Ranger Team Building, LLC v. Vince Caccavale (mem. dec.)

R
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 28 2020, 10:13 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bryan H. Babb                                            Todd A. Uzelac
Bose McKinney & Evans                                    Cole Galloway
Indianapolis, Indiana                                    Merrillville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ranger Team Building, LLC,                               December 28, 2020
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         20A-PL-547
        v.                                               Appeal from the Lake Superior
                                                         Court
Vince Caccavale,                                         The Honorable Thomas W.
Appellee-Defendant.                                      Webber, Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         45D10-1703-PL-20



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020                  Page 1 of 22
                                STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Ranger Team Building, LLC (Ranger), appeals the denial of

      its motion to correct error following the trial court’s reconsideration and

      reversal of its grant of summary judgment in favor of Ranger and against

      Appellee-Defendant, Vince Caccavale (Caccavale).


[2]   We reverse and remand for further proceedings.


                                                    ISSUE
[3]   Ranger presents the court with three issues, one of which we find to be

      dispositive and restate as: Whether the trial court abused its discretion when it

      reversed its previous summary judgment which was partially based on evidence

      presented at the damages hearing.


                      FACTS AND PROCEDURAL HISTORY
[4]   Ranger is a limited liability company wholly owned by Marc Kapsalis

      (Kapsalis). On December 8, 2016, Ranger, as seller, and Caccavale, as buyer,

      entered into a purchase agreement (Purchase Agreement) for the sale of an

      approximately thirteen-acre parcel located in rural Starke County for $57,500.

      The Purchase Agreement contained the following relevant provisions:


              JUDGE FLOOD AREA/OTHER: If the property is located in
              a flood plain, Buyer may be required to carry flood insurance at
              Buyer’s expense. Revised flood maps and changes to Federal
              law may substantially increase future flood insurance premiums
              or require insurance for formerly exempt properties. Buyer
              should consult with one or more flood insurance agents regarding

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 2 of 22
              the need for flood insurance and possible premium
              increases. Buyer X may __ may not terminate this Agreement if
              the Property requires flood insurance. Buyer X may __ may not
              terminate this Agreement if the Property is subject to building or
              use limitations by reason of the location, which materially
              interfere with Buyer’s intended use of the Property.


              K. INSPECTIONS: (Check appropriate paragraph number)


              Buyer has been made aware that independent inspections
              disclosing the condition of the property are available and has
              been afforded the opportunity to require such inspections as a
              condition of this Agreement.


              X 1. BUYER WAIVES THE RIGHT TO HAVE
              INDEPENDENT INSPECTIONS

              Buyer WAIVES inspections and relies upon the condition of the
              Property based upon Buyer’s own examination and releases the
              Seller, the Listing and Selling Brokers and all licensees associated
              with Brokers from any and all liability relating to any defect or
              deficiency affecting the Property, which release shall survive the
              closing. Required FHA/VA or lender inspections are not
              included in this waiver.


      (Appellant’s App. Vol. II, p. 37). The Purchase Agreement also provided that

      the prevailing party in any legal dispute or equitable proceeding brought in

      connection with the Purchase Agreement would be entitled to attorney’s fees

      and court costs from the non-prevailing party.


[5]   The sale’s closing date was set for January 30, 2017. After the parties executed

      the Purchase Agreement but before the closing date, Kapsalis allowed


      Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 3 of 22
      Caccavale to have a soil inspection done on the property. The soil inspector,

      Larry Huber (Huber), concluded that the property was forested wetlands and

      that the Starke County Health Department would not issue a permit for a septic

      system necessary for Caccavale to construct a home on the property. Through

      his buyer’s agent, Wade McGee (McGee), Caccavale tendered Ranger a mutual

      release from the Purchase Agreement. Ranger declined to execute the release.

      Caccavale did not attend the scheduled closing on the property.


[6]   On March 13, 2017, Ranger filed a complaint in the Lake Superior Court, Civil

      Division 6, claiming breach of contract. Ranger sought specific performance of

      the Purchase Agreement, damages, and attorney’s fees. On July 13, 2017,

      Ranger filed a motion for summary judgment, designation of evidence,

      designation of material facts, and memorandum of law. On October 12, 2017,

      Caccavale filed his response to Ranger’s summary judgment motion as well as a

      cross-motion for summary judgment, “supplemental” designation of evidence,

      and memorandum of law. (Appellant’s App. Vol. II, p. 58). On January 3,

      2018, Ranger filed its response to Caccavale’s summary judgment motion,

      objections to Caccavale’s summary judgment exhibits, additional exhibits

      responding to Caccavale’s summary judgment motion, and an additional

      designation of the issues of material fact. On May 3, 2018, Ranger

      supplemented its response with an additional affidavit by Kapsalis which does

      not appear to be in the record before us. On June 15, 2018, Caccavale filed a

      reply, and on July 13, 2018, Ranger filed its reply.




      Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 4 of 22
[7]   On August 30, 2018, the Honorable John Pera held a hearing on the parties’

      cross-motions for summary judgment. Ranger acknowledged at the hearing

      that Kapsalis had allowed Huber to inspect the property’s soil prior to the

      closing. Consistent with its written arguments and designations, Ranger argued

      that Sec. J is strictly a flood plain provision that only permits recission of the

      contract if the property requires flood insurance or if the buyer’s intended use is

      subject to building or use limitations by reason of its location in a flood plain.

      Ranger also argued that Caccavale had waived his right in Sec. K to an

      inspection and released Ranger from liability for any defects based on the

      condition of the property, such as the condition of the soil. Consistent with its

      written arguments and designations, Caccavale argued that the ‘building or use

      limitations’ language in Sec. J provided a second avenue for contract rescission

      that does not depend on the property being in a flood plain and that Sec. K only

      applies to improvements on the property, which included a pole building.


[8]   At the conclusion of the hearing, Judge Pera issued his oral ruling granting

      summary judgment in favor of Ranger and denying Caccavale the same. Judge

      Pera concluded that the language of the Purchase Agreement was clear and

      unambiguous. Judge Pera adopted Ranger’s position that Sec. J of the

      Purchase Agreement is strictly a “flood plain provision” and that the ‘building

      or use limitations by reason of its location’ language must be read in that

      context. (Transcript p. 32). Finding that no evidence had been presented that

      the property was located in a flood plain or that Caccavale’s intended use of the

      property had been subject to building or use limitations by virtue of the property


      Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 5 of 22
      being located in a flood plain, Judge Pera concluded that Caccavale was not

      entitled to rescind the Purchase Agreement. Judge Pera also concluded that

      Caccavale had waived his right to independent inspections in Sec. K. Judge

      Pera reserved ruling on the specific performance sought by Ranger and

      discussed a briefing schedule on that issue with the parties. The written order

      on the rulings issued later that day by Judge Pera provided as follows:


              The [c]ourt reserves ruling on [Ranger’s] requested remedy of
              specific performance and ORDERS the parties brief the issue
              according to the following schedule:

              ****

              Upon ruling on the appropriate remedy, the [c]ourt will enter its
              Final Judgment with respect to Summary Judgment.



      (Appellant’s App. Vol. III, p. 241).


[9]   The parties briefed the issue of remedy. In his brief, Caccavale argued against

      specific performance of the Purchase Agreement and that the trial court had

      incorrectly granted summary judgment to Ranger. Caccavale re-asserted his

      summary judgment argument that Sec. J of the contract constituted legal cause

      for nonperformance of the contract “because Starke County would not issue a

      septic permit. In the alternative, this is an issue of material fact which is not

      contradicted. If so, it is a matter for trial.” (Appellant’s App. Vol. IV, p. 51).

      In its reply, Ranger argued that Caccavale was merely attempting to re-litigate

      the summary judgment ruling. On January 10, 2019, Judge Pera issued an

      order concluding that he had the authority to grant specific performance of the

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 6 of 22
       Purchase Agreement and ordered that the matter be set for an evidentiary

       hearing to determine whether specific performance should be ordered and what,

       if any, damages should be found if the trial court declined to impose specific

       performance. Caccavale propounded a set of interrogatories to Ranger which

       Ranger moved the trial court to strike on the basis that they were only relevant

       to the matter of liability which had already been decided in Ranger’s favor on

       summary judgment. The matter was next sent to mediation, which was

       unsuccessful.


[10]   Between June 29, 2019, and July 18, 2019, Judge Pera left the bench, and the

       Honorable Thomas Webber became the pro tempore Judge presiding over this

       matter. On September 30, 2019, Judge Webber held the scheduled damages

       hearing. Kapsalis testified and on cross-examination answered questions

       regarding whether he had previously been denied a permit to install a septic

       system on the property. Over Ranger’s relevancy objections, Williams, the

       Starke County Environmentalist, testified on behalf of Caccavale that state

       regulations govern the installation of septic systems in Indiana and that you

       cannot build a home in Starke County without having a permit for a septic

       system. Caccavale testified concerning the property that he “wanted to put a

       house out there also” and that he did not proceed with the sale because he

       could not build a home on the property. (Tr. p. 83).


[11]   On October 23, 2019, Judge Webber issued an order entering summary

       judgment for Caccavale and dismissing the case. Before entering his findings of

       fact, Judge Webber noted that he found “the following facts have been

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 7 of 22
established by testimony of witnesses and documentation entered into

evidence.” (Appellant’s App. Vol. IV, p. 114). Judge Webber also observed

that he had reviewed Ranger’s real estate listing documentation for the

property, the Purchase Agreement, Ranger’s listing agent’s representation that

Ranger’s property was “a great space to build your dream home” which was

filed by Caccavale as an exhibit during the summary judgment proceedings,

McGee’s affidavit, Huber’s soil report, and Caccavale’s tendered, but rejected,

mutual release. (Appellant’s App. Vol. IV, p. 115). Judge Webber then entered

the following relevant findings of fact and conclusions thereon:


        2. [The Purchase Agreement] was entered into by [Caccavale] as
        property which was intended to be used for the construction of
        his home.


        3. Subject property was offered for sale as a “great” place to
        build a new home.


        4. Subject property was found to be incapable of construction for
        residential purposes.


        ****


        7. [Ranger] refused to terminate the [P]urchase [A]greement,
        even in view of . . . Section J to wit: [reproduces portions of Sec.
        J].


        8. The [c]ourt further notes Section K titled “Inspections” and
        that [Caccavale] waived the inspection and the conditions that
        could terminate the Agreement.


Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 8 of 22
               9. [] Section J goes beyond the point of flood insurance to say
               “Buyer may terminate the agreement if the property is subject to
               building or use limitations by reason of the location, which
               materially interferes with Buyer’s intended use of the Property.”
               Clearly, the “Use Limitation” as specified by the Starke County
               authorities prohibits any residential construction on the subject
               property. It is the “Use Limitation” which is clearly the cause of
               termination of this [P]urchase [A]greement.


       (Appellant’s App. Vol. IV, pp. 115-16). Judge Webber determined that

       “clearly, the law prohibits building of a residential home” and “the location

       materially interferes with [Caccavale’s] intended use of the property.”

       (Appellant’s App. Vol. IV, p. 116). Regarding Sec. K, the waiver provision,

       Judge Webber noted that it is “there; it is the governmental rules that prohibit

       the residential structure from being built on the property.” (Appellant’s App.

       Vol. IV, p. 116). Judge Webber reversed Judge Pera’s grant of summary

       judgment to Ranger, entered summary judgment for Caccavale, and ordered

       that each party would be responsible for its own costs.


[12]   On November 22, 2019, Ranger filed a motion to correct error in which it

       argued that its due process rights had been violated because it had no notice

       that Judge Webber would reverse Judge Pera’s grant of summary judgment

       “based in part on a hearing where Caccavale ambushed Ranger with witnesses

       that went to the core of challenging Judge Pera’s prior ruling on the merits.”

       (Appellant’s App. Vol. IV, p. 119). Ranger argued in favor of Judge Pera’s

       interpretation of the Purchase Agreement and contended, in the alternative,

       that if Judge Webber’s interpretation were to be accepted, genuine issues of


       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 9 of 22
       material fact existed precluding summary judgment, including Caccavale’s

       intent in purchasing the property and whether a septic system could be built on

       the property. On December 6, 2019, the Honorable Gina Jones granted

       Caccavale an enlargement of time to respond. On January 17, 2020, Caccavale

       filed his response in opposition to the motion to correct error. On March 5,

       2020, Judge Jones entered an order deeming Ranger’s motion to correct error

       denied as of February 5, 2020.


[13]   Ranger now appeals. Additional facts will be provided as necessary.



                               DISCUSSION AND DECISION
                                             I. Standard of Review

[14]   This case is before us following the trial court’s denial of Ranger’s motion to

       correct error, which we will review for an abuse of discretion. Santelli v.

       Rahmatullah, 

993 N.E.2d 167

, 173 (Ind. 2013). In his motion to correct error,

       Ranger challenged the trial court’s reconsideration of its grant of summary

       judgment. We review a trial court’s reconsideration of a prior ruling for an

       abuse of discretion, which occurs only when the trial court’s decision is against

       the logic and effect of the facts and circumstances before it. Celadon Trucking

       Servs., Inc. v. United Equip. Leasing, LLC, 

10 N.E.3d 91

, 94 (Ind. Ct. App. 2014),

       trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 10 of 22
                                 II. Reconsideration of Summary Judgment

[15]   Judge Pera granted summary judgment to Ranger and denied summary

       judgment to Caccavale. Ranger contends that it was denied “due process”

       when Judge Webber reconsidered Judge Pera’s grant of summary judgment

       without notice to Ranger and after a hearing where Caccavale’s witnesses

       offered testimony relevant to challenging the merits of the summary judgment

       ruling. (Appellant’s Br. p. 40). Ranger argues that it “had a right to rely upon

       Judge Pera’s written and spoken directive” that the damages hearing “would be

       for the express and limited purpose of determining if the remedy of specific

       performance was available to Ranger and not for the purpose of revisiting his

       prior summary judgment order.” (Appellant’s Br. p. 41) (emphasis is

       Appellant’s).


[16]   The Fourteenth Amendment of the federal Constitution prohibits the State from

       depriving a citizen of life, liberty, or property without the process or course of

       law that is due. Branham Corp. v. Newland Resources, LLC, 

44 N.E.3d 1263

,

       1276-77 (Ind. Ct. App. 2015). Due process includes notice and an opportunity

       to be heard, and a litigant is denied due process if he is denied the opportunity

       to present his case to the trial court after the court has determined it would hear

       argument. Bruno v. Wells Fargo Bank, N.A., 

850 N.E.2d 940

, 948 (Ind. Ct. App.

       2006). Due process applies to the initial stages of a lawsuit and to the

       proceedings within the lawsuit.

Id. [17]

  While we agree with Ranger’s general proposition that due process applied to

       the August 30, 2018, hearing which had been scheduled as a damages hearing,

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 11 of 22
       we cannot agree that the trial court denied Ranger due process when it

       reconsidered Judge Pera’s grant of summary judgment following the August 30,

       2018, hearing. Indiana Trial Rule 53.4 provides that reconsideration of a trial

       court’s ruling may be initiated by “any party or the court” and expressly states

       that “[n]o hearing shall be required . . . upon motions to reconsider orders or

       rulings upon a motion.” Trial Rule 54(B) provides in relevant part that, unless

       a trial court expressly enters judgment after finding that no just reason for delay

       exists,


                 any order or other form of decision, however designated, which
                 adjudicates fewer than all the claims or the rights and liabilities of
                 fewer than all the parties shall not terminate the action as to any
                 of the claims or parties, and the order or other form of decision is
                 subject to revision at any time before the entry of judgment adjudicating
                 all the claims and the rights and liabilities of all the parties.


       (Emphasis added). Thus, Rules 53.4 and 54(B) provide a trial court with the

       authority to reconsider its rulings prior to the entry of final judgment. The

       Rules are our supreme court’s recognition, through its rule-making authority, of

       the long-established principle that a trial court may reconsider, vacate, or

       modify any previous ruling if the case has not proceeded to final judgment. See

       Mitchell v. 10th and The Bypass, LLC, 

3 N.E.3d 967

, 971 (Ind. 2014) (recognizing a

       trial court’s authority to reconsider previous rulings provided by Rule 54(B)

       citing precedent ranging from 1959 to 1998).


[18]   Here, Judge Pera granted Ranger summary judgment on the issue of liability

       but reserved the issue of damages for further proceedings. Judge Pera did not

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 12 of 22
       expressly state in writing that he was entering final judgment on the issue of

       liability, and, thus, under Rule 54(B), that portion of the summary judgment

       was not final. See also T.R. 56(C) (providing that summary judgment on fewer

       than all the issues is interlocutory unless the trial court expressly enters final

       judgment in writing). Judge Webber reconsidered Judge Pera’s summary

       judgment ruling on liability without providing notice to the parties of his

       intention to do so, which comports with the authority granted a trial court and

       the procedure outlined by the Trial Rules, which does not provide for notice

       and a hearing before a trial court invokes that authority. In addition, Ranger

       was provided with notice and an opportunity to be heard during the summary

       judgment proceedings before Judge Pera. Ranger does not address Rules 53.4

       or 54(B), let alone argue that the Trial Rules themselves are unconstitutional.

       Therefore, we find no violation of Ranger’s right to due process.


[19]   Although we find no denial of due process, we conclude that we must remand

       based on other considerations. Trial Rule 56(C) imposes a thirty-day time limit

       for a party to designate evidence in response to a summary judgment motion.

       Our supreme court has held that, in order to reconcile a trial court’s right to

       revise its rulings before final judgment with Rule 56’s deadlines for designating

       evidence in summary judgment proceedings, when reconsidering a summary

       judgment ruling a trial court “may only consider the Rule 56 materials properly

       before it at the time the order was first entered.” 

Mitchell, 3 N.E.3d at 973

. In

       Mitchell, the trial court reconsidered and vacated its summary judgment ruling

       based on an employee’s affidavit filed over a year after its summary judgment


       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 13 of 22
       ruling.

Id. at 969-70.

Concluding that this constituted an abuse of the trial

       court’s discretion, our supreme court reversed the judgment of the trial court

       and remanded the “cause for further proceedings.”

Id. at 974. [20]

  Here, much of the evidence relied upon by Judge Webber in reconsidering the

       grant of summary judgment to Ranger was designated during the summary

       judgment proceedings. However, Judge Webber’s Order reversing the grant of

       summary judgment to Ranger and entering the same for Caccavale provided

       that “the following facts have been established by testimony of witnesses and

       documentation entered into evidence.” (Appellant’s App. Vol. IV, p. 114). The

       only witness testimony offered in this case was presented by Kapsalis,

       Williams, and Caccavale at the August 30, 2018, damages hearing. In light of

       Mitchell, Judge Webber abused his discretion in considering this testimony that

       was not designated during the summary judgment proceedings, and, therefore,

       the denial of Ranger’s motion to correct error was also an abuse of discretion.

       Accordingly, we remand to the trial court for further proceedings. See 

Mitchell, 3 N.E.3d at 974

.


[21]   In remanding this matter to the trial court, we observe that the interpretation of

       a contract is a matter of law which we review de novo. Care Grp. Heart Hosp.,

       LLC v. Sawyer, 

93 N.E.3d 745

, 751 (Ind. 2018). We acknowledge that certain

       aspects of the instant matter present us with pure questions of law that would

       have been unaffected by Judge Webber’s consideration of evidence received

       after the summary judgment proceedings; other aspects present mixed questions

       of law and fact. However, in deference to the trial court’s discretion under the

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 14 of 22
       Trial Rules to reconsider, or not to reconsider, its prior rulings, we will not

       construe the Purchase Agreement in order to allow the trial court to fully

       exercise that discretion.


                                             CONCLUSION
[22]   Based on the foregoing, we conclude that the trial court abused its discretion

       when it denied Ranger’s motion to correct error based on the reconsideration of

       the summary judgment ruling.


[23]   Reversed and remanded for further proceedings consistent with this opinion.


[24]   Altice, J. concurs


[25]   May, J. concurs and dissents with separate opinion




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 15 of 22
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Ranger Team Building, LLC,                               Court of Appeals Case No.
                                                                20A-PL-547
       Appellant-Plaintiff,

               v.

       Vince Caccavale,
       Appellee-Defendant.




       May, Judge, concurring in part and dissenting in part.


[26]   I concur with the majority’s determinations that Ranger was not denied due

       process and that the trial court abused its discretion by denying the motion to

       correct error that challenged the trial court’s reliance on improper evidence

       when reconsidering the earlier grant of partial summary judgment. I diverge,

       however, from the majority’s decision to remand this case without addressing

       the merits of the underlying cross-motions for summary judgment.




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020     Page 16 of 22
[27]   Our standard of review directs us to review de novo a trial court’s grant or

       denial of summary judgment. See Alexander v. Linkmeyer Dev. II, LLC, 

119 N.E.3d 603

, 611 (Ind. Ct. App. 2019) (“We review a summary judgment order

       with the same standard applied by the trial court.”). Furthermore, at the heart

       of the disagreement between Ranger and Caccavale is language in a contract,

       and the construction of a contract is a question of law that we also review de

       novo.

Id. at 612. I

recognize that, as the majority explains, our Trial Rules give

       trial courts discretion to reconsider their earlier decisions prior to the entry of

       final judgment, see Slip op. at 12, and/or pursuant to a motion to correct error.

       See Ind. Trial Rule 59(J). Nevertheless, the decision the trial court would be

       reconsidering is whether “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). We are in just as good a

       position as the trial court to review the evidentiary matter properly designated

       to the trial court and to resolve, as a matter of law, the meaning of the language

       in the Purchase Agreement. Accordingly, in the interest of judicial economy, I

       believe we should determine whether either of these parties is entitled to

       summary judgment or, if not, what genuine issues of material fact remain to be

       determined at trial.


[28]   The Purchase Agreement contained the following relevant provisions:


               J. FLOOD AREA/OTHER: If the property is located in a
               flood plain, Buyer may be required to carry flood insurance at
               Buyer’s expense. Revised flood maps and changes to Federal
               law may substantially increase future flood insurance premiums

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 17 of 22
        or require insurance for formerly exempt properties. Buyer
        should consult with one or more flood insurance agents regarding
        the need for flood insurance and possible premium
        increases. Buyer X may __ may not terminate this Agreement if
        the Property requires flood insurance. Buyer X may __ may not
        terminate this Agreement if the Property is subject to building or
        use limitations by reason of the location, which materially
        interfere with Buyer’s intended use of the Property.


        K. INSPECTIONS: (Check appropriate paragraph number)


        Buyer has been made aware that independent inspections
        disclosing the condition of the property are available and has
        been afforded the opportunity to require such inspections as a
        condition of this Agreement.


                X 1. BUYER WAIVES THE RIGHT TO HAVE
                INDEPENDENT INSPECTIONS

                Buyer WAIVES inspections and relies upon the condition
                of the Property based upon Buyer’s own examination and
                releases the Seller, the Listing and Selling Brokers and all
                licensees associated with Brokers from any and all liability
                relating to any defect or deficiency affecting the Property,
                which release shall survive the closing. Required
                FHA/VA or lender inspections are not included in this
                waiver.


                __ 2. BUYER RESERVES THE RIGHT TO HAVE
                INDEPENDENT INSPECTIONS (including Lead-
                Based Paint)


                Buyer reserves the right to have independent inspections in
                addition to any inspection required by FHA, VA, or
                Buyer’s lender(s). All inspections are at Buyer’s expense

Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 18 of 22
                         (unless noted otherwise or required by lender) by licensed
                         independent inspectors or qualified independent
                         contractors selected by Buyer within the following time
                         periods.


       (Appellant’s App. Vol. II at 19.)


[29]   I would hold, as a matter of law, that Section J of that Purchase Agreement

       contained two contingencies by which a buyer could terminate the contract.

       First, as indicated by the header “FLOOD AREA” and the option marked by

       the parties, a buyer could “terminate this Agreement if the Property requires

       flood insurance.” (Id.) Second, as indicated by the portion of the header that

       states “OTHER” and the option marked by the parties, a buyer could

       “terminate this Agreement if the Property is subject to building or use

       limitations by reason of the location, which materially interfere with Buyer’s

       intended use of the Property.” (Id.) Because the header stated “OTHER” I

       would read the second contingency in Section J as separate from concerns

       about flooding, 1 such that a buyer would have the option to terminate the

       Agreement for location-based building or use limitations that materially

       interfere with a buyer’s intended use of the property.


[30]   Furthermore, I would hold the inability to obtain a permit to install a septic

       system is a location-based building or use limitation, rather than a “condition of




       1
         Accordingly, Ranger’s discussion of the differences between a “wetland” and a “flood plain” are irrelevant.
       (See Br. of Appellant at 30-31.)

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020                Page 19 of 22
       the Property” for which Caccavale waived the right to hire an inspector under

       Section K. While the Purchase Agreement may have been for an

       “unimproved” property, the Purchase Agreement itself indicates a “pole barn”

       existed on the property. (See

id. at 146.)

That Subsection 2 of Section K

       provides the option to have inspections “including Lead-Based Paints” suggests

       such inspections were of existing structures on the land, not for circumstances

       of the land’s location that might impact the ability to obtain permits for future

       construction. (Id. at 22.)


[31]   Ranger asserts on appeal that the water table issue should be considered a

       “condition” that required Caccavale to reserve his right to inspections under

       Subsection 2 of Section K so that Ranger would have had the opportunity to

       “cure” the defective condition. (See Br. of Appellant at 29.) Ranger claims it

       could have lowered the purchase price or brought in “truckloads of” sand or

       dirt. (Id.) However, I see little point to providing an opportunity to lower the

       price if, regardless the price, the building or use limitation “materially

       interfere[s] with Buyer’s intended use of the Property.” (Appellant’s App. Vol.

       II at 19.) Nor does Ranger’s willingness to bring in truckloads of soil provide

       any assurance that the controlling governmental authorities will thereafter issue

       the permit necessary for installation of a septic system and residence with

       functioning bathrooms.


[32]   Having decided those two issues as a matter of law based on the language in the

       Purchase Agreement, I would remand this case for a trial on the three

       remaining genuine issues of material fact – (1) Caccavale’s “intended use of the

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 20 of 22
Property” when he signed the Purchase Agreement, (id.); (2) whether the

inability to obtain a septic permit “materially interfere[s]” with Caccavale’s

intended use, (id.); and (3) whether, in fact, a septic permit cannot be obtained.

The evidence designated by the parties prior to Judge Pera’s grant of summary

judgment on August 30, 2018, which evidence confirms the existence of those

genuine issues of material fact, included, in part, the following items.

Caccavale designated an affidavit from Huber averring that the property is a

wetland, that state and county regulations prohibit the issuance of a building

permit for land where a septic system cannot be installed, and that the county

does not issue septic permits for “wetland[,]” (id. at 60); an affidavit from

Caccavale averring his “reason to buy the property was to build a retirement

home,” (id. at 62); the real estate listing for the property indicating the land was

“[p]rime hunting ground or a great space to build your dream home[,]” (id. at

64); and an affidavit from Caccavale’s real estate agent, Wade McGee,

indicating the county building inspector confirmed a septic system would not be

approved for the property. (Id. at 74.) In response, Ranger designated evidence

indicating that the property had not been designated officially as a wetland, that

a “mound septic system” might be possible on the property, (Appellant’s App.

Vol. III at 202), and that McGee’s affidavit indicated he was helping Caccavale

inspect “property of various amounts of acreage to be used for hunting and

other outdoor recreational activities.” (Appellant’s App. Vol. II at 73.)




Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 21 of 22
[33]   Because I would resolve the legal issues before us and remand the cause to the

       trial court for trial as to the three issues of material fact that remain to be

       determined, I concur in part and dissent in part.




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-547 | December 28, 2020   Page 22 of 22

Add comment