Brian Dunlap and Lauren Dunlap v. Shirlena Lange

FILED
Nov 02 2018, 6:27 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
John R. Hurley John D. Cross
Joanne McAnlis Mercer Belanger, P.C.
Michael Mahoney Indianapolis, Indiana
McAnlis Law Group, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Dunlap and Lauren November 2, 2018
Dunlap, Court of Appeals Case No.
Appellants-Plaintiffs-Counterclaim 18A-PL-1212
Defendants, Appeal from the Marion Superior
Court
v. The Hon. Thomas J. Carroll,
Judge
Shirlena Lange, Trial Court Cause No.
Appellee-Defendant-Counterclaim 49D06-1607-PL-26355
Plaintiff.
Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-PL-1212 | November 2, 2018 Page 1 of 5
Case Summary
[1] In 2016, Shirlena Lange contracted with Brian and Laura Dunlap to purchase
their Marion County house, but the sale was never closed. The Dunlaps later
sold the house to another buyer and sued Lange for breach of contact. The
Dunlaps attached the purchase agreement they and Lange executed (“the
Purchase Agreement”) to their complaint. The trial court issued a pretrial order
in which it required all exhibits to be exchanged one week before trial. The
Dunlaps did not exchange the Purchase Agreement as an exhibit. The trial
court excluded the Purchase Agreement as a sanction for violating its pretrial
order and then entered judgment on the evidence in favor of Lange on the basis
that the Dunlaps could not prove their case without the Purchase Agreement.
The Dunlaps contend that the trial court improperly excluded the Purchase
Agreement. Because we conclude that the Purchase Agreement was deemed
admitted into evidence by virtue of its attachment to the Dunlaps’ complaint,
we reverse and remand for further proceedings.
Facts and Procedural History
[2] On or about March 7, 2016, Lange entered into the Purchase Agreement with
the Dunlaps. On or about April 13, 2016, Lange requested a release from the
Purchase Agreement and did not close on the previously-agreed-upon closing
date of May 5, 2016. The Dunlaps later sold the house to another buyer and
sued Lange for breach of contract on August 17, 2016. The Dunlaps attached
the Purchase Agreement to their complaint as Exhibit A. On September 2,
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2016, Lange answered the Dunlaps’ complaint and counterclaimed for the
return of her $1500 earnest money pursuant to the Purchase Agreement. On
October 16, 2017, Lange amended her answer. Lange did not deny execution
of the Purchase Agreement in either her answer or amended answer.
[3] On August 23, 2017, the trial court issued its pretrial order, in which it required
the parties to exchange all proposed trial exhibits seven days before trial or they
would be excluded. On December 19, 2017, an entry in the chronological case
summary again notified the parties to exchange proposed exhibits prior to trial.
The Dunlaps never exchanged exhibits with Lange prior to trial.
[4] On May 2, 2018, a bench trial was held, at the beginning of which the trial
court excluded the Dunlaps’ proposed exhibits, including the Purchase
Agreement. During the Dunlaps’ case, Brian testified regarding the agreement
with Lange, the circumstances under which Lange backed out of the sale, and
that a later sale was made for a lower price. After the Dunlaps rested, Lange
moved to dismiss their case pursuant to Indiana Rule of Trial Procedure 41(B)
and to dismiss her counterclaim. Lange argued that the Indiana Statute of
Frauds requires that any contract for the sale of land be evidenced by a writing,
an argument that the trial court accepted, granting Lange’s motions and
entering judgment in her favor.
Discussion and Decision
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[5] The Dunlaps contend that the trial court erroneously entered a judgment on the
evidence against them pursuant to Indiana Rule of Trial Procedure 41(B),
which provides, in part, as follows:
After the plaintiff or party with the burden of proof upon an
issue, in an action tried by the court without a jury, has
completed the presentation of his evidence thereon, the opposing
party, without waiving his right to offer evidence in the event the
motion is not granted, may move for a dismissal on the ground
that upon the weight of the evidence and the law there has been
shown no right to relief.
[6] In reviewing a motion for involuntary dismissal, this court does not reweigh the
evidence or judge the credibility of the witnesses; rather we only consider the
evidence most favorable to the verdict and the reasonable inferences therefrom.
Chem. Waste Mgmt. of Ind., L.L.C. v. City of New Haven, 755 N.E.2d 624, 635
(Ind. Ct. App. 2001). We will reverse the trial court only if the trial court’s
judgment is clearly erroneous. TMC Transp., Inc. v. Maslanka, 744 N.E.2d 1052,
1055 (Ind. Ct. App. 2001), trans. denied.
[7] The basis for the trial court’s judgment, i.e., that the Dunlaps could not prove
their case without the Purchase Agreement being in evidence, relies on the trial
court’s earlier decision to exclude the Purchase Agreement from evidence. We
conclude that this first decision, however, was clearly erroneous. Trial Rule
9.2(B) provides, in part, as follows:
When a pleading is founded on a written instrument and the
instrument or a copy thereof is included in or filed with the
pleading, execution of such instrument, indorsement, or
assignment shall be deemed to be established and the instrument,
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if otherwise admissible, shall be deemed admitted into evidence
in the action without proving its execution unless execution be
denied under oath in the responsive pleading or by an affidavit
filed therewith.
[8] Here, the Dunlaps’ pleading was founded on the Purchase Agreement, which
they attached to their complaint and the execution of which Lange has never
denied. Consequently, the Purchase Agreement was deemed admitted into
evidence by operation of Trial Rule 9.2(B), with no other action by the Dunlaps
required. Lange contends (without citation to authority) that the Purchase
Agreement was not “otherwise admissible” because the trial court excluded it.
The trial court, however, did not actually conclude that the Purchase
Agreement was inadmissible pursuant to the Indiana Rules of Evidence, it
excluded it as a sanction for the Dunlaps’ violation of its pretrial order. The
Dunlaps offer no other reason why the Purchase Agreement might not be
admissible, and we can think of none. While we do not condone
noncompliance with pretrial orders, we conclude that the trial court’s stated
reason for excluding the Purchase Agreement was not sufficient to avoid
operation of Trial Rule 9.2(B). Because the exclusion of the Purchase
Agreement was the sole basis for the entry of judgment on the evidence in favor
of Lange, we reverse the judgment of the trial court and remand for further
proceedings consistent with this opinion.
[9] The judgment of the trial court is reversed and we remand with instructions.
Bailey, J., and Mathias, J., concur.
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