      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                    Oct 14 2015, 9:31 am
      Memorandum Decision shall not be 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                                    ATTORNEY FOR APPELLEE
      Amy L. Cueller                                            Norman L. Reed
      The Cueller Law Office                                    The Law Office of Norman Reed
      Indianapolis, Indiana                                     Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Sylvia M. Rodriguez,                                     October 14, 2015

      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               49A02-1412-CT-820
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Robert R. Altice, Jr.,
      John R. Wyse,                                            Judge.
      Appellee-Defendant.                                      Cause No. 49D05-1201-CT-1344




      Friedlander, Senior Judge

[1]   Sylvia M. Rodriguez appeals from a jury’s verdict against her in a breach of

      contract claim she brought against John R. Wyse, contending that the trial

      court erred by denying her motion for summary judgment and allowing the

      matter to proceed to trial. We affirm.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015   Page 1 of 11
[2]   Rodriquez entered into a conditional sales contract with Wyse for the purchase

      of his home located in Indianapolis. At the time Rodriguez signed the contract,

      she was accompanied by her friend, Chico Quiros, who is bi-lingual and who

      interpreted the contract for her because she does not speak, read, or write

      English. Also present was Rodriguez’s boyfriend, Ranulfo Ocampo.


[3]   The purchase price for the home was $50,000.00, with a down payment of

      $5,000.00. Rodriguez agreed to pay monthly payments of $525.00, which

      included $50.00 per month for estimated taxes and $50.00 per month for

      insurance. Rodriguez made sixteen payments toward the purchase of the

      house. Some of the payments were made on time, others were not timely, and

      the last payment was not a complete monthly payment.


[4]   On December 27, 2011, a fire occurred which caused damage to the house.

      The day after the fire, Rodriguez and Ocampo met with a representative of

      Nationwide Insurance Company. In 1997, Wyse had purchased an Allied

      Group Insurance Homeowner’s Policy for his home from Darryl Gadberry, an

      agent for AMCO/Allied Group Insurance Company, subsidiaries of

      Nationwide. Once Gadberry became aware that Wyse had moved from the

      property and began using it as a rental property, he cancelled the old policy and

      issued a new one with AMCO in March 1999 insuring the dwelling structure

      but not the personal contents. This policy was in effect at the time of the fire.

      Rodriguez learned in her meeting with the representative of Nationwide that

      Wyse and not Rodriguez was the named insured on the AMCO policy.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015   Page 2 of 11
[5]   On January 12, 2012, Rodriguez brought suit against Wyse and AMCO

      Insurance Company for breach of contract and negligent misrepresentation,

      seeking recovery of the insurance proceeds less the remaining balance on the

      contract plus interest and a temporary restraining order to prevent AMCO from

      paying the insurance proceeds to Wyse. The trial court granted Rodriguez’s

      petition for temporary restraining order, and ordered AMCO to tender the

      insurance proceeds of $86,690.00 to the Marion County Clerk. AMCO did so

      and was eventually dismissed from the action.


[6]   On May 31, 2013, Rodriguez filed her motion for summary judgment against

      Wyse seeking a judgment in her favor for $185,950.00. Wyse responded to

      Rodriguez’s motion, which included his counterclaims against Rodriguez for

      breach of contract and tortious interference with his insurance contract. He

      also sought partial summary judgment in relation to his counterclaims.


[7]   The trial court set the motions for hearing, after which the trial court entered its

      order denying Rodriguez’s motion for summary judgment and Wyse’s motion

      for partial summary judgment finding that there remained genuine issues of

      material fact. The trial court’s order granted in part Rodriquez’s motion to

      strike certain evidence designated by Wyse in support of his own motion for

      partial summary judgment and in response to Rodriguez’s motion for summary

      judgment.


[8]   PNC Bank, N.A., who was not a party to the litigation, filed a motion to

      intervene in the action, asserting an interest in the AMCO insurance proceeds.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015   Page 3 of 11
       PNC claimed that the promissory note entered into with Wyse, which was

       secured by a mortgage on the house, was the basis for its interest in the

       proceeds.


[9]    The matter proceeded to a jury trial on November 5, 2014. At the conclusion of

       the trial, the jury returned a verdict in favor of Wyse and against Rodriguez on

       her breach of contract claim, making no monetary award to Wyse or any

       decision concerning the disbursement of the insurance proceeds. The trial court

       entered judgment on the jury’s verdict that same day. On December 2, 2014,

       Rodriguez filed her notice of appeal from the trial court’s denial of her motion

       for summary judgment.


[10]   On December 5, 2014, Rodriguez filed a motion for emergency stay pending

       appeal, which this Court granted in part and denied in part on December 17,

       2014. The trial court was ordered to stay the disbursement of the AMCO

       insurance proceeds as to Wyse but directed the court to disburse $16,502.11 to

       PNC. Insurance proceeds totaling $70,187.89 remain with the Marion County

       Clerk pending resolution of this appeal. PNC was allowed to intervene in this

       appeal and asks this Court to allow the prior disbursement to it to be affirmed.


[11]   Rodriguez claims that the trial court erred by denying her motion for summary

       judgment and allowing the matter to proceed to trial. In an Indiana summary

       judgment proceeding, “the party seeking summary judgment must demonstrate

       the absence of any genuine issue of fact as to a determinative issue, and only

       then is the non-movant required to come forward with contrary evidence.”


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015   Page 4 of 11
       Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.

       1994). T.R. 56(C) provides in pertinent part:

               At the time of filing [a] motion [for summary judgment] or
               response, a party shall designate to the court all parts of
               pleadings, depositions, answers to interrogatories, admissions,
               matters of judicial notice, and any other matters on which it
               relies for purposes of the motion. A party opposing the motion
               shall also designate to the court each material issue of fact which
               that party asserts precludes entry of summary judgment and the
               evidence relevant thereto. 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.
[12]   Summary judgment should not be entered where material facts conflict or

       where conflicting inferences are possible. Miller v. Monsanto Co., 626 N.E.2d

       538 (Ind. Ct. App. 1993). When we review the grant or denial of a motion for

       summary judgment our standard of review is the same as that used by the trial

       court. J.C. Spence & Assocs., Inc. v. Geary, 712 N.E.2d 1099 (Ind. Ct. App. 1999).

       We must determine whether there is a genuine issue of material fact and

       whether the moving party is entitled to judgment as a matter of law. Id. In

       resolving those inquiries, we consider only the evidence that has been

       specifically designated to the trial court. Id. The party appealing the trial

       court’s ruling has the burden of persuading this court that the trial court’s

       decision was erroneous. Id. A summary judgment determination shall be made

       from any theory or basis found in the designated materials. Id. “We give

       careful scrutiny to the pleadings and designated materials, construing them in a

       light most favorable to the non-movant.” Id. at 1102 (quoting Diversified Fin.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015   Page 5 of 11
       Sys., Inc. v. Miner, 713 N.E.2d 293, 297 (Ind. Ct. App. 1999)). The fact that the

       parties make cross-motions for summary judgment does not alter our standard

       of review. Wank v. Saint Francis College, 740 N.E.2d 908 (Ind. Ct. App. 2000),

       trans. denied.


[13]   The trial court’s denial of Rodriguez’s motion for summary judgment is correct

       for a number of reasons as there were genuine issues of material fact that

       precluded entry of summary judgment.


[14]   The conditional sales contract provided under section four that Rodriguez, the

       purchaser, would “maintain all taxes and insurance on said property until all

       payments have been paid in full to the seller.” Appellant’s App. p. 52. Under

       section twelve of the contract, Wyse, the seller, agreed to “purchase fire and

       dwelling insurance on said property and be responsible for all tax payments”

       during the term of the contract. Id. at 53. The parties also signed a document

       explaining the components of the monthly payments, which included $50.00 for

       taxes and $50.00 for insurance. Id. at 54.


[15]   Rodriguez alleged in her complaint that Wyse was in breach of contract by

       failing to pay Rodriguez the proceeds of the insurance policy less the unpaid

       balance due on the contract plus interest. She further alleged that Wyse was in

       breach of the contract by failing to purchase an insurance policy covering

       Rodriguez’s personal property in the first place.


[16]   Rodriguez designated her own affidavit in support of her motion. In paragraph

       thirteen of her affidavit, she stated that at the time she signed the contract she

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015   Page 6 of 11
       wanted to purchase her own homeowner’s policy to insure the house and her

       personal property. Id. at 41. She further stated that Wyse told her that she

       needed to pay him for the insurance he already had obtained for the house, also

       indicating that she need not buy additional insurance. Rodriguez also claimed

       that she would not have paid Wyse each month for insurance had she known

       that she was not a named insured on the policy and that the coverage Wyse

       obtained on the house was as a rental property with no coverage for personal

       belongings.


[17]   Rodriguez also designated Ocampo’s affidavit in support of her motion. Id. at

       51. In paragraph three of Ocampo’s affidavit he stated that he was present

       when Wyse insisted that Rodriguez include the cost of the house insurance in

       her monthly payment because Wyse already had insurance coverage for the

       house. Ocampo claimed that Wyse told Rodriguez that there was no need for

       her to purchase additional insurance. He further stated that he was present

       when Rodriguez met with Gadberry and learned at that time that Rodriguez

       was not a named insured on the policy.


[18]   Wyse, in response to Rodriguez’s motion and in support of his own motion,

       designated his affidavit. Id. at 93. Wyse claimed that at the time the contract

       was signed, he informed Rodriguez, Ocampo, and Quiros that the insurance

       covered only the dwelling. He stated that he told Rodriguez she would have to

       purchase her own renter’s insurance in order to insure her personal property.

       He also stated that Rodriguez discussed getting renter’s insurance with Ocampo

       and Quiros, but decided not to do so. He further stated that he did not tell

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015   Page 7 of 11
       Rodriguez that she would be a named insured on the policy he had purchased,

       specifically explaining to her that his mortgage company required him to have

       dwelling and fire insurance on the house. Wyse indicated that on several

       occasions after the contract signing, he told Ocampo that the insurance did not

       cover their personal property and advised them to obtain renter’s insurance,

       which could be purchased at little cost.


[19]   Wyse also designated the affidavit of his ex-wife, Karen Wyse, in support of his

       response to Rodriguez’s motion and his own motion. Id. at 101. In her

       affidavit, Karen stated that she was present on an occasion shortly after the

       contract was signed when Wyse called Ocampo and explained that Wyse’s

       insurance would not cover Rodriguez and Ocampo’s personal belongings.


[20]   The contract did not contain a provision establishing the requirements that

       Wyse name Rodriguez as an insured on the policy, or that he obtain insurance

       coverage for her personal property. The contract also did not contain a

       provision that Wyse must pay the insurance proceeds less the balance due on

       the contract to Rodriguez. Additionally, the affidavits of Wyse, his ex-wife,

       Karen, Ocampo, and Rodriguez establish genuine issues of material fact which

       preclude the entry of summary judgment on Rodriguez’s complaint. The trial

       court did not err by denying Rodriguez’s motion for summary judgment.


[21]   Next, Wyse claims on cross-appeal that the trial court erred by denying his

       motion for partial summary judgment. In his motion for partial summary




       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015   Page 8 of 11
       judgment Wyse claimed entitlement to the balance remaining on the

       conditional sales contract, or $38,400.00.


[22]   We first observe that Wyse prevailed at trial and the balance remaining with the

       Marion County Clerk is more than sufficient to satisfy the remaining balance

       due on the contract. “An issue is deemed moot when it is no longer ‘live’ or

       when the parties lack a legally cognizable interest in the outcome of its

       resolution.” Jones v. State, 847 N.E.2d 190, 200 (Ind. Ct. App. 2006), trans.

       denied. “Stated differently, when we are unable to provide effective relief upon

       an issue, the issue is deemed moot, and we will not reverse the trial court’s

       determination ‘where absolutely no change in the status quo will result.’” Id.

       (quoting In re Utley, 565 N.E.2d 1152, 1155 (Ind. Ct. App. 1991)). We will not

       reverse the trial court’s denial of Wyse’s motion for partial summary judgment

       on this issue.


[23]   In Wyse’s motion, he also challenged Rodriguez’s allegation of negligent

       misrepresentation with respect to insurance coverage, contending that he was

       entitled to summary judgment on that issue as well. Wyse also challenges that

       claim on appeal. In Rodriguez’s reply brief, she contends that the issue is moot

       because that claim was withdrawn prior to trial. Reply Br. p. 4. The

       Chronological Case Summary included in the Appellant’s Appendix does not

       provide this Court with an entry verifying Rodriguez’s assertion. Nonetheless,

       the jury verdict, which is included in the Appellant’s Appendix at page 123,

       reflects a jury verdict “in favor of the Defendants, John R. Wyse and Karen



       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015   Page 9 of 11
       Wyse, and against the Plaintiff, Sylvia M. Rodriguez on her breach of contract

       claim.”


[24]   Consequently, Wyse did not suffer a judgment against him on Rodriguez’s

       negligent misrepresentation claim. We find no error here as negligent

       misrepresentation claims, while recognized as tort claims in Indiana, are

       generally applied to only those individuals whose primary function is to render

       a professional opinion. See, e.g., Indianapolis- Marion Cnty. Pub. Library v.

       Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010) (claim brought against

       engineering subcontractors); U.S. Bank, N.A. v. Integrity Land Title Corp., 929

       N.E.2d 742 (Ind. 2010) (claim brought against title insurance company and title

       commitment issuer); Greg Allen Constr. Co. v. Estelle, 798 N.E.2d 171 (Ind. 2003)

       (claim brought against construction corporation and corporation’s president).


[25]   Wyse also contends that Rodriguez’s counsel should be sanctioned under both

       the trial and appellate rules for certifying that there is good ground to support

       the pleading signed. Wyse focuses specifically on the negligent

       misrepresentation claim. Indiana Trial Rule 11 grants the trial court discretion

       to impose sanctions where a motion is determined to contain information the

       attorney knows to be false. Ind. Trial Rule 11; Zwiebel v. Zwiebel, 689 N.E.2d

       746 (Ind. Ct. App. 1997), trans. denied. Indiana Appellate Rule 66(E) permits

       this Court to assess damages if an appeal is frivolous or in bad faith and may

       include an award of attorney fees. “A strong showing is required to justify an

       award of appellate damages, and the sanction is not imposed to punish mere

       lack of merit, but something more egregious.” Harlan Bakeries, Inc. v. Muncy,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015   Page 10 of 11
       835 N.E.2d 1018, 1038 (Ind. Ct. App. 2005) (quoting Manous, LLC v.

       Manousogianakis, 824 N.E.2d 756, 767-68 (Ind. Ct. App. 2005)).


[26]   The record before us does not support a finding that Rodriguez’s counsel signed

       a pleading containing allegations known to be false. Additionally, even though

       Rodriguez did not prevail in the trial court or here on appeal, we are not led to

       the conclusion that something more egregious than an argument lacking merit

       occurred in this appeal such that sanctions are warranted. We decline to enter

       the requested sanctions.


[27]   Last, the trial court correctly released payment from the insurance proceeds to

       PNC. We find no error in that decision.


[28]   Judgment affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CT-820 | October 14, 2015   Page 11 of 11
