AOX, Inc. and Brian Piunti v. Lake County Trust Company, Trust 4210 and Trust 5061, and Alex Emmanoilidis , 129 N.E.3d 270 ( 2019 )

FILED
Jul 23 2019, 7:43 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
F. Joseph Jaskowiak Patrick P. Devine
Lauren K. Kroeger John R. Terpstra
Hoeppner Wagner & Evans LLP Hinshaw & Culbertson LLP
Merrillville, Indiana Schererville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
AOX, Inc. and Brian Piunti, July 23, 2019
Appellants-Plaintiffs, Court of Appeals Case No.
18A-PL-2383
v. Appeal from the
Lake Superior Court
Lake County Trust Company, The Honorable
Trust 4210 and Trust 5061, and John M. Sedia, Judge
Alex Emmanoilidis, Trial Court Cause No.
Appellees-Defendants 45D01-1301-PL-5
Vaidik, Chief Judge.
Case Summary
[1] AOX, Inc. and Brian Piunti (collectively, “AOX”) appeal the trial court’s grant
of summary judgment in favor of Lake County Trust Company, Trust 4210 and
Trust 5061, and Alex Emmanoilidis (collectively, “the Landlords”) on AOX’s
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claims of breach of contract and malicious prosecution. We affirm as to the
breach-of-contract claim but reverse as to the malicious-prosecution claim.
Facts and Procedural History
[2] We set forth the following facts in a previous appeal involving these parties:
In August 1998, AOX, Inc., entered into a ten-year lease with
Trust Number 4210 (“the Trust”) for property in Portage,
Indiana, so that AOX could open a preventative automotive
maintenance center. Under the lease, the Trust was to complete
construction on the property and obtain an occupancy permit by
the beginning of the lease term. The lease was signed by Alex
Emmanoilidis, as beneficiary of the Trust; Lake County Trust
Company, as trustee of the Trust (“the Trustee”); and Brian
Piunti, as president of AOX.
The lease term was supposed to start in November 1998, but
AOX was unable to take possession of the property because the
building was not certified for occupancy until January 15, 1999.
This delay resulted in the lease term beginning February 1, 1999.
However, on January 8, 1999, the Trust threatened to evict AOX
for failure to pay the first rental installment, even though it was
not yet due. Ten days later, Emmanoilidis directed the Trustee
to convey the leased property from Trust Number 4210 to Trust
Number 5061, with no notice to Piunti. About two months after
that, the Trust demanded payment for utility bills and for repairs
made to damaged water pipes, again under the threat of eviction,
even though those expenses occurred prior to AOX’s occupancy.
Piunti noticed numerous defects in the property and deviations
from the plans and specifications as provided in the lease. He
informed Emmanoilidis of these issues as early as January 28,
1999, and onward through 2008. Emmanoilidis did not correct
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any of these defects and even stated at one point that he was “not
going to fix shit.” Instead, he subjected Piunti and AOX to
several lawsuits over the years, for example:
In March 1999, Emmanoilidis and his wife alleged Piunti had
stolen windows, doors, and other building materials stored on the
leased property and requested over $25,000 in damages. More
than ten years later, the trial court dismissed the case on Piunti’s
motion, noting that Emmanoilidis failed to respond to discovery
requests and had not taken any action since filing the complaint.
In May 2000, Emmanoilidis directed the Trust to seek eviction,
damages, and attorney’s fees from Piunti and AOX for allegedly
defaulting on the lease. Along with the complaint,
Emmanoilidis’s son Arte Emmanoilidis filed an affidavit stating
that Piunti and AOX had failed to pay real estate taxes and rent.
The parties later stipulated that AOX was current in rent
payments. In October 2001, the trial court found that the real
estate taxes the Trust demanded included taxes on land that was
not part of the leased property and thus declined to evict AOX.
The parties could not agree on the amount of taxes due, so the
case proceeded to a bench trial. In December 2002, the court
found AOX owed precisely the amount Piunti had calculated
and offered to pay before trial. It thus withheld judgment to give
AOX time to pay. AOX paid the same day, and the court never
entered a final judgment.
In October 2004, Emmanoilidis again directed the Trust to sue
Piunti and AOX. This time, the Trust accused AOX and its
employees of criminal mischief for allegedly spraying soap and
water on the parking lot while the asphalt was being sealed and
sought damages and attorney’s fees of $6000. The case went to
trial in December 2007, and after no more than an hour of
deliberations, the jury returned a verdict for Piunti and AOX.
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In the beginning of 2008, nearing the end of the ten-year lease
term, Piunti asked Emmanoilidis whether he would extend the
lease to a new owner if Piunti decided to sell his business.
Emmanoilidis said no. Piunti notified Emmanoilidis in February
2008 that AOX was exercising its option to extend the lease for
another five years.
Lake County Trust Co. v. AOX, Inc., No. 45A03-1207-PL-309, 2013 WL 3816722*1-*2 (Ind. Ct. App. July 19, 2013) (citations and footnotes omitted).
[3] In August 2008, AOX filed suit against the Landlords in Lake County. AOX
alleged that the Landlords (1) “had breached the lease and continued to do so
despite AOX’s repeated notices” (e.g., failure to provide access to Route 6,
defective floor drains, lack of landscaping, inadequate/defective outdoor
lighting, defective parking lot, and deficient painting) and (2) “abused the
judicial process by maliciously filing groundless suits to harass [AOX] into
terminating the lease.” Id. at *2. The Landlords filed a counterclaim against
AOX, alleging that AOX itself had breached the lease by, among other things,
failing to repair a broken window on the Property.
[4] A jury trial was held in June 2012. The jury returned a verdict in favor of AOX
on its breach-of-contract claim, awarding damages of $179,322, and on its
malicious-prosecution claim, awarding damages of $5,950. The trial court
rejected the Landlords’ counterclaim about the broken window, entering a
directed verdict in favor of AOX.
[5] Two months after the jury trial, on August 16, 2012, the Landlords filed a
lawsuit against AOX in Porter County. The Landlords claimed that AOX had
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“failed to repair broken window glass” on the property. They requested, among
other things, “termination of the lease and immediate possession of the
Premises[.]” Appellants’ App. Vol. VI p. 80. AOX quickly moved for summary
judgment, arguing in part that the Landlords’ claim was barred by the doctrines
of res judicata and collateral estoppel because they made a counterclaim about
the broken window in the Lake County litigation and lost via directed verdict.
The Porter County court agreed and granted AOX’s motion based on its
“review of the jury proceedings and verdict from Lake County Superior
Court[.]” Id. at 117.
[6] On September 12, 2012, AOX filed another lawsuit against the Landlords—the
lawsuit underlying this appeal—in Lake County. AOX claimed that the
Landlords’ breaches of contract had continued since the judgment three months
earlier:
All the defendants have breached the lease in numerous respects,
and notwithstanding the repeated and continuing notices of
breach, objections and complaints by plaintiffs, and despite a
trial, verdict and judgment in prior litigation between the parties
conclusively establishing their breaches of lease and other
matters, they have failed and refused and continue to fail and
refuse to cease, cure or otherwise correct their violations of the
lease.
Appellants’ App. Vol. II p. 20. AOX also claimed that the Landlords’ filing of
the Porter County lawsuit constituted malicious prosecution, alleging that it
“was legally and factually frivolous, unreasonable and groundless from its
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inception, manifested bad faith both substantively and procedurally, and was
filed and prosecuted without probable cause and with malice.” Id. at 22.
[7] The Landlords moved for summary judgment on a variety of grounds.
Regarding AOX’s breach-of-contract claim, the Landlords argued, among other
things, that the claim (1) was or could have been raised in the 2008 litigation
and is therefore barred by the doctrine of res judicata and (2) is barred by the
ten-year statutory limitation period for actions on written contracts. As for
AOX’s malicious-prosecution claim, the Landlords asserted that “under no set
of facts” can AOX establish that the Landlords’ Porter County lawsuit “was
legally and factually frivolous, unreasonable or groundless, in bad faith or with
malice, or lacked probable cause[.]” Id. at 182.
[8] The trial court granted summary judgment for the Landlords. The court
concluded that AOX’s breach-of-contract claim is barred by the doctrine of res
judicata because
all the potential damages which arose out of the conduct of [the
Landlords] that gave rise to the June 11, 2012 verdict and
judgment in favor of AOX, could have been litigated but were
not sought in that litigation by AOX, even though they were
readily ascertainable with reasonable certainty, particularly
through expert testimony.
Id. at 18. On AOX’s malicious-prosecution claim, the court concluded that the
Landlords’ “primary object” in filing its Porter County lawsuit “was not to
harass or maliciously injure” AOX, that the Landlords were “able to (and, in
fact, did) present good faith and rational arguments on the merits” of its
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lawsuit, that “facts existed supporting the legal claims relied upon and
presented by” the Landlords, and that “there is no evidence of [the Landlords]
operating with furtive design or ill will[.]” Id.
[9] AOX now appeals.
Discussion and Decision
[10] AOX contends that the trial court erred by granting the Landlords’ motion for
summary judgment. We review such motions de novo, applying the same
standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
That is, “The judgment sought shall be rendered forthwith if the designated
evidentiary matter shows that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Ind.
Trial Rule 56(C).
I. Breach of Contract
[11] AOX first challenges the trial court’s grant of summary judgment to the
Landlords on AOX’s breach-of-contract claim. The trial court concluded that
the claim is barred by the doctrine of res judicata. AOX asserts that this was
error. But we do not reach the issue of res judicata, because summary judgment
is appropriate on an alternative ground advanced by the Landlords: the statute
of limitation.
[12] The applicable statute is Indiana Code section 34-11-2-11, which provides that
an action on a written contract, with a few exceptions not applicable here,
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“must be commenced within ten (10) years after the cause of action accrues.”
AOX does not dispute that the breaches underlying this case are the same that
were at issue in the 2008 litigation (e.g., failure to provide access to Route 6,
defective floor drains, lack of landscaping, inadequate/defective outdoor
lighting, defective parking lot, and deficient painting) or that these breaches
existed in 1999, thirteen years before AOX filed this lawsuit. However, AOX
argues that the Landlords’ breaches are “continuing” and that the ten-year
limitation period begins to run anew “with each new continuing breach after
the jury verdict.” Appellants’ Br. p. 34.
[13] As an initial matter, we agree with the Landlords that the phrase “new
continuing breach” is a headscratcher—that is, “if a breach is ‘continuing’ it
cannot at the same time be ‘new.’” Appellees’ Br. p. 32. More importantly, the
only two cases AOX cites in support of its statute-of-limitation argument do not
actually support that argument. In Block v. Ebner, our Supreme Court held that
tenants who had successfully sued their landlord for breach of a covenant to
repair could later bring another suit claiming that the breach was continuing,
i.e., that the landlord had not cured the breach. 54 Ind. 544, 547-49. However,
the opinion does not discuss a statute of limitation or otherwise address
whether the tenants’ second claim was timely filed, and there is no indication
that the landlord raised any such issue (as the Landlords have in this case).
[14] In the other opinion cited by AOX, Snyder v. Town of Yorktown, this Court
explained that where “the alleged injury-producing conduct was of a
continuous nature,” the applicable limitations period “begins to run at the end
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of the continuing wrongful act.” 20 N.E.3d 545, 552 (Ind. Ct. App. 2014),
trans. denied. This is known as the doctrine of “continuing wrong.” Id. Here,
though, the Landlords’ “injury-producing conduct” was not of a “continuous
nature.” The Landlords were required to deliver by a certain date premises that
matched certain plans and specifications, and they failed to do so. AOX knew
at that point—in 1999—that it had been injured. As we said in Snyder, “the
doctrine of continuing wrong will not prevent the statute of limitations from
beginning to run when the plaintiff learns of facts which should lead to the
discovery of his cause of action even if his relationship with the tortfeasor
continues beyond that point.” Id. (citations omitted); cf. Elkhart Foundry &
Mach. Co. v. City of Elkhart Redev. Comm’n, 112 N.E.3d 1123, 1132 (Ind. Ct. App.
2018) (rejecting claim of “continuing nuisance” where effects of alleged
nuisance activity persisted but activity itself had ceased), trans. denied.
[15] To the extent AOX contends that it could not have made a claim for future
damages in the 2008 litigation because it had no way of knowing what its future
damages would be, if any, it had a ready alternative: a demand for specific
performance. In other words, if AOX was concerned that the Landlords would
refuse to cure the breaches even if it lost in the 2008 litigation, it could have
asked the trial court to order the Landlords to cure the breaches. For whatever
reason, AOX did not make such a request. Instead, it waited until 2012 to file a
new breach-of-contract claim based on the same breaches it was aware of in
1999. That claim is plainly barred by the ten-year limitation period established
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by Section 34-11-2-11, and for that reason we affirm the trial court’s grant of
summary judgment in favor of the Landlords on this issue.
II. Malicious Prosecution
[16] AOX also argues that the trial court erred by granting summary judgment to the
Landlords on AOX’s malicious-prosecution claim. On this issue, we agree with
AOX.
[17] To prevail on a claim of malicious prosecution, the plaintiff must establish that:
(1) the defendant instituted or caused to be instituted an action against the
plaintiff; (2) the defendant acted with malice in doing so; (3) the defendant had
no probable cause to institute the action; and (4) the action was terminated in
the plaintiff’s favor. City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind.
2001). Here, the Landlords made a counterclaim against AOX relating to a
broken window in the 2008 litigation in Lake County, lost by directed verdict,
and then went to Porter County and filed a new lawsuit regarding the same
broken window. The Porter County court dismissed the new lawsuit “after
review of the jury proceedings and verdict from Lake County Superior
Court[.]” Appellants’ App. Vol. VI p. 117. The Porter County action was
obviously res judicata and was destined to fail.1 Whether the Landlords acted
1
A claim is barred by the doctrine of res judicata if (1) a prior judgment was issued by a court of competent
jurisdiction, (2) the prior judgment was rendered on the merits, (3) the matter now in issue was, or could have
been, determined in the prior action, and (4) the controversy adjudicated in the former action was between
the parties to the present suit or their privies. Hilliard v. Jacobs, 957 N.E.2d 1043, 1046 (Ind. Ct. App. 2011),
reh’g denied, trans. denied.
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with malice when they filed that hopeless lawsuit is an issue that should be
decided by the trier of fact, especially given the Landlords’ history of filing
lawsuits to harass AOX. We therefore reverse the trial court’s grant of
summary judgment in favor of the Landlords on AOX’s malicious-prosecution
claim.
[18] Affirmed in part and reversed in part.
Mathias, J., and Crone, J., concur.
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