                                                                                  FILED
      OPINION ON REHEARING                                                   Jul 06 2017, 9:10 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Robert A. Welsh                                            Benjamen W. Murphy
      Connor H. Nolan                                            Law Office of Ben Murphy
      Harris Welsh & Lukmann                                     Griffith, Indiana
      Chesterton, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Cheng Song,                                                July 6, 2017
      Appellant-Cross-Appellee,                                  Court of Appeals Case No.
                                                                 64A03-1609-PL-2094
              v.                                                 Appeal from the Porter Superior
                                                                 Court
      Thomas Iatarola and                                        The Honorable William E. Alexa,
      Theresa Iatarola,                                          Judge
      Appellees-Cross-Appellants                                 Trial Court Cause No.
                                                                 64D02-1109-PL-9151



      Baker, Judge.


[1]   The Iatarolas have filed a petition for rehearing, raising multiple arguments

      with respect to our opinion in this case. We grant the petition for the limited

      purpose of addressing their argument about the due diligence phrase in the

      addendum to their contract for the sale of their real estate. The Iatarolas argue

      that the designated evidence before the trial court on summary judgment


      Court of Appeals of Indiana | Opinion on Rehearing 64A03-1609-PL-2094 | July 6, 2017            Page 1 of 4
      showed that Song, not the Iatarolas, typed the addendum, and that the

      addendum should be construed against him.


[2]   The Iatarolas are the cross-appellants on the issue of contract interpretation.

      They did not argue or even mention in their briefs that Song drafted the

      addendum. The appendix does not present a full record of the contract drafting

      process. See, e.g., Finke v. N. Ind. Pub. Serv. Co., 862 N.E.2d 266, 272 (Ind. Ct.

      App. 2006) (holding that appellant bears the burden of presenting a complete

      record with respect to the issues raised on appeal and that we “cannot review a

      claim . . . when the appellant does not include in the record all the evidence”

      relevant to that claim).


[3]   In their petition for rehearing, the Iatarolas cite to the “Uncontested Facts”

      section of their designated materials in support of their claim that Song drafted

      the addendum. Paragraph 35 provides: “At Iatarola’s insistence, Song drafted

      and the parties signed an Addendum and Strict Escrow Agreement which

      permitted Iatarola 180 days to vacate the property and for the deposit of

      $150,000.00 to cover any damages due to any breach of the agreement.”

      Appellees’ App. Vol. VI p. 77.


[4]   In support of the claim made in paragraph 35, in turn, the Iatarolas cite to two

      pages of Song’s deposition. Song testified as follows:


              Q: The addendum to the contract, Mr. Song, did you prepare
              that?




      Court of Appeals of Indiana | Opinion on Rehearing 64A03-1609-PL-2094 | July 6, 2017   Page 2 of 4
              A: I think that we prepared it together with Tom at the time,
              back and forth maybe several times.


              Q: Did you negotiate it back and forth via email?


              A: Yeah, I think so.


              Q: But who – you typed up this addendum in this Word format;
              did you not?


              A: Yes, I typed it in; but maybe he make some changes
              according to Tom’s request, et cetera, something like that.


                                                        ***


              Q: On the addendum . . . there is a period that talked about
              closing not occurring for 180 days; do you remember that?


              [Song asks to see the exhibit]


              A: Yeah, it didn’t mention that – the 120 days. It just mentioned
              the closing date will be . . . .


      Id. at 112-13. The rest of Song’s testimony regarding the addendum is not

      included in the appendix.


[5]   This evidence does not change the outcome of the appeal. During the summary

      judgment stage and in their appeal, the Iatarolas failed to establish that no

      genuine issue of material fact existed about whether Song independently drafted

      the addendum such that its interpretation should be construed against him.


      Court of Appeals of Indiana | Opinion on Rehearing 64A03-1609-PL-2094 | July 6, 2017   Page 3 of 4
      Rather, the evidence outlined above indicates that it was the Iatarolas who

      wanted the addendum drafted, and that both parties contributed to its

      preparation.


[6]   Having addressed the Iatarolas’ argument on rehearing and finding it

      unpersuasive, we stand by our previous opinion. In all other respects, we deny

      the petition for rehearing.


      Barnes, J., and Crone, J., concur.




      Court of Appeals of Indiana | Opinion on Rehearing 64A03-1609-PL-2094 | July 6, 2017   Page 4 of 4
