      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                 Aug 30 2018, 9:19 am

      court except for the purpose of establishing                                    CLERK
      the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      Stephen A. Kray
      LaPorte, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Maryann Wolanin and James A.                             August 30, 2018
      Bridges,                                                 Court of Appeals Case No.
      Appellants/Defendants,                                   18A-PL-93
                                                               Appeal from the LaPorte Superior
              v.                                               Court
                                                               The Honorable Jeffrey L. Thorne,
      Susan Balanow,                                           Judge
      Appellee/Plaintiff.                                      Trial Court Cause No.
                                                               46D03-1704-PL-792



      Pyle, Judge.


                                        Statement of the Case
[1]   Appellants, Maryann Wolanin and James Bridges (collectively, “Sellers”),

      appeal the trial court’s denial of their Trial Rule 12(C) motion for judgment on

      the pleadings. Concluding that Sellers have not met their burden to show that

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018                     Page 1 of 7
      there are no circumstances under which Appellee Susan Balanow (“Buyer”)

      could be granted relief, we affirm the trial court’s ruling.


[2]   We affirm.


                                                      Issue
              Whether the trial court erred by denying Sellers’ motion for
              judgment on the pleadings.

                                                     Facts
[3]   On April 21, 2018, Buyer filed a complaint (the “Complaint”) in the LaPorte

      Superior Court alleging that she was entitled to specific performance and

      damages for Sellers’ alleged breach of contract. Specifically, Buyer alleged that

      Sellers failed to perform their obligations pursuant to a purchase agreement

      (“Purchase Agreement”) for the sale of Sellers’ house to Buyer. In her

      Complaint, Buyer alleged the following, in pertinent part:


              3. On or about February 18, 2017, [Buyer] and [Sellers] entered into a
              certain [Purchase Agreement]. Copy of the Purchase Agreement is
              attached hereto as Exhibit “A” and incorporated herein by this reference.

                                                         *****

              6. Pursuant to Paragraph (f) of the Purchase Agreement, the transaction
              was scheduled to close on or before April 18, 2017.

              7. The Purchase Agreement was complete, certain, fair, just, and equal.

              8. On or about April 17, 2017, [Sellers] notified [Buyer] that [Sellers] did
              not intend to proceed with the closing.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018   Page 2 of 7
      (App. Vol. 2 at 5-6). Attached as an exhibit (“Exhibit A”) to the Complaint

      was a copy of the Purchase Agreement, which contained the following

      provisions regarding offer, acceptance, and expiration:


              (x) ACCEPTANCE DATE AND BINDING CONTRACT: The
              Acceptance Date will be the date of full execution (signing) of this
              Agreement by all parties, that is, the date one party accepts all terms of the
              other party’s written and signed Offer or Counteroffer, evidence by the
              accepting party’s signature and date on the Offer or Counteroffer. The
              Acceptance must be promptly communicated (by any reasonable and
              usual mode) to the other party, thereby making this Agreement a legally
              Binding Contract. Communications to the real estate Licensee assisting
              a party as that party’s agent or facilitator (or to that Licensee’s Broker)
              will be considered to be communication to that party. True executed
              copies of the Contract must be promptly delivered to all parties.

              (y) OFFER EXPIRATION DATE & TIME: April 18th 2017
              [handwritten in blank]. If not Accepted by the date & time (or if blank,
              by the date and time on Lines 11-13), this Offer will expire. However, at
              any time before the other party’s communication of Acceptance, the
              party making the Offer may withdraw the Offer by communicating the
              withdrawal to the other party, and confirm the withdrawal by the prompt
              delivery of a written Notice of Withdrawal.

[4]   (App. Vol. 2 at 10) (emphasis in original). On the lines immediately below

      these two provisions, Buyer and Sellers each had signed and dated the Purchase

      Agreement on February 18, 2017. Just above Sellers’ signatures on line 167

      (“Line 167”), line 166 (“Line 166”) contained checkboxes next to the following

      four actions: (1) “Accepted;” (2) “Rejected;” (3) “Countered on this form;” and

      (4) “Countered on a separate Counteroffer form.” (App. Vol. 2 at 10) (emphasis

      in original). All four boxes remained unchecked.


[5]   On June 8, 2017, Sellers filed an answer (the “Answer”) in which they

      admitted, among others, Paragraphs 3, 6, 7, and 8 of Buyer’s Complaint. On

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018   Page 3 of 7
      that same date, Sellers also filed a Rule 12(C) motion for judgment on the

      pleadings, arguing that the trial court should enter judgment in their favor

      because Buyer had failed to state a claim upon which relief could be granted.

      Specifically, Sellers argued:


              The [Purchase Agreement] is not one of finality but has numerous
              contingencies that allowed the parties to not proceed after the date they
              signed it on 2-18-17, to wit:

                       A.) Line 54, buyer obtaining a loan;

                       B.) Line 67, appraisal value at least equal to purchase price;

                       C.) Lines 69-70, buyers [sic] satisfaction with property inspection;

                       D.) Lines 160-163, buyer may withdraw the offer at anytime
                       before seller’s acceptance by April 18th, 2017.

                       E.) Line 166, provides a box for [Sellers] to mark when they
                       decided to accept the purchase offer … and [Sellers] did not mark
                       nor initial that box.

                       F.) A Fortiori in paragraph 8, of the compliant [sic] [Buyer] admits
                       that prior to the deadline date of April 18 th, 2017, “[Sellers]
                       notified [Buyer] that [Sellers] did not intend to proceed with the
                       closing.”

      (App. Vol 2 at 12) (emphasis in original).


[6]   On October 4, 2017, the trial court held a hearing on Sellers’ motion, and both

      parties presented arguments. Following the hearing, the trial court issued an

      order denying Sellers’ motion for judgment on the pleadings. Sellers then filed

      a motion requesting certification for interlocutory appeal, which the trial court

      granted. Our Court subsequently accepted jurisdiction over the matter, and

      Sellers now appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018   Page 4 of 7
                                                  Decision
[7]   Initially, we note that Buyer did not file an appellee’s brief. When an appellee

      fails to submit a brief, we do not undertake the burden of developing an

      argument for the appellee. Tisdial v. Young, 925 N.E.2d 783, 784 (Ind. Ct. App.

      2010). Rather, we reverse the trial court’s judgment if the appellant establishes

      prima facie error, defined in this context as “at first sight, on first appearance, or

      on the face of it.” Id. at 784-85 (internal quotation omitted). We affirm where

      an appellant is unable to meet this burden. Id.


[8]   Sellers argue that the trial court should have granted their motion for judgment

      on the pleadings because they notified Buyer before the Purchase Agreement’s

      offer acceptance deadline that they did not intend to proceed with the sale. We

      review de novo a trial court’s grant or denial of a Rule 12(C) motion for

      judgment on the pleadings. Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind. Ct.

      App. 2012). We accept as true the well-pleaded material facts alleged in the

      complaint and base our ruling solely on the pleadings. Id. A Rule 12(C)

      motion for judgment on the pleadings is to be granted “only where it is clear

      from the face of the complaint that under no circumstances could relief be

      granted.” Id. (internal quotation omitted). For purposes of a Rule 12(C)

      motion, “[t]he ‘pleadings’ consist of a complaint and an answer, a reply to any

      counterclaim, an answer to a cross-claim, a third-party complaint, and an

      answer to a third-party complaint.” Id. “Pleadings” also include any written

      instruments attached to a pleading, pursuant to Indiana Trial Rule 9.2. LBM

      Realty, LLC v. Mannia, 981 N.E.2d 569, 576 n. 10 (Ind. Ct. App. 2012); see also

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018   Page 5 of 7
       Trial Rule 10(C) (“A copy of any written instrument which is an exhibit to a

       pleading is a part thereof for all purposes.”). Therefore, in addition to the

       Complaint and Answer, we will consider the Purchase Agreement attached to

       the Complaint.


[9]    When construing the meaning of a written instrument, our primary task is to

       determine and effectuate the intent of the parties. Bell v. Bryant Co., Inc., 2

       N.E.3d 716, 720 (Ind. Ct. App. 2013). We attempt to determine the parties’

       intent at the time the contract was made, which is ascertained by the language

       used to express their rights and duties. Id. (internal quotation omitted). If a

       contract’s language is unambiguous, the parties’ intent is determined from the

       “four corners of the instrument.” Id. Conversely, if a contract’s language is

       ambiguous or uncertain, its meaning must be determined by examining

       extrinsic evidence, which is a task usually reserved for the fact-finder. Id.


[10]   In this case, neither party alleges that the Purchase Agreement is ambiguous or

       uncertain. Buyer pleads in Paragraph 7 of her Complaint that the Purchase

       Agreement was “complete, certain, fair, just, and equal,” and Sellers admit to

       Paragraph 7 in their Answer. (App. Vol. 2 at 5). Rather, Sellers contend that

       because the pleadings show that they notified Buyer prior to the Purchase

       Agreement’s offer acceptance deadline that they did not intend to proceed with

       the closing, no circumstances can exist under which Buyer is entitled to relief.

       We disagree.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018   Page 6 of 7
[11]   A material fact at issue in this case is whether Sellers permissibly withdrew

       from the Purchase Agreement after signing on Line 167, and the pleadings

       alone do not resolve this question. Although Sellers argue that the Purchase

       Agreement contained “numerous contingencies that allowed the parties not to

       proceed after the date they signed it,” (App. Vol. 2 at 12), it is not clear from the

       face of the pleadings which of these contingencies, if any, applied to the Sellers’

       actions. Indeed, the evidence may reveal that none of these contingencies

       applied to Sellers’ actions and that they breached the Purchase Agreement by

       refusing to attend the scheduled closing. Because the pleadings leave

       unresolved a material issue of fact, a judgment on the pleadings is not

       appropriate here. Cf. Waldrip, 976 N.E.2d at 110 (“If the pleadings present no

       material issues of fact and the acts shown by the pleadings clearly entitle a party

       to judgment, an entry of judgment on the pleadings is appropriate”).


[12]   Accordingly, Sellers failed to meet their burden under Rule 12(C). We

       therefore affirm the trial court.


[13]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-93 | August 30, 2018   Page 7 of 7
