiss this appeal based on those
errors. We acknowledge these mistakes; however, because we prefer to decide cases on their merits, we
address Blevins’ claims on appeal. Brassart also filed a motion to dismiss this appeal, which we deny in a
separate motion.
4
Ind. Code § 32-21-1-1(b). In Weldon v. State, our Supreme Court considered whether a
husband and wife could rely on an alleged “‘joint venture’, orally made with no written
instrument evidencing or sustaining such an agreement” to recover damages for the
taking of property they claimed an ownership interest in. 258 Ind. 143, 279 N.E.2d 554,
556 (1972). Concluding that reliance on such an agreement would violate the Statute of
Frauds, the Court ruled that courts were prohibited from “recognizing or enforcing any
purported interest in the real estate based upon or attempted to be transferred by the
unwritten joint venture agreement.” Id. at 148.
As in Weldon, Blevins seeks recognition and enforcement of his alleged interest in
land—the land sold by Brassart and Hole in 2008. Notably, Blevins makes no claim that
the alleged partnership is based on a written partnership agreement. In arguing that his
claims are not barred by the Statute of Frauds, Blevins cites only case law dealing with
“unwritten” partnership agreements, partnerships formed “without a writing,” and “oral
contracts.”3 Appellant’s Br. p. 22-25. We therefore conclude that the alleged partnership
agreement that serves as the basis for Blevins’ claims was an unwritten joint venture
agreement. This places the agreement solely under the purview of Weldon,4 and under
3
Moreover, if Blevins were relying on a written partnership agreement, he would be required to
include that agreement, which he did not do. Trial Rule 9.2(a) states, in relevant part:
(A) When instrument or copy must be filed. When any pleading allowed by these rules is
founded on a written instrument, the original, or a copy thereof, must be included in or
filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be
taken as part of the record.
4
To the extent Blevins argues that this case is governed by the 1911 case of Robinson v. Horner,
we disagree. In Robinson, the plaintiff presented the written agreement upon which his complaint was
based. 176 Ind. 226, 95 N.E.2d 561, 564 (1911). In dicta, our Supreme Court noted that a partnership
agreement “can [be formed under a parol agreement] . . . . [W]ithout such agreement being affected by the
statute of frauds . . . .” Id. at 564. However, in Weldon, the Supreme Court impliedly overruled Robinson
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the reasoning articulated therein, the trial court properly dismissed Blevins’ claim of
breach of the alleged partnership agreement. We also conclude that Blevins’ remaining
claims are precluded by the Statute of Frauds because these claims emanate from an
alleged contract for the sale of land. See Ind. Code § 32-21-1-1(b)(4).
Affirmed.
CRONE, J., and BRADFORD, J., concur.
when it held that “the oral agreement here for a joint venture would violate the Statute of Frauds to the
extent it attempted to convey an interest or title to real estate. . . .” Weldon, 279 N.E.2d at 556. We
therefore proceed under the reasoning articulated in Weldon.
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