MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 27 2018, 8:43 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Curtis Pearman Scott J. Fandre
Naples, Florida Krieg DeVault, LLP
Mishawaka, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Curtis Pearman, June 27, 2018
Appellant-Plaintiff, Court of Appeals Case No.
73A05-1708-PL-2040
v. Appeal from the Shelby Circuit
Court
Stewart Title Guaranty The Honorable Charles D.
Company, O’Connor, Jr., Judge
Appellee-Defendant. Trial Court Cause No.
73C01-1406-PL-18
Mathias, Judge.
[1] Curtis Pearman (“Pearman”) appeals the order of the Shelby Circuit Court
granting summary judgment in favor of Stewart Title Guaranty Company
(“STGC”) in Pearman’s claim for extra-contractual damages arising out of a
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title insurance policy issued by STGC to Pearman. On appeal, Pearman
presents eleven issues, which we consolidate and restate as the following four:
I. Whether the trial court erred in granting summary judgment against
Pearman on his claim of negligent misrepresentation against STGC;
II. Whether the trial court erred in granting summary judgment against
Pearman on his claim of insurer bad faith against STGC;
III. Whether the trial court erred by failing to grant attorney fees to
Pearman; and
IV. Whether the trial court erred by failing to grant punitive damages to
Pearman.
[2] We affirm.
Facts and Procedural History
[3] This case involves Pearman’s attempt to purchase certain real estate in
Shelbyville, Indiana, known as the Tippecanoe Press Building complex.
Originally, the Wickizer Family Trust owned the real estate, which consisted of
four separate parcels. Shelby County Bank subsequently obtained title to three
of these parcels. The first parcel was a thirty-thousand-square-foot commercial
complex; the second parcel was a private alley; and the third parcel (“Parcel
3”), which is at issue here, contained a garage and parking spaces. Shelby
County Bank was later placed in receivership, with the Federal Deposit
Insurance Corporation (“FDIC”) acting as receiver.
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[4] In 2013, Pearman sought to purchase the three parcels owned by FDIC. 1 On
August 28, 2013, Hale Abstract Company, Inc. (“Hale”) procured a title
commitment2 from STGC regarding the three parcels. However, Parcel 3 had
been sold to a nearby church by Shelby County Bank prior to its being placed in
receivership. Pearman eventually paid FDIC $5,000 for a quitclaim deed to
what he believed contained all three parcels. And STGC issued a title policy on
October 16, 2013, for all three parcels.
[5] When Pearman learned that he did not have title to Parcel 3, he submitted a
claim under the policy for Parcel 3 to STGC on January 10, 2014. On January
14, 2014, STGC sent Pearman notice that it had appointed a claims counsel to
review his claim. On June 24, 2014, STGC’s claims counsel offered to settle the
matter for $8,000 in exchange for a release from liability regarding Parcel 3.
1
Pearman claims that he hoped to purchase the fourth parcel from the Wickizer Trust.
2
As explained in Izynski v. Chicago Title Insurance Co., 963 N.E.2d 592 (Ind. Ct. App. 2012), trans. denied:
A title commitment is a document that describes the property as the title insurer is willing to
insure it and contains the same exclusions and general and specific exceptions as later
appear in the title insurance policy. Ordinarily a commitment is ordered by the seller for the
purpose of exhibiting it to the buyer as a representation of the quality of the title seller
expects to sell to the buyer. A title commitment naturally contemplates a search by the title
insurer of the chain of title, an opinion by an expert of what the search reveals, a guaranty
that the search was accurate and that the title commitment expresses the quality of the title
of the seller as shown by the record. The person who seeks a title insurance commitment
expects to obtain a professional title search, as well as a professional legal opinion as to the
condition of the title and a guaranty that the title expressed in the commitment will be
insured to the extent of the policy coverage. The title insurer does not agree to clear the title;
rather by its commitment, the title company agrees to afford coverage in a title policy later
to be issued insuring the title according to its commitment.
Id. at 594 (citations omitted). Here, STGC issued an initial title commitment, then later issued a title policy.
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[6] Pearman did not accept the offer but filed a complaint against Hale and STGC
on June 27, 2014. The complaint sought a declaratory judgment that STGC had
a duty to indemnify Pearman under the Policy and that STGC negligently
misrepresented the status of the title to Parcel 3. The complaint also included a
claim for breach of contract based on the Policy, a claim of damages as a result
of the defendants’ negligent misrepresentation, and a claim for attorney fees.
[7] STGC and Hale obtained an appraisal of Parcel 3, which determined that the
value of the other parcels without Parcel 3 was diminished by $30,000. The
defendants then offered to settle the case for this amount, but Pearman again
declined the offer. Eventually, STGC made a litigation decision to file a
counterclaim for a declaratory judgment, asking the trial court to approve the
tender of the $70,000 policy limits to Pearman and end any further litigation,
effectively interpleading the policy limits.
[8] On December 19, 2016, Pearman filed a motion for summary judgment, and on
January 17, 2017, STGC filed a response and a cross-motion for summary
judgment. The trial court held a hearing on both motions on January 18, 2017.
On March 22, 2017, the trial court entered findings of fact and conclusions of
law granting STGC’s motion for summary judgment, thereby entering an award
of the $70,000 policy limits to Pearman. The court’s summary judgment order
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otherwise denied Pearman’s motion for summary judgment as to its claims
against STGC.3
[9] On April 20, 2017, Pearman filed a motion to correct error. Five days later, the
court set the matter for a hearing to be held on May 31, 2017. STGC filed a
response to Pearman’s motion on May 8, 2017. On May 31, 2017, the trial
court held a hearing on Pearman’s motion to correct error. On June 29, 2017,
the trial court entered an order on its chronological case summary (“CCS”)
stating that it was, pursuant to its authority under Indiana Trial Rule 53.3,
extending the deadline for its ruling on the motion to correct error to July 31,
2017. The trial court then entered its order denying Pearman’s motion to
correct error on that date. Pearman filed his notice of appeal on August 24,
2017, and this appeal ensued.4
Standard of Review
[10] Our standard for reviewing a trial court’s order granting a motion for summary
judgment is well settled. A trial court should grant a motion for summary
judgment only when the evidence 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. Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind. Ct. App. 2012) (citing Ind.
Trial Rule 56(C)). The trial court’s grant of a motion for summary judgment
3
The trial court’s order granted summary judgment in favor of Pearman on certain claims against Hale.
4
Pearman has proceeded pro se at the summary judgment proceedings and on appeal. Indiana courts have
long held that pro se litigants are held to the same legal standards as licensed attorneys. Basic v. Amouri, 58
N.E.3d 980, 983 (Ind. Ct. App. 2016) reh’g denied.
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comes to us cloaked with a presumption of validity. Id. “‘An appellate court
reviewing a trial court summary judgment ruling likewise construes all facts and
reasonable inferences in favor of the non-moving party and determines whether
the moving party has shown from the designated evidentiary matter that there is
no genuine issue as to any material fact and that it is entitled to judgment as a
matter of law.’” Id. (quoting Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186
(Ind. 2010)). However, a de novo standard of review applies where the dispute is
one of law rather than fact. Id. On appeal, we examine only those materials
designated to the trial court on the motion for summary judgment, and we must
affirm the trial court’s entry of summary judgment if it can be sustained on any
theory or basis in the record. Id.
I. Negligent Misrepresentation
[11] Pearman first argues that the trial court erred as a matter of law for not finding
STGC liable for negligent misrepresentation in its title commitment. Pearman
notes that the trial court found Hale liable for negligent misrepresentation, but
failed to make a similar determination of liability with regard to STGC.
[12] The tort of negligent misrepresentation has been described as follows:
One who, in the course of his business, profession, or
employment, or in any other transaction in which he has a
pecuniary interest, supplies false information for the guidance of
others in their business transactions, is subject to liability for
pecuniary loss caused to them by their justifiable reliance upon
the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information.
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U.S. Bank, N.A. v. Integrity Land Title Corp., 929 N.E.2d 742, 747 (Ind. 2010)
(quoting Restatement (Second) of Torts § 552 (1977)).
[13] In U.S. Bank, our supreme court considered the issue of whether a title insurer
could be liable under a theory of negligent misrepresentation, separate and
apart from the contractual obligations of the title policy itself. In addressing this
question, the court first noted that:
We agree with the authorities which hold that there may be tort
liability for misrepresentations made in preliminary
commitments for title insurance. In our view, such commitments
provide an essential service to prospective buyers and lenders.
They are told what transactions must take place before they can
receive clear title or an effective security.
U.S. Bank, 929 N.E.2d at 749 (quoting Bank of California, N.A. v. First Am. Title
Ins. Co., 826 P.2d 1126, 1129 (Alaska 1992)).
[14] The U.S. Bank court also observed that insureds, escrow agents, and lenders
typically rely on preliminary title reports. 929 N.E.2d at 749. Title insurance
companies not only have full knowledge of this reliance but also encourage
such reliance. Id. “Title searches are frequently required in situations involving
transactions in which the state of the title must be known accurately or the
customer foreseeably will suffer harm that is both certain and direct.” Izynski v.
Chicago Title Ins. Co., 963 N.E.2d 592, 597 (Ind. Ct. App. 2012) (citing U.S.
Bank, 929 N.E.2d at 749), trans. denied. “Title insurers give a preliminary
commitment to property purchasers or lenders before the closing of the real
estate transaction. The buyer or lender then may negotiate with the seller or
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borrower for the removal of any listed title defects, bargain to pay a lower
amount to take subject to those risks, or rescind the transaction.” Id. (citing U.S.
Bank, 929 N.E.2d at 749). Thus, a buyer or lender who receives a clear
preliminary commitment at this stage of the transaction perceives it to be a
representation that the seller or borrower has a clear title and may close the
transaction in reliance upon it. Id. (citing U.S. Bank, 929 N.E.2d at 749). All of
this would, at first blush, seem to support Pearman’s claim.
[15] Importantly, however, the U.S. Bank court held that a title insurance company
could be held liable to a lender under the theory of negligent misrepresentation
“if the title company and the lender did not have a contractual relationship.” Id.
(emphasis added) (citing U.S. Bank, 929 N.E.2d at 745). In U.S. Bank, the
lender, Integrity, argued that it was not in contractual privity with U.S. Bank.
929 N.E.2d at 745. “This,” our supreme court held, was “a critical point.” Id.
The court held that, “[w]ere there to be a contract between Integrity and U.S.
Bank, the parties in all likelihood would be relegated to their contractual
remedies.” Id. Indeed, the U.S. Bank court explicitly declined to “adopt the
proposition that a tort claim for negligent misrepresentation may be brought
where the parties are in contractual privity.” Id. at 749 n.6.
[16] Here, there is no genuine issue of material fact regarding whether Pearman and
STGC are in contractual privity. They are. STGC issued the title commitment
to Pearman, and the title insurance policy lists Pearman as the named insured.
Thus, pursuant to U.S. Bank, Pearman may not bring a claim of negligent
misrepresentation against STGC because the parties are in contractual privity.
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See id.; cf. Izynski, 963 N.E.2d at 597 (holding that buyers were not in
contractual privity with title insurance company at the time they agreed to
purchase the property because the title commitment had been issued to a
different prospective buyer and that buyers could therefore sue title insurer for
negligent misrepresentation). We therefore cannot say that the trial court erred
by granting summary judgment in favor of STGC with regard to negligent
misrepresentation.5
II. Bad Faith
[17] Pearman also claims that the trial court should have found STGC liable for
various acts of bad faith. “Indiana law has long recognized that there is a legal
duty implied in all insurance contracts that the insurer deal in good faith with
its insured.” Erie Ins. Co. v. Hickman ex rel. Smith, 622 N.E.2d 515, 518 (Ind.
1993).
An insurance company’s duty of good faith and fair dealing
includes the obligation to refrain from: (1) making an unfounded
refusal to pay policy proceeds; (2) causing an unfounded delay in
making payment; (3) deceiving the insured; and (4) exercising an
unfair advantage to pressure an insured into settlement of his
claim. To prove bad faith, the plaintiff must establish by clear
and convincing evidence that the insurer had knowledge that
5
In his argument regarding negligent misrepresentation, Pearman cites Dreibelbiss Title Co. v. MorEquity, Inc.,
861 N.E.2d 1218 (Ind. Ct. App. 2007), trans. denied, for the proposition that the policy limits do not control
the amount of damages. See id. at 1222 n.5 (noting that we have previously held that “‘policy limits restrict
the amount the insurer may have to pay in the performance of the contract, not the damages that are
recoverable for its breach.” (quoting Ind. Ins. Co. v. Plummer Power Mower & Tool Rental, Inc., 590 N.E.2d 1085,
1090 (Ind. Ct. App. 1992) (emphasis added in Dreibelbiss)). We find Dreibelbiss to be inapposite here, as
Pearman may not bring a claim of negligent misrepresentation at all, and we are therefore not dealing with
the issue of the damages he might recover.
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there was no legitimate basis for denying liability. Poor judgment
or negligence do not amount to bad faith; the additional element
of conscious wrongdoing must also be present. Thus, [a] finding
of bad faith requires evidence of a state of mind reflecting
dishonest purpose, moral obliquity, furtive design, or ill will.
Missler v. State Farm Ins. Co., 41 N.E.3d 297, 302 (Ind. Ct. App. 2015) (citations
and internal quotations omitted).
[18] Here, however, Pearman’s did not bring a claim of bad faith against STGC in
his complaint. In fact, bad faith is not mentioned in his complaint at all. A
claim that is not pleaded cannot be presented for the first time in a motion for
summary judgment. See 5200 Keystone Ltd. Realty, LLC v. Filmcraft Labs., Inc., 30
N.E.3d 5, 12 (Ind. Ct. App. 2015).
[19] Pearman relies upon paragraph 38 of his complaint, which is under the
declaratory judgment section of the complaint and provides as follows:
38. Pearman seeks a declaration from the court whether Stewart
has committed a tort separate and distinct from any contractual
obligations of Stewart for failure of the Commitment and/or
Policy to disclose the 2008 Deed, The First Baptist Church of
Shelbyville Indiana’s interest in Parcel III, and the Tax Parcel.
Appellant’s App. Vol. 2, p. 46. However, asking the court to declare that STGC
committed a tort is not equivalent to adequately pleading a claim of insurer bad
faith.
[20] Pearman also claims that he put STGC on notice of his bad faith claims in
paragraphs 40 and 43 of his complaint. These paragraphs provide:
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40. Stewart has failed to perform by wrongfully refusing to
indemnify Pearman and has failed to acknowledge Stewart’s
responsibilities for liabilities arising from Parcel III and the 2008
Deed, which constitutes a breach of the Policy.
***
43. Pearman has performed all conditions precedent to recover
under the Policy and Commitment: Pearman has not excused
Stewart’s non-performance.
Id. at pp. 46–47 (emphases added).
[21] These paragraphs are set forth under Count II of the complaint, which alleges a
breach of contract. These paragraphs allege a breach of the Policy and the right
to recover under the Policy, respectively. There is nothing alleged in these
paragraphs, or the rest of the complaint, that would have put STGC on notice
that Stewart was seeking recovery under a theory of insurer bad faith. See Shields
v. Taylor, 976 N.E.2d 1237, 1245 (Ind. Ct. App. 2012) (holding that, under
notice pleading, the issue of whether a complaint sufficiently pleads a certain
claim turns on whether the opposing party has been sufficiently notified
concerning the claim so as to be able to prepare to meet it).
[22] Nor is there any indication that STGC impliedly consented to trying the newly
raised issue of bad faith. To the contrary, when Pearman first raised the issue of
bad faith in his cross-motion for summary judgment, STGC argued in its
response thereto that Pearman had not pleaded a claim of insurer bad faith and
could not obtain summary judgment in his favor for this reason. Appellant’s
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App. Vol. 4, p. 40; See also 5200 Keystone Ltd., 30 N.E.3d at 13 (holding that
common-law remedies were unavailable to plaintiff where plaintiff did not
plead any common-law theory of relief and instead presented the issue for the
first time in its brief opposing summary judgment and that defendant did not
impliedly consent to the non-pleaded issue where defendant objected to the
newly raised issues). We therefore conclude that the trial court did not err in
rejecting Pearman’s claims of insurer bad faith.
III. Attorney Fees
[23] As part of his argument regarding bad faith, Pearman also claims that the trial
court erred by not granting him attorney fees. Indiana follows the American
Rule, whereby each party pays his or her own attorney fees. Liberty Mut. Ins. Co.
v. OSI Indus., Inc., 831 N.E.2d 192, 205 (Ind. Ct. App. 2005), trans. denied. Thus,
an award of attorney fees is not permissible in the absence of a statute or some
agreement or stipulation authorizing such an award. Id. Pearman refers to no
statute or agreement that would permit the trial court to award attorney fees in
this case.6 STGC notes that its Policy provided for payment of attorney fees
only in one specific circumstance, i.e., when a third party asserted a claim
covered by the policy adverse to the insured.7 Here, no such third party has
6
The only authority Pearman cites in support of his claim for attorney fees is American Family Mutual
Insurance Co. v. C.M.A. Mortgage, Inc., 682 F. Supp. 2d 879 (S.D. Ind. 2010). However, that case has nothing
to do with attorney fees. Instead, at issue was whether the insurance company was required to pay a
settlement entered into by its insured without the consent of the insurance company. Id. at 890.
7
Specifically, Paragraph 5(a) of the Conditions of the Policy, under the title “Determination and Extent of
Liability,” provided:
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asserted a claim against Pearman. Accordingly, we cannot say that the trial
court erred in denying his request for attorney fees.
IV. Punitive Damages
[24] Pearman also claims that STGC should be subject to punitive damages based
on its behavior in this case. Again, however, Pearman did not include a claim
for punitive damages in his complaint. Nor did he raise the issue of punitive
damages in his cross-motion for summary judgment. As we explained in GKC
Indiana Theatres, Inc. v. Elk Retail Investors, LLC:
As a general rule, a party may not present an argument or issue
to an appellate court unless the party raised that argument or
issue to the trial court. This rule exists because trial courts have
the authority to hear and weigh the evidence, to judge the
credibility of witnesses, to apply the law to the facts found, and to
decide questions raised by the parties. Appellate courts, on the
other hand, have the authority to review questions of law and to
judge the sufficiency of the evidence supporting a decision. The
rule of waiver in part protects the integrity of the trial court; it
cannot be found to have erred as to an issue or argument that it
never had an opportunity to consider. Conversely, an
intermediate court of appeals, for the most part, is not the forum
for the initial decisions in a case. Consequently, an argument or
Upon written request by the Insured, and subject to the options contained in Section 7 of
these Conditions, the Company, at its own cost and without unreasonable delay, shall
provide for the defense of an Insured in litigation in which any third party asserts a claim
covered by this policy adverse to the Insured. This obligation is limited to only those stated
causes of action alleging matters insured against by this policy. The Company shall have
the right to select counsel of its choice (subject to the right of the Insured to object for
reasonable cause) to represent the Insured as to those stated causes of action. It shall not be
liable for and will not pay the fees of any other counsel. The Company will not pay any
fees, costs, or expenses incurred by the Insured in the defense of those causes of action that
allege matters not insured against by this policy.
Appellant’s App. Vol 2, p. 106.
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issue not presented to the trial court is generally waived for
appellate review.
764 N.E.2d 647, 651 (Ind. Ct. App. 2002) (citations omitted). Because Pearman
did not present this issue below, he may not do so for the first time on appeal.
Conclusion
[25] The trial court did not err in granting summary judgment in favor of STGC on
Pearman’s claim of negligent misrepresentation because Pearman is in
contractual privity with STGC, and a claim of negligent misrepresentation is
therefore unavailable to him. Nor did the trial court err in granting summary
judgment in favor of STGC on Pearman’s claim of insurer bad faith because
Pearman did not present a claim of bad faith in his complaint. The trial court
did not err in declining Pearman’s request for attorney fees, and Pearman’s
claim for punitive damages cannot be presented for the first time on appeal. We
therefore affirm the trial court’s judgment.
[26] Affirmed.
Najam, J., and Barnes, S.J., concur.
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