Barbara Wiggles v. Sandlian Management Corporation d/b/a U-Stor Self-Storage ( 2014 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be Apr 17 2014, 9:00 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID A. ANDERSON MARK D. GERTH
Anderson & Associates, P.C. JAMES W. ROEHRDANZ
Indianapolis, Indiana Kightlinger & Gray, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BARBARA WIGGLES, )
)
Appellant/Plaintiff, )
)
vs. ) No. 49A02-1306-CT-511
)
SANDLIAN MANAGEMENT CORPORATION )
d/b/a U-STOR SELF-STORAGE, )
)
Appellee/Defendant. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Heather A. Welch, Judge
Cause No. 49D12-1211-CT-42693
April 17, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Barbara Wiggles signed a rental agreement with Sandlian Management
Corporation d/b/a U-Stor Self Storage (“U-Stor”) to rent two 5’ x 10’ storage units. In the
agreement, Wiggles agreed to hold U-Stor harmless from any claim or lawsuit based on
the negligence of U-Stor or any of its employees, agents, or representatives. After U-Stor
filed a motion for judgment on the pleadings, Wiggles filed an affidavit as an exhibit to her
response stating that she never intended to release U-Stor from its own negligence. The
trial court struck her affidavit without a hearing on the motion to strike and granted U-
Stor’s motion for judgment on the pleadings after a hearing was held. Wiggles appeals the
trial court’s decision to grant U-Stor’s motion to strike her affidavit and its decision to grant
U-Stor’s motion for judgment on the pleadings. Finding that Wiggles was not improperly
denied a hearing on her motion to strike, her affidavit contained inadmissible evidence, and
the exculpatory clause in U-Stor’s rental agreement was valid and enforceable, we affirm.
Facts and Procedural History
In May 2011, Wiggles rented two storage units from U-Stor located at 5445 East
Thompson Road in Indianapolis. Her rental agreements, which were identical for each
unit, provided for a month-to-month rental of two 5’ x 10’ storage units. Appellant’s App.
p. 12-13, 15-16. In the rental agreements, she agreed to pay rent on the first day of each
month.
Paragraph 20 of each rental agreement contained the following “Indemnity and Hold
Harmless” clause:
Occupant agrees to indemnify and hold Owner harmless from any and all
costs, disbursements, expenses, demands, claims, actions, or cause of action
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arising directly or indirectly from this Agreement or any renewal or extension
thereof. Occupant further agrees to indemnify, defend and hold harmless
Owner and the owner of the leased premises from any and all claims,
damages, liabilities, judgments, causes of action, suits, expenses (including,
without limitation reasonable attorney fees) and/or injuries asserted against
or suffered by Owner or the owner of the leased premises arising out of,
directly or indirectly, Occupant’s default in the performance of any of its
obligations under this Agreement or the breach of any covenants or
agreements set forth in this Agreement including, without limitation, a
breach of the provisions of paragraph 3 hereof. Occupant further agrees to
indemnify and hold Owner and Owner of the storage facility harmless from
any claim or lawsuit based on or arising from any negligent act and/or
omission by Owner and/or Owner of the facility or any of their employees,
agents or representatives.
Id. at 13, 16 (emphasis added).
In early July, Wiggles, who was seventy-nine years old at the time, went to U-Stor’s
facility on Thompson Road to pay her monthly bill. In order to pay her bill, she had to
place her payment in a drop slot. Id. at 3. To access the drop slot, Wiggles had to step up
onto the sidewalk. Once on the sidewalk, she had to approach and face the screen door
that was blocking the drop slot. The door opened outward requiring Wiggles to step back
and down off the curb to open the door and access the drop box.
While holding her payment in her right hand, she opened the screen door with her
left hand. As she opened the door, she stepped back so she could get around the door and
access the drop slot. There were no hand rails for her to hold while she stepped back.
When she stepped back to get around the screen door, she stepped off the sidewalk
curb, lost her balance, and fell. Id. at 2. She fractured her hip and was unable to get up.
An ambulance took her to St. Francis Hospital. As a result of the fall, Wiggles required
surgery on her left hip, and two screws were placed inside her hip. Id.
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Wiggles filed suit against U-Stor, alleging that she was injured because U-Stor did
not provide a handrail, graded walkway, or any warnings about the curb. U-Stor filed an
answer in which it denied that it was negligent and further alleged that Wiggles could not
recover because the rental agreements included an “Indemnity and Hold Harmless” clause.
It also filed a counterclaim seeking attorney’s fees.
After Wiggles filed an answer to U-Stor’s counterclaim, U-Stor filed a motion for
judgment on the pleadings. Wiggles filed a response to U-Stor’s motion for judgment on
the pleadings and attached an affidavit as an exhibit to her response. In the affidavit, she
claimed that she thought the indemnity-and-hold-harmless clause pertained to only the use
of the storage unit and that “[i]t is not my understanding or intent now and never was my
understanding or intent to release [U-Stor] from its own negligence in causing me harm.”
Id. at 43. U-Stor filed its reply to the motion for judgment on the pleadings and filed a
motion to strike Wiggles’s affidavit because her statements about her understanding of the
rental agreement were extrinsic evidence of the intent of the parties and therefore not
admissible.
A hearing was held in April 2013 on the motion for judgment on the pleadings. At
the hearing, Wiggles argued that paragraph 20 of the rental agreement was an indemnity
clause rather than an exculpatory clause because it did not contain language releasing U-
Stor from any damage U-Stor would cause her. Tr. p. 8. Wiggles also argued that the
provision releasing U-Stor’s negligence was vague because it was not limited in scope or
time. Id. at 10. Instead, she argued that the court should limit the scope of the clause to
include only the rental space, not the area where the bill-pay slot was located. Wiggles
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also argued that the last sentence of the clause in paragraph 20 did not contain limiting
language and was therefore overly broad. Id. at 11-12. The motion to strike was not
addressed at the hearing.
After the hearing, the trial court granted U-Stor’s motion to strike Wiggles’s
affidavit. Appellant’s App. p. 80. It determined that the contract was unambiguous, and
thus, Wiggles’s affidavit was barred because it contained extrinsic evidence about the
meaning of the contract. Id. The same day, the trial court also granted U-Stor’s motion
for judgment on the pleadings, concluding that Wiggles knowingly and willingly signed
the rental agreement, which contained an exculpatory clause that specifically referred to
U-Stor’s negligence. Id. at 87.
Wiggles now appeals.
Discussion and Decision
Wiggles makes two arguments on appeal. First, she argues that the trial court erred
in granting U-Stor’s motion to strike her affidavit without a hearing. Second, she argues
that the trial court erred in granting U-Stor’s motion for judgment on the pleadings.
I. Motion to Strike Wiggles’s Affidavit
We review the trial court’s decisions on the admissibility of evidence, which include
motions to strike an affidavit, under the abuse-of-discretion standard. Kroger Co. v.
Plonski, 930 N.E.2d 1, 5 (Ind. 2010). An abuse of discretion occurs if the trial court’s
decision is clearly against the logic and effect of the facts and circumstances before it, or
the reasonable, probable, and actual deductions to be drawn therefrom. Kelly v. GEPA
Hotel Owner Indianapolis LLC, 993 N.E.2d 216, 219-20 (Ind. Ct. App. 2013).
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A. The Lack of a Hearing on the Motion to Strike
Wiggles argues that the trial court erred because it should have held a hearing before
granting U-Stor’s motion to strike her affidavit. However, Wiggles never raised this
argument in the trial court. It is well settled that “‘a party may not present an argument or
issue to an appellate court unless the party raised that argument or issue to the trial court.’”
Heaphy v. Ogle, 896 N.E.2d 551, 555 (Ind. Ct. App. 2008) (quoting GKC Ind. Theaters,
Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002)). If that issue
is not raised before the trial court, it is waived. Van Winkle v. Nash, 761 N.E.2d 856, 859
(Ind. Ct. App. 2002). At the hearing on the motion for judgment on the pleadings, Wiggles
did not address U-Stor’s motion to strike her affidavit. See Tr. p. 1-12. The trial court
specifically asked Wiggles’s counsel if he wanted to add anything in support of his
argument, but he did not mention the motion to strike. Id. at 11. After the court ruled,
Wiggles did not object to the trial court’s decision to strike her affidavit without a hearing
until this appeal. Appellant’s App. p. 2. See Christmas v. Kindred Nursing Ctrs. Ltd.
P’ship, 952 N.E.2d 872, 877 (Ind. Ct. App. 2011) (holding that a party waived its right to
a hearing on a motion for summary judgment when it failed to object after the trial court
canceled the scheduled hearing and ruled on the summary-judgment motion).
Waiver notwithstanding, the trial court did not err in not holding a hearing. Wiggles
points to no rule or case law requiring a hearing before granting a motion to strike. Instead,
she cites one case that states “the elements of due process required in civil proceedings are
not definable with precision, but the opportunity to be heard is fundamental.” Baughman
v. State, 777 N.E.2d 1175, 1177 (Ind. Ct. App. 2002). However, Baughman is
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distinguishable. In that case, the trial court ordered Baughman’s attorney to pay $250 for
abusing the subpoena power of the court without a hearing. In doing so, the trial court did
not give Baughman or her lawyer an opportunity to respond to the request for sanctions
even though the Indiana Trial Rules “contemplate a hearing in order to determine the
reasonableness of the sanction.” Id. (discussing Ind. Trial Rule 37(B)).
A reading of the Indiana Trial Rules suggests there is no requirement of a hearing
before a motion to strike is ruled upon. See, e.g., Ind. Trial Rule 56(C) (“The court may
conduct a hearing on the motion [for summary judgment]. However, upon motion of any
party made no later than ten (10) days after the response was filed or was due, the court
shall conduct a hearing on the motion . . . .”). Even on summary-judgment motions a right
to a hearing arises only if one of the parties specifically requests the hearing. But here,
Wiggles made no motion for a hearing before or after the trial court ruled. Additionally,
Wiggles’s position was considered by the trial court because she filed a response to the
motion to strike before the hearing on the motion for judgment on the pleadings was held.
Appellant’s App. p. 56.
B. The Merits of the Motion to Strike
Wiggles also argues that the trial court erred in granting U-Stor’s motion to strike
her affidavit. Under Trial Rule 56(E), an affidavit must set forth “such facts as would be
admissible in evidence . . . .”1
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We consider Wiggles’s motion to strike under Trial Rule 56(E) because if “matters outside the
pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56 . . . .” Ind. Trial Rule 12(C). The admission of Wiggles’s
affidavit would require U-Stor’s motion to be treated as a motion for summary judgment. Therefore, we
must look to Indiana Trial Rule 56 to determine whether her affidavit should be stricken.
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The interpretation of a contract is a question of law, which we review de novo.
Westfield Cos. v. Knapp, 804 N.E.2d 1270, 1273-74 (Ind. Ct. App. 2004), reh’g denied,
trans. denied. When interpreting a contract, “[t]he unambiguous language of a contract is
conclusive upon the parties to the contract and upon the courts.” Trustcorp Mortg. Co. v.
Metro Mortg. Co., Inc., 867 N.E.2d 203, 212 (Ind. Ct. App. 2007) (quoting Whitaker v.
Brunner, 814 N.E.2d 288, 293 (Ind. Ct. App. 2004), trans. denied), reh’g denied. “[A]
contract will be found to be ambiguous only if reasonable persons would differ as to the
meaning of its terms.” Vincennes Univ. ex rel. Bd. of Trs. of Vincennes v. Sparks, 988
N.E.2d 1160, 1165 (Ind. Ct. App. 2013), trans. denied. Therefore, if the contract is
unambiguous, “the parties’ intent will be determined from the four corners of the contract.”
Id. We may not look to extrinsic evidence to add to, vary, or explain the terms of a contract.
Cooper v. Cooper, 730 N.E.2d 212, 215 (Ind. Ct. App. 2000).
Here the “Indemnity and Hold Harmless” clause states, in relevant part, that,
“Occupant further agrees to indemnify and hold Owner and Owner of the storage facility
harmless from any claim or lawsuit based on or arising from any negligent act and/or
omission by Owner and/or Owner of the facility or any of their employees, agents or
representatives.” The trial court determined that the indemnity-and-hold-harmless clause
was unambiguous. Appellant’s App. p. 81.
We agree with the trial court. The rental agreement is clear that Wiggles agreed to
hold U-Stor harmless and indemnify it from any negligence claim committed by U-Stor,
its employees, agents, or representatives. Because we have determined that the contract is
unambiguous, we may only look to the contract itself to determine the parties’ intent.
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Throughout Wiggles’s affidavit, she makes statements about her intent and belief
when she signed the contract. Id. at 42-43. Such evidence is not admissible and not
relevant when a contract is unambiguous. Ind. Trial Rule 56(E) (“Supporting and opposing
affidavits . . . shall set forth such facts that would be admissible in evidence . . . .”). Because
Wiggles’s affidavit contained only inadmissible evidence, the trial court did not abuse its
discretion by granting U-Stor’s motion to strike Wiggles’s affidavit.
II. Judgment on the Pleadings
Wiggles also argues that the trial court erred when it granted U-Stor’s motion for
judgment on the pleadings. Specifically, she argues that the provision is an indemnity
agreement rather than an exculpatory clause, the scope of the clause is overly broad and
should be limited, and the clause is void against public policy.
A motion for judgment on the pleadings under Indiana Trial Rule 12(C) is reviewed
de novo. Consolidated Ins. Co. v. Nat’l Water Servs., LLC, 994 N.E.2d 1192, 1196 (Ind.
Ct. App. 2013) (citing Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010)),
trans. denied. We must accept as true the well-pleaded material facts alleged in the
complaint and base our ruling solely on the pleadings. Id. We may grant a Trial Rule
12(C) motion only “‘where it is clear from the face of the complaint that under no
circumstances could relief be granted.’” Id. (quoting Forte v. Connerwood Healthcare,
Inc., 745 N.E.2d 796, 801 (Ind. 2001)). In reviewing a Trial Rule 12(C) motion, we may
consider only the pleadings, with all well-pleaded material facts alleged in the complaint
deemed admitted, and any facts of which we may take judicial notice. Fox Dev., Inc. v.
England, 837 N.E.2d 161, 165 (Ind. Ct. App. 2005). The “pleadings” consist of a
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complaint and an answer. Ind. Trial Rule 7; Consolidated Ins. Co., 994 N.E.2d at 1196.
They also consist of “any written instruments attached to a pleading, pursuant to Trial Rule
9.2.” Consolidated Ins. Co., 994 N.E.2d at 1196.
The construction of a contract presents a pure question of law and is reviewed de
novo. Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind. 2005). When
interpreting a written contract, we attempt to determine the parties’ intent when the contract
was made. Whitaker v. Brunner, 814 N.E.2d 288, 294 (Ind. Ct. App. 2004). We do this
by examining the language used in the contract to express their rights and duties. Id. We
read the contract as a whole and will attempt to construe the contractual language so as not
to render any words, phrases, or terms ineffective or meaningless. Id. Moreover, we must
accept an interpretation of the contract that harmonizes its provisions, rather than one that
places them in conflict. Id.
Wiggles makes three arguments as to why the trial court should not have granted
judgment on the pleadings. First, Wiggles argues that paragraph 20 is an indemnity clause
rather than an exculpatory clause. An exculpatory clause in a contract covers the risk of
harm sustained by the party in the contract who releases the other party in the contract.
Morris v. McDonald’s Corp., 650 N.E.2d 1219, 1222 (Ind. Ct. App. 1995). By executing
the exculpatory clause, the releasing party is prevented from recovering from the released
party for the released party’s negligence. Id. An example of an exculpatory clause is when
a person rafts with a whitewater-rafting company and executes an agreement releasing the
whitewater-rafting company from its own negligence, the rafting company will not be
liable to the participant even if it is negligent. In contrast, an indemnity clause proscribes
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who bears the risk of harm sustained by third persons caused by either party to the contract.
Id. It shifts the financial burden for the ultimate payment of damages sustained by the third
party to the releasing party. Id. An example of an indemnity clause is when a subcontractor
agrees to build a roof for a contractor who has contracted to build a house for the owner of
the house and the subcontractor agrees to reimburse the contractor if the owner sues the
contractor for a deficiency in the roof. Under an indemnity clause, the subcontractor must
reimburse the contractor if the contractor is sued by the owner.
Although Wiggles argues that paragraph 20 is an indemnity clause, its designation
as an indemnity clause does not mean that it may not also be an exculpatory clause. We
addressed a similar argument in City of Hammond v. Plys, 893 N.E.2d 1 (Ind. Ct. App.
2008). In that case, the contract stated that Plys “agrees to indemnify and hold harmless .
. . the City of Hammond, Indiana which is caused by an act or omission, whether negligent,
intentional or otherwise, of an employee, representative, or agent of the . . . City of
Hammond.” Id. at 3. On appeal, we stated that “[a]lthough the third sentence of the release
uses the word indemnity, it is not solely an indemnity clause and it clearly indicated that
Plys will ‘hold harmless’ the Hammond defendants.” Id. at 4; see also U.S. Auto Club, Inc.
v. Smith, 717 N.E.2d 919, 923 (Ind. Ct. App. 1999) (holding that a provision requiring
plaintiff to “indemnify and hold harmless [the defendants] from loss, liability damage or
cost they may incur due to the presence of the undersigned in or upon the restricted area,
whether caused by the negligence of [the defendants] or otherwise” prevented the plaintiff
from recovering against the defendants for injuries caused by the defendants’ negligence),
trans. denied.
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The language of paragraph 20 is similar to the language in both City of Hammond
and U.S. Auto Club, Inc. In paragraph 20 of the agreement, Wiggles specifically agreed to
“indemnify and hold harmless [U-Stor] from any claim or lawsuit based on or arising from
any negligent act and/or omission . . . .” Appellant’s App. p. 13, 16. Because the provision
includes the term “hold harmless,” we construe it to be both an indemnity and an
exculpatory clause.
Second, Wiggles argues that the exculpatory clause does not apply to the injuries
she suffered because they occurred at the door of the owner’s facility rather than at one of
the storage units she rented. She also argues that the clause is vague and overly broad
because “the language, as written, if not limited to injuries arising from the storage unit
itself, is so broad that it could be used to require [Wiggles] to indemnify [U-Stor] and its
staff for their negligence which is totally unrelated to the owner’s facility.” Appellant’s
Br. p. 9. Additionally, she argues that “even if [she were] run over by [U-Stor’s] owner,
employees, agents or representatives on the other side of town,” she would not be able to
recover. Id. at 9-10.
U-Stor cites City of Hammond and U.S. Auto Club, Inc. for support. We agree with
Wiggles that both cases are distinguishable when considering the scope of the clause in
question. In both cases, the exculpatory clauses limit the scope of negligence for which
the other party cannot be sued. City of Hammond, 893 N.E.2d at 2 (clause requires Plys to
hold the City of Hammond harmless for negligence resulting from “any contact, game,
function, exercise, competition, or any other activity operating, organized, arranged, or
sponsored by the City of Hammond”); U.S. Auto Club, Inc., 717 N.E.2d at 921 (clause
12
requires Smith to hold U.S. Auto Club, Inc. harmless for the negligence incurred to his
presence “in or upon the restricted area”). In contrast, here, the exculpatory clause merely
states that Wiggles agrees to hold U-Stor harmless “from any claim or lawsuit based on or
arising from any negligent act and/or omission by Owner and/or Owner of the facility or
any of their employees, agents or representatives.” Appellant’s App. p. 13, 16.
However, because the contract is an unambiguous release of U-Stor’s negligence,
we must determine the meaning from the four corners of the document. Individual clauses
in contracts cannot be read in isolation, and we must look at the contract as a whole.
Whitaker, 814 N.E.2d at 294. Here, the first sentence in paragraph 20 generally states that
Wiggles agrees to hold U-Stor harmless for any cause of action “arising directly or
indirectly from this Agreement or any renewal or extension thereof.” Id. The second and
third sentences in paragraph 20 illustrate specific types of claims to which the provision
applies. The third sentence specifies that those claims include the negligence of U-Stor or
its employees. Thus, we conclude that, although not specifically stated in the third
sentence, the exculpation of U-Stor’s negligence applies only to the negligence that would
arise directly or indirectly from the performance of the rental agreement. This
interpretation does not specifically limit the scope of the hold-harmless agreement to
injuries occurring at the storage units rented by Wiggles. The payment of rent is an
obligation that arises directly from this agreement. Because the payment of rent arises
directly from the rental agreement, the exculpatory clause applies to the payment of rent.
Finally, Wiggles argues that the exculpatory clause is void as against public policy
because it is not limited to injuries occurring at the storage unit. It is well settled that
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exculpatory clauses are not against public policy. Wabash Cnty. Young Men’s Christian
Ass’n, Inc. v. Thompson, 975 N.E.2d 362, 366 (Ind. Ct. App. 2012), reh’g denied, trans.
denied. These contracts are permissible as long as they are knowingly and willingly made
and free from fraud. Gen. Bargain Ctr. v. Am. Alarm Co., 430 N.E.2d 407, 411-12 (Ind.
Ct. App. 1982). However, a contract will be void as against public policy when “the parties
have unequal bargaining power, the contract is unconscionable, or the transaction affects
the public interest such as utilities, carriers, and other types of businesses generally thought
to be suitable for regulation or which are thought of as a practical necessity for some
members of the public.” Id.
Here, Wiggles does not argue that any of these exceptions exist. Instead, she argues,
without citing any case law, that the clause in paragraph 20 “is so broad and vague as to be
against public policy.” Appellant’s Br. p. 9.
However, this Court has upheld exculpatory clauses worded similarly to the clause
in paragraph 20 as not void against public policy. Center Tp. of Porter Cnty. v. City of
Valparaiso, 420 N.E.2d 1272, 1275 (Ind. Ct. App. 1981) (holding that a clause stating that
the City “shall be held harmless for any and all negligence . . . resulting under its
performance of this contract, whether or not caused by or resulting from the activity of the
. . . Fire Department or any other participating agency or department or official of the City
of Valparaiso, Indiana” did not violate public policy).
Here, Wiggles knowingly and willingly entered into this agreement to rent two
storage units. There is also no evidence of fraud. Additionally, none of the exceptions
exist that would cause the contract to be void as against public policy.
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We conclude that Wiggles was not improperly denied a hearing on U-Stor’s motion
to strike Wiggles’s affidavit and the trial court correctly granted U-Stor’s motion to strike
because her affidavit contained only inadmissible extrinsic evidence. We also conclude
that the trial court correctly granted U-Stor’s motion for judgment on the pleadings because
paragraph 20 contained a valid and enforceable exculpatory clause.
Affirmed.
RILEY, J., and MAY, J., concur.
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