                                                                   FILED
                                                              May 10 2017, 10:10 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,                                               May 10, 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.




Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017                Page 1 of 25
[1]   Cheng Song planned to purchase land from Thomas and Theresa Iatarola until

      he discovered that the land was zoned for agricultural use, rather than for

      industrial use, as had been represented to him. After terminating the purchase

      agreement, Song sued the Iatarolas for the $150,000 he had placed in escrow.

      A jury verdict awarded him the return of his money. He now appeals the trial

      court’s denial of his petition for attorney fees and prejudgment interest. The

      Iatarolas cross-appeal, arguing that the trial court erred in denying their motion

      for summary judgment and motion to correct errors. Finding that the trial

      court did not err in denying the Iatarolas’ motions, but that it did err in denying

      Song’s motions, we affirm in part, reverse in part, and remand.


                                                      Facts
[2]   In 1998, the Iatarolas purchased thirty-four acres of land that was zoned for

      agricultural use. Thomas built several structures on the property to warehouse

      equipment and inventory from his telecommunications and classic car sales

      business.


[3]   The land, which was adjacent to the Porter County Airport, was mortgaged.

      The Iatarolas decided to try to sell ten acres of their land to reduce or repay

      their debt to the bank. Thomas and Theresa agreed between themselves that

      Thomas would take charge of arranging for the sale of their land, and he acted

      as an agent on behalf of his wife from September 2010 through September 2011.

      On September 14, 2010, Thomas retained Robert Macmahon as their exclusive

      real estate agent for the sale of the ten acres.


      Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 2 of 25
[4]   On September 14, 2010, Macmahon showed Thomas a listing agreement for

      the real estate sale. The form was entitled “Listing Contract (Exclusive Right to

      Sell) Commercial-Industrial Real Estate”; under the section entitled “Seller’s

      Representations,” the property is stated to be zoned I-2 Industrial. Appellant’s

      App. Vol. II p. 90-91. Macmahon asked Thomas to review the listing to ensure

      its accuracy and asked both Thomas and Theresa to initial each page of the

      listing agreement to verify that they read it and that it was accurate. Thomas

      did so, but Theresa refused to sign her initials because the listing inaccurately

      stated that the zoning was I-2 Industrial rather than Agricultural. Theresa told

      Thomas that her reason for not initialing the listing and told him to have

      Macmahon correct the listing error.


[5]   A few days later, Thomas told Theresa that he had spoken with Macmahon and

      that the listing had been corrected. Theresa did not see or initial a corrected

      listing. On or around September 14, 2010, Macmahon began advertising the

      real estate online. The advertisements stated that the land was zoned I-2

      Industrial and that it was suitable for warehousing and other light industrial

      uses.


[6]   In December 2010, Song saw online the advertisement for the sale of the ten

      acres of land. At this time, Song was a New Jersey resident who wanted to buy

      industrial real estate in northwest Indiana to use for an imported tool business

      he wanted to start. Song arranged a meeting with Macmahon to take place on

      December 31, 2010, to visit two industrially zoned properties, one of which was

      the Iatarolas’ land. During their meeting, Song told Macmahon that he wanted

      Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 3 of 25
      to buy property that had buildings suitable for warehousing for an imported tool

      business, and they discussed Song’s ability to expand and build additional

      industrial warehousing on the property. In an internet advertisement that has

      Macmahon’s handwriting on it, the property’s type is described as “Industrial

      For Sale”; the property overview states that the land is “in an established

      industrial area.” Appellant’s App. Vol II p. 87.


[7]   Also on December 31, 2010, Song told the Iatarolas of his intended use of the

      property he wanted to purchase. That same day, Song signed a purchase

      agreement with the Iatarolas to buy their ten acres for $600,000. The contract

      was entitled “Purchase Agreement Commercial-Industrial Real Estate.”

      Appellees’ App. Vol. II p. 97.


[8]   Sometime before the signing, the Porter County Airport had stated that it might

      impose a runway protection zone in this property to comply with Federal

      Aviation Administration (“FAA”) requirements. The purchase agreement

      included a contingency clause that stated, “This agreement is contingent upon

      the Buyer’s agreement with the final approval of FAA regarding land use.” Id.

      After reviewing the airport’s proposal, Song worried that the runway protection

      zone could lead to a governmental taking of part of the property that he was

      purchasing, the removal of some of the warehousing buildings, or a restriction

      on the height of future construction. On January 6, 2011, he exercised his

      contingency right and terminated the purchase agreement.




      Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 4 of 25
[9]    For the next two and one-half months, Song and Thomas negotiated a new sale

       of a different part of the Iatarolas’ land. On March 21, 2011, they signed a

       second purchase agreement for sixteen acres, which included most of the

       original ten acres with the warehousing buildings plus additional acres of land

       outside the potential runway protection zone. This second purchase agreement

       was entitled “Purchase Agreement Commercial-Industrial Real Estate.”

       Appellant’s App. Vol. II p. 35. It required $150,000 in earnest money and

       included a provision for liquidated damages of $150,000 if either party breached

       the contract. Song and Thomas signed an addendum to the second purchase

       agreement that provided:

               Closing date will be predicated on the Seller’s ability to vacate
               and exit the subject property. A maximum of 180 days (“Due
               Diligence Period”) from the day of acceptance of this contract,
               has been agreed by both parties. When the seller advises the
               Buyer in writing, that the exit is complete, the Buyer will have 30
               days, from that date, to close.


       Id. at 40. Song deposited the $150,000 earnest money in the bank.


[10]   In early June 2011, Thomas called Macmahon to say that while reviewing the

       transaction paperwork, he saw that the September 14, 2010, listing inaccurately

       stated that the property for sale was zoned I-2 Industrial instead of Agricultural.

       Macmahon acknowledged the error and made a note to his file of the date and

       subject of their phone call. That same day, Macmahon corrected the zoning

       represented in his advertisements online so that they showed the property to be



       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 5 of 25
       zoned Agricultural. Neither Macmahon nor Thomas told Song about this

       error.


[11]   On August 7, 2011, Thomas and Song met on the property for a final

       inspection, and Thomas told Song that the property was zoned Agricultural.

       Thomas told Song that Agricultural zoning was preferred over Industrial zoning

       because the tax rate was lower; he also stated that Agricultural zoning allowed

       for the land to be used for the industrial warehousing and import tool business

       that Song wanted to start. Song told Thomas that he needed to consult an

       attorney to determine whether the Agricultural zoning would suit his needs.

       Later that day, Song saw that the online listing for the property had been

       updated to show that it was zoned Agricultural.


[12]   On August 12, 2011, Lee Lane, Song’s attorney, wrote to Macmahon to advise

       him that the Porter County zoning regulations did not permit the use of

       warehousing for industrial purposes on agriculturally-zoned property. Lane

       stated that Song would not continue with his purchase unless the Iatarolas

       secured I-2 Industrial zoning and demanded a price reduction in order to

       compensate Song for the increase in real estate tax that would result from the

       change from agricultural to industrial zoning.


[13]   The Iatarolas refused to obtain the I-2 Industrial zoning or consider a price

       reduction. Song subsequently exercised his due diligence contingency rights

       under the contract, terminated the purchase agreement within the 180-day due

       diligence period provided in the addendum, and demanded the return of his


       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 6 of 25
       $150,000 earnest money deposit, which was being held in escrow at Horizon

       Bank. The Iatarolas refused to return Song’s escrow deposit.


[14]   On September 19, 2011, Song filed a complaint against the Iatarolas, alleging

       actual fraud, constructive fraud, breach of contract, and contract rescission.

       The Iatarolas filed a counterclaim, also alleging actual and constructive fraud.

       On January 22, 2014, both parties filed motions for summary judgment; the

       trial court denied both. A jury trial took place from May 16-19, 2016. On May

       19, 2016, Song filed a motion for judgment on the evidence, which the trial

       court denied. The jury returned a verdict for Song, and the trial court entered

       judgment on the jury’s verdict in Song’s favor for $150,000. On June 20, 2016,

       the Iatarolas filed a motion to correct errors. On June 23, 2016, Song filed a

       motion for an award of attorney fees, prejudgment interest, and postjudgment

       interest. On August 12, 2016, Song filed a motion for an award of his post-trial

       attorney fees.


[15]   On August 12, 2016, the trial court held a joint hearing for the Iatarolas’ motion

       to correct errors and Song’s motions for attorney fees, prejudgment interest, and

       postjudgment interest. The trial court denied all motions. Song now appeals,

       and the Iatarolas cross-appeal.


                                     Discussion and Decision
                                     I.       Summary Judgment
[16]   On cross-appeal, the Iatarolas argue that the trial court erred when it denied

       their motion for summary judgment. In their motion for summary judgment,

       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 7 of 25
       the Iatarolas argued that there were no genuine issues of material fact regarding

       Song’s breach of the purchase agreement because nothing in the four corners of

       the contract allowed him to terminate it for zoning and because any

       representations regarding zoning could not establish the defenses or claims of

       fraud, constructive fraud, or mutual mistake.


[17]   Our standard of review on summary judgment is well established:


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘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 judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties' differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


                                   A. Contract Interpretation
[18]   The construction of a written contract is generally a question of law. The

       Winterton, LLC v. Winterton Investors, LLC, 900 N.E.2d 754, 759 (Ind. Ct. App.

       2009). When interpreting a contract, we attempt to determine the intent of the

       parties at the time the contract was made. Id. When the language of the

       contract is unambiguous, the parties’ intent is determined from the four corners


       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 8 of 25
       of the document. Id. “The unambiguous language of a contract is conclusive

       upon the parties to the contract as well as upon the court.” Id. A contract is

       ambiguous when a reasonable person could find its terms susceptible to more

       than one interpretation. Id. If a contract is ambiguous, the court may consider

       extrinsic evidence, and the construction of the contract becomes a matter for the

       trier of fact. Id.


[19]   The Iatarolas argue that the second purchase agreement did not permit Song to

       terminate the agreement because the land was zoned differently than what he

       expected. Song replies that the Iatarolas waived this argument because they

       failed to raise it before the trial court on summary judgment. We agree that the

       Iatarolas failed to present a cogent argument on this issue to the trial court and

       therefore also agree that they have waived it.


[20]   Waiver notwithstanding, at issue is paragraph nine of the addendum to the

       second purchase agreement, which reads

               Closing date will be predicated on the Seller’s ability to vacate
               and exit the subject property. A maximum of 180 days (“Due
               Diligence Period”) from the day of acceptance of this contract,
               has been agreed by both parties. When the seller advises the
               Buyer in writing, that the exit is complete, the Buyer will have 30
               days, from that date, to close.


       Appellant’s App. Vol. II p. 40. The Iatarolas read this paragraph to mean that

       they had to use due diligence to vacate the premises within 180 days; Song

       contends that a due diligence period exists for the benefit of the buyer to

       investigate facts regarding the suitability of the property for the buyer’s purpose.
       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 9 of 25
[21]   Generally, in real estate transactions, the term “due diligence” refers to the

       parties’ obligations to “investigate facts rather than make assumptions about

       them.” Hartig v. Stratman, 760 N.E.2d 668, 671 (Ind. Ct. App. 2002). In Metro

       Holdings One, LLC v. Flynn Creek Partner, LLC, 25 N.E.3d 141, 158-59 (Ind. Ct.

       App. 2014), this Court considered the role of the due diligence period in a real

       estate transaction. The purchase agreement provided:


               “4. Conditions of Performance. All of the items in this Section
               4 shall be completed and/or satisfied on or before [April 15,]
               2007 (the “Due Diligence Period”), and Purchaser’s obligations
               under this Agreement shall be contingent upon the timely and
               complete satisfaction of the following conditions precedent or
               waiver thereof by Purchaser, in writing:


                                                     *****


               “(e) Wetlands Delineation Study. Purchaser, at its cost and
               expense, may conduct or have conducted any wetland
               delineation study of the Real Estate, to determine whether there
               are any wetlands on the Real Estate under the jurisdiction of the
               Army Corps of Engineers. In the event that wetlands are
               discovered on the Real Estate, at Purchaser's election, this
               agreement shall terminate and Purchaser shall receive an
               immediate refund of the earnest money, together with any
               interest earned thereon, or Purchaser may proceed with the
               purchase and receive a reduction of the per acre price to the
               extent of any delineated wetlands located on the [Phase 2
               Property].”


       Id. This Court found that the plain language of this section of the purchase

       agreement required the buyer to complete the study and provide written notice


       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 10 of 25
       of termination prior to the end of the due diligence period. Because the buyer

       failed to do so, this Court found that the buyer breached its contract.


[22]   Unlike the purchase agreement in Metro Holdings, which specified actions that

       the buyer could take during the due diligence period and the effect of those

       actions, here, the purchase agreement does not state the purpose of the due

       diligence period. The provision supports both parties’ arguments, and because

       of the context in which the term “Due Diligence Period” is found, a reasonable

       person could find its terms susceptible to more than one interpretation, making

       it ambiguous. Its placement in a paragraph about the Iatarolas’ ability to vacate

       the property and the timing of the closing date implies that the due diligence

       period is related to their ability to actually vacate the property. And yet, as

       Song contends, such an interpretation is at odds with the law and how the term

       is generally applied in real estate transactions. When there is ambiguity in a

       contract, it is construed against its drafter. MPACT Const. Grp., LLC v. Superior

       Concrete Constructors, Inc., 802 N.E.2d 901, 910 (Ind. 2004). Therefore, the

       phrase should be construed against the Iatarolas. Accordingly, we find that the

       trial court did not err when it denied the Iatarolas’ motion for summary

       judgment based on this issue.


                        B. Representations Regarding Zoning
                                             a. Actual Fraud
[23]   In his complaint, Song alleged that the Iatarolas committed actual fraud against

       him based on the misrepresentation of the zoning of the property. In their

       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 11 of 25
       motion for summary judgment, the Iatarolas contended that they made no

       representations to Song about the zoning of the property; on cross-appeal, they

       argue that the addendum’s integration clause should foreclose Song’s fraud

       claim and that a fraud action regarding zoning representations must fail when

       the zoning laws are public record.


[24]   The elements of actual fraud are: (i) material misrepresentation of past or

       existing facts by the party to be charged, (ii) which was false, (iii) which was

       made with knowledge or reckless ignorance of the falseness, (iv) which was

       relied upon by the complaining party, and (v) proximately caused the

       complaining party injury. Rice v. Strunk, 670 N.E.2d 1280, 1289 (Ind. 1996).


[25]   In their motion for summary judgment, the Iatarolas contend that they made no

       representations of any kind to Song about the zoning of the property, but “[a]t

       the one and only occasion Song inquired about the zoning—long after the

       contract was signed and after Iatarola had vacated the property, Iatarola spoke

       truthfully of the zoning status.” Appellees’ App. Vol. VI p. 78-79. In Craig v.

       ERA Mark Five Realtors, 509 N.E.2d 1144, 1147 (Ind. Ct. App. 1987), this Court

       found that the defendants did not commit actual fraud because the “mere fact

       that the defendants represented the property as an apartment building does not

       rise to the level of an affirmative representation that the use of the property [as a

       multiple-family dwelling] was permissible under the applicable zoning

       ordinance.” We find Craig distinguishable from the present case. In Craig, this

       Court noted that the term “multi-family” used in listing documents had nothing

       to do with zoning, but was merely used by realtors to distinguish such property

       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 12 of 25
       from other kinds of residential property. Id. Here, however, the listing

       document specifically stated that the property was zoned I-2 Industrial.

       Moreover, in Craig, there was no representation to the buyer about the specific

       zoning classification. Here, a reasonable factfinder could find that the fact that

       Song viewed information that described the property as “Industrial” and stated

       that the property is “in an established industrial area,” Appellant’s App. Vol. II

       p. 87, constitutes a false material misrepresentation. The trial court did not err

       in finding a genuine issue of material fact or in denying the Iatarolas’ motion

       for summary judgment on this issue.


[26]   Regarding the Iatarolas’ arguments on cross-appeal, we note again that they

       have waived these arguments because they did not make them to the trial court

       in their motion for summary judgment. Waiver notwithstanding, we will

       address their arguments.


[27]   The Iatarolas argue that the inclusion of an integration clause precludes Song’s

       actual fraud claim. An integration clause serves “to determine the intention of

       the parties and to determine if that which they intended to contract is fully

       expressed in the four corners of the writing.” Prall v. Ind. Nat’l Bank, 627

       N.E.2d 1374, 1377–78 (Ind. Ct. App. 1994) (citing Franklin v. White, 493

       N.E.2d 161, 166 (Ind. 1986)). “Generally, where parties have reduced an

       agreement to writing and have stated in an integration clause that the written

       document embodies the complete agreement between the parties, the parol

       evidence rule prohibits courts from considering extrinsic evidence for the

       purpose of varying or adding to the terms of the written contract.” Id. (citing

       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 13 of 25
       I.C.C. Protective Coatings, Inc. v. A.E. Staley Mfg. Co., 695 N.E.2d 1030, 1035 (Ind.

       Ct. App. 1998)). An exception applies “in the case of fraud in the inducement,

       where a party was ‘induced’ through fraudulent representations to enter a

       contract.” Circle Ctr. Dev. Co. v. Y/G Ind., L.P., 762 N.E.2d 176, 179 (Ind. Ct.

       App. 2002).


[28]   The Iatarolas state that Song is a sophisticated and well-educated person who

       had “plenty of time to investigate the zoning and taxes from public record.”

       Appellee’s Br. p. 27. Song’s level of education, however, does not negate the

       fact that “a party [can] overcome the effect of an integration clause if it [can]

       show it had a right to rely on the alleged misrepresentations and did in fact rely

       on them in executing . . . [an] integration clause.” Tru-Cal, Inc. v. Conrad Kacsik

       Instrument Systems, Inc., 905 N.E.2d 40, 45 (Ind. Ct. App. 2009). We do not

       find that the mere inclusion of an integration clause defeats Song’s fraud claim

       because he had a right to rely on the Iatarolas’ representations regarding the

       zoning of the property and did, in fact, rely on them. Therefore, we find that

       the trial court did not err in finding that genuine issues of material fact exist or

       in denying the Iatarolas’ motion for summary judgment.


[29]   The Iatarolas also contend that a fraud action regarding zoning representation

       must fail because how real estate is zoned is public record, and therefore any

       representation does not constitute a past or existing fact that a party can claim

       to have relied on. Initially, we note that the Iatarolas cite legal authority from

       other jurisdictions, which is not binding in our state. In Indiana, it is well

       established that “[a] false statement made for a fraudulent purpose . . . can be

       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017    Page 14 of 25
       justifiably relied upon even though the fact misrepresented is of public record.”

       Shuee v. Gedert, 182 Ind. App. 432, 438, 395 N.E.2d 804, 808 n.3 (1979); see also

       Carrell v. Ellingwood, 423 N.E.2d 630, 635 (Ind. Ct. App. 1981) (“It is further the

       law in Indiana that a false and fraudulent representation may be relied upon by

       a person having no actual knowledge, even though the fact in question is a

       matter of public record”); Jenkins v. Nebo Props., Inc., 439 N.E.2d 686, 694 (Ind.

       Ct. App. 1982) (“A party can justifiably rely on statements which are a matter

       of public record”). Consequently, the trial court did not err in denying the

       Iatarolas’ motion for summary judgment on this issue.


                                       b. Constructive Fraud
[30]   In his complaint, Song alleged that the Iatarolas also committed constructive

       fraud against him based on the misrepresentation of the zoning of the property.

       In their motion for summary judgment, the Iatarolas contended that Song’s

       constructive fraud claim must fail because any representation about the zoning

       of the property did not constitute a past fact upon which Song could rely

       because zoning is public information; on cross-appeal, they argue for the first

       time that his claim must fail because no fiduciary relationship existed between

       the parties.


[31]   Constructive fraud arises by operation of law from a course of conduct, which,

       if sanctioned by law, would secure an unconscionable advantage, irrespective of

       the actual intent to defraud. Strong v. Jackson, 777 N.E.2d 1141, 1146 (Ind. Ct.

       App. 2002), on reh'g, 781 N.E.2d 770 (Ind. Ct. App. 2003). The elements of


       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 15 of 25
       constructive fraud are: (i) a duty owing by the party to be charged to the

       complaining party due to their relationship; (ii) violation of that duty by the

       making of deceptive material misrepresentations of past or existing facts or

       remaining silent when a duty to speak exists; (iii) reliance thereon by the

       complaining party; (iv) injury to the complaining party as a proximate result

       thereof; and (v) the gaining of an advantage by the party to be charged at the

       expense of the complaining party. Rice, 670 N.E.2d at 1284.


[32]   First, the Iatarolas allege that Song’s constructive fraud claim must fail because

       zoning information is a matter of public record, but as discussed above, Indiana

       law permits a fraud claim even when the misrepresented fact is of public record.

       The Iatarolas again rely on Craig, but again, we find that case distinguishable.

       In Craig, this Court found that a constructive fraud claim must fail because the

       information at issue was in the public record and the buyer had easy access to

       it. 509 N.E.2d at 1148. The buyer had prior experience purchasing real estate;

       he managed his properties full-time; he was licensed to sell real estate for at

       least several years before the transaction at the heart of the lawsuit took place;

       and he had at one time owned and operated a real estate school. Id. For these

       reasons, this Court found that the buyer was not an “inexperienced amateur” in

       the real estate business, but rather that he possessed the knowledge and skill to

       ascertain the zoning of the purchased property. Id. Although Song is well-

       educated, his degrees are not related to real estate; he was not an Indiana

       resident, and the record does not show whether he was familiar with Indiana

       public records; the record does not indicate that he is not an “inexperienced


       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 16 of 25
       amateur” in the real estate business like the buyer in Craig; and the record does

       not reveal whether Song had previous experience buying any kind of real estate,

       let alone the kind of land that he was seeking for his new business. That

       information is a matter of public record is not, in and of itself, sufficient to

       preclude a constructive fraud claim.


[33]   Second, once again, we note that the Iatarolas present an argument on cross-

       appeal that was not made in their motion for summary judgment to the trial

       court—namely, that Song’s constructive fraud claim must fail because no

       fiduciary relationship existed between the parties. Further, on cross-appeal, the

       Iatarolas do not present a cogent argument regarding the existence or lack

       thereof of a fiduciary relationship. Nonetheless, we will briefly address this

       argument. A constructive fraud claim need not involve a fiduciary relationship;

       the duty required for the claim may exist “where there is a buyer and a seller,

       where one party may possess knowledge not possessed by the other and may

       thereby enjoy a position of superiority over the other.” Strong, 777 N.E.2d at

       1147. The Iatarolas contend that they were not acting from a position of

       superiority because Song has multiple advanced degrees. They fail to recognize

       that under a constructive fraud claim, a position of superiority does not depend

       on a party’s education level but on the level of knowledge that a party may

       possess. We find that the Iatarolas did not present evidence that would negate

       an element of Song’s constructive fraud claim and that the trial court did not err

       in denying their motion for summary judgment on this issue.




       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017    Page 17 of 25
                                      C. Contract Rescission
[34]   In his complaint, Song asked for a judgment of contractual rescission, alleging

       that no contract was formed because there was mutual mistake on the zoning

       classification. The Iatarolas did not address this claim in their motion for

       summary judgment, making this issue waived, though they raise it in their

       cross-appeal. We note that the trial court did not grant Song’s request to

       rescind the contract. Consequently, the Iatarolas can make no claim of error on

       this issue.


                                         D. Contract Breach
[35]   In his complaint, Song alleged that the Iatarolas breached the purchase

       agreement, for, among other things, failing to provide an I-2 Industrial zoned

       property for purchase as represented and promised. In their motion for

       summary judgment and on cross-appeal, the Iatarolas contend that Song

       breached the contract when he refused to close on the transaction. The

       Iatarolas do not present a cogent argument or legal authority to support the

       position that Song caused the breach. Consequently, the trial court did not err

       in finding that a genuine issue of material fact existed as to which party

       breached the contract, and it appropriately allowed the jury to act as factfinder




       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 18 of 25
       on this issue. Therefore, the trial court did not err in denying the Iatarolas’

       motion for summary judgment on this issue.1


                                               II. Attorney Fees
[36]   On appeal, Song argues that, pursuant to the purchase agreement, he should

       receive an award for his attorney fees. The Iatarolas argue that because Song

       repudiated the purchase agreement, he cannot seek to have the agreement’s

       attorney fees provision enforced.


[37]   Indiana adheres to the American rule that, in general, a party must pay his own

       attorney fees absent an agreement between the parties, a statute, or other rule to

       the contrary. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind.

       2012). When an agreement allows one party to request attorney fees from

       another party, it is standard procedure for that party to petition the trial court

       for those fees after the jury has reached its decision in its case. Storch v. Provision

       Living, LLC, 47 N.E.3d 1270, 1275 (Ind. Ct. App. 2015) (citing R.L. Turner

       Corp., 963 N.E.2d at 459-60). A petition for attorney fees presents an issue

       separate from the merits of a case because the inquiry cannot commence until a

       party has prevailed. Id. A request for attorney fees is not ripe for consideration

       until a judgment has been reached. Id. Outside of stipulations or contracts that




       1
         In their cross-appeal, the Iatarolas also argue that the trial court erred when it denied their motion to correct
       errors after trial. Their arguments are the same as their arguments regarding their motion for summary
       judgment. We apply the same reasoning and findings to their argument regarding their motion to correct
       errors as we did for their motion for summary judgment.

       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017                              Page 19 of 25
       call for a jury’s decision on attorney fees, “parties do not have the right to have

       a jury determine a reasonable amount of fees.” Id. The trial judge is considered

       to be an expert on the question of attorney fees and may judicially know what

       constitutes a reasonable fee. Id.


[38]   The purchase agreement provided the following provision:

               Any party who is the prevailing party against any other party in
               any legal or equitable proceeding relating to this Agreement shall
               be entitled to recover court costs and reasonable attorney fees
               from the non-prevailing party.


       Appellant’s App. Vol. II p. 97. Following the jury’s verdict in his favor, Song

       filed a motion for attorney fees, prejudgment interest, and postjudgment

       interest. His motion included an affidavit from his attorney and an itemization

       of fees incurred. In a post-trial hearing regarding Song’s motion for attorney

       fees and interest, the trial court stated:


               With regard to the amount for the attorney’s fees, I’m reading the
               exact verdict from the jury. Said the jury returned into open
               court with the following verdict: Verdict for plaintiff. “We, the
               jury, decide in favor of the plaintiff and against the defendants
               that the plaintiff is entitled to and shall have the return of his
               earnest money in the amount of $150,000.” After they returned
               with that, I entered judgment on the verdict. At that point, the
               plaintiff was entitled to those funds.


               There was no request before the jury that I can recall with regard
               to attorney’s fees and interest either post or pre for the trier of fact
               to deal with. They didn’t have that. And I certainly am not
               going to be the trier of fact at this point in this proceedings. I

       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017       Page 20 of 25
               think that the most that can be said, that the plaintiff is entitled to
               judgment interest from and after . . . the 19th of May of this year.


       Bench Hearing Tr. Vol. III p. 37-38.


[39]   Song was not required to submit to the jury a request for attorney fees. In this

       case, because the jury had already fulfilled its role, the trial court was the

       appropriate trier of fact in determining whether attorney fees should have been

       awarded. Further, Song was not required to submit a petition for attorney fees

       before the jury returned its verdict; indeed, doing so would have been

       premature. The appropriate time for Song to petition the trial court for attorney

       fees was after the jury returned a verdict in his favor—which is what Song did.

       The trial court erred when, instead of ruling on the issue, it simply declined to

       consider it. Accordingly, the judgment of the trial court is reversed and

       remanded so that the trial court may consider the issue of attorney fees as

       provided for in the parties’ purchase agreement.


                                    III. Prejudgment Interest
[40]   On appeal, Song also argues that he should receive prejudgment interest. The

       Iatarolas contend that Song should not receive prejudgment interest because the

       jury verdict did not constitute a money judgment and because the $150,000

       Song placed in escrow already earned interest while in the escrow account.


[41]   Indiana Code section 24-4.6-1-101 provides for “interest on judgments for

       money whenever rendered.” A judgment for money is “any order that requires

       the payment of a sum of money and states the specific amount due, whether labeled as

       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017      Page 21 of 25
       a mandate or a civil money judgment.” Hilliard v. Jacobs, 916 N.E.2d 689, 694

       (Ind. Ct. App. 2009) (emphasis original). Prejudgment interest is awarded to

       fully compensate an injured party for the lost use of money. Fackler v. Powell,

       923 N.E.2d 973, 977 (Ind. Ct. App. 2010). It is computed from the time the

       principal amount was demanded or due and is allowable at the permissible

       statutory rate when no contractual provision specifies the interest rate. Id.; see

       also Ind. Code § 24-4.6-1-103(b). The current interest rate is 8% when there is

       no contract by the parties specifying a different interest rate. Ind. Code § 24-

       4.6-1-101.


[42]   It is well-settled that an award of prejudgment interest in a breach of contract

       action is warranted if the amount of the claim rests upon a simple calculation

       and the terms of the contract make such a claim ascertainable. Fackler, 923

       N.E.2d at 979. The test for determining whether an award of prejudgment

       interest is appropriate is whether the damages are complete and may be

       ascertained as of a particular time. Id. The award is considered proper when

       the trier of fact does not have to exercise its judgment to assess the amount of

       damages. Id. Importantly for purposes of our review, an award of prejudgment

       interest is generally not considered a matter of discretion. Id.


[43]   When Song’s attorney asked the trial court whether it ruled on its motion for

       prejudgment interest and postjudgment interest, the trial court stated:


               I said it wasn’t presented to the jury, they had nothing in front of
               them to do. You told me the fact finder was the one to do it, so
               there is none for prejudgment interest. Post judgment interest,

       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017    Page 22 of 25
               the judgment was entered on May 19th for the return of the
               money. It wasn’t a money judgment. It was an order to turn
               over in effect. It’s there. It’s available. Go get it.


                                                         ***


               You have 30 days to decide when you’re going to appeal it, this
               rather, or that. And at that point interest will be accruing on that
               at least from that May 19th date. At least. There you go.


       Bench Hearing Tr. Vol. III p. 39-40.


[44]   The Iatarolas latch onto the trial court’s statement that the jury’s verdict

       awarding Song the return of his $150,000 was not a money judgment that can

       receive prejudgment interest under the statute. They contend that the judgment

       was not a general money judgment but “rather the return of a specific item of

       property.” Appellee’s Br. p. 42. We disagree. Following the jury’s verdict, the

       trial court ordered the Iatarolas to pay a sum of money to Song and stated the

       specific amount due—this order is the very definition of a money judgment. See

       Hilliard, 916 N.E.2d at 694. Because Song was awarded a money judgment,

       and because the amount could be ascertained as of a particular time,

       prejudgment interest was warranted.


[45]   Although Song could have presented his claim for prejudgment interest to the

       jury, not doing so did not preclude his claim. In Board of Works of City of Lake

       Station v. I.A.E., Inc., 956 N.E.2d 86, 96 (Ind. Ct. App. 2011), this Court found

       that the trial court did not err when it allowed the jury to determine the amount

       of prejudgment interest owed because the jury only had to make a simple
       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 23 of 25
       mathematical computation of the statutory rate from the time of the demand for

       damages. But in other cases, this Court has taken no issue with the fact that a

       trial court, rather than a jury, has determined a prejudgment interest award.

       See, e.g., WESCO Distrib., Inc. v. ArcelorMittal Ind. Harbor LLC, 23 N.E.3d 682,

       714-15 (Ind. Ct. App. 2014) (discussing the trial court’s award of prejudgment

       interest following a jury trial). Here, the trial court was not required to defer to

       the jury on Song’s motion for prejudgment interest, and it erred by doing so.


[46]   The Iatarolas contend that because the parties entered into an escrow

       agreement, which provided the terms for the holding and release of earnest

       money deposited into an interest-bearing account, Song is not entitled to any

       prejudgment interest on the $150,000 above and beyond the interest received on

       the escrowed money. The Iatarolas do not provide any legal authority to

       support their contention that because funds are earning interest in an interest-

       bearing account that a prevailing party should not also receive prejudgment

       interest, nor do we find any legal authority to support this argument.


[47]   Nor do we find compelling the Iatarolas’ suggestion that the escrow agreement

       should control the prejudgment interest rate. The Iatarolas state that because

       the “interest rate was previously defined, the Indiana prejudgment interest

       statute does not supersede that agreement.” Appellee’s Br. p. 43. The Iatarolas

       do not state what this interest rate is, nor do we find it defined in the escrow

       agreement. But even if the escrow agreement did specify an interest rate for the

       funds while they were held in escrow, we cannot say that that interest rate

       would also apply to the rate for prejudgment interest. This Court considered a

       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017   Page 24 of 25
       similar contention in Bank One, Nat. Ass’n v. Surber, 899 N.E.2d 693 (Ind. Ct.

       App. 2009). Following a successful breach of contract claim against it, the bank

       argued that the trial court erred when it awarded prejudgment interest at the

       statutory rate of 8%, rather than at the interest rate specified for the savings

       account at issue, which was 1.5%. Id. at 705-06. This Court found that the

       contract governing the savings account did not detail the interest rate that

       should be applied to prejudgment interest, that the parties had not agreed upon

       an interest rate, and that, therefore, the interest should be calculated at the

       statutory rate of 8%. Id. at 706. Similarly, here, neither the purchase agreement

       nor the escrow agreement states an interest rate for prejudgment interest. The

       Iatarolas’ argument is unavailing.


[48]   Accordingly, we reverse and remand the trial court’s denial of Song’s request

       for prejudgment interest, and remand so that the trial court may calculate, using

       the statutory rate, the amount of prejudgment interest Song is owed. On

       remand, the trial court should also calculate the postjudgment interest at the

       statutory rate.


[49]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions to consider Song’s motions for attorney fees and

       prejudgment interest.


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




       Court of Appeals of Indiana | Opinion 64A03-1609-PL-2094 | May 10, 2017    Page 25 of 25
