ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL K. AUSBROOK GARY J. CLENDENING
DONALD W. FRANCIS, JR. SUZANNAH BEX WILSON
Bloomington, Indiana Mallor Clendening Grodner & Bohrer
DONALD W. FRANCIS, SR., ) ) Appellant-Defendant, ) ) vs. ) No. 53A01-9801-CV-31 ) HELEN CATHERINE YATES, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MONROE CIRCUIT COURT
without restriction, but notice of each assignment shall be given in writing to Seller. R. at
Yates accepted the offer and Francis purchased Tracts A, B, and C in a timely fashion. However when over nine years had passed and Francis had not exercised his option to purchase Tract D, Yates filed a Verified Complaint for Declaratory Judgment. According to Yates, among other things, the right of first refusal granted to Francis violated the Rule Against Perpetuities. Thereafter both parties filed motions for summary judgment. After a hearing, the trial court granted Yates' motion. This appeal followed.
In reviewing a trial court's ruling on a motion for summary judgment we apply the same standard as the trial court. Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ace Rent-A-Car, Inc. v. Indianapolis Airport Authority, 612 N.E.2d 1104, 1106 (Ind. Ct. App. 1993), trans. denied. Although facts may not be in dispute, summary judgment is inappropriate if conflicting inferences arise from undisputed facts. Kutche Chevrolet v. Anderson Banking Co., 597 N.E.2d 1307, 1308 (Ind. Ct. App. 1992). On appeal, the appellant bears the burden of proving that the trial court erred in determining that there are no genuine issues of material fact and the moving party was entitled to judgment as a matter of law. Etienne v. Caputi, 679 N.E.2d 922, 924 (Ind. Ct. App. 1997).
Francis contends the trial court erred in finding that the contract violated the Rule Against Perpetuities. The Rule has been described as "an ancient, but still vital, rule of property law intended to enhance marketability of property interests by limiting remoteness
of vesting." Buck v. Banks, 668 N.E.2d 1259, 1260 (Ind. Ct. App. 1996). Indiana has
adopted the common law rule which provides in part "an interest in property shall not be
valid unless it must vest, if at all, not later than twenty-one (21) years after a life or lives in
being at the creation of the interest." Ind. Code § 32-1-4-1.See footnote 1
In sum the rule requires that an
estate vests within a life or lives in being and twenty-one years and nine months. Buck at
1261 citing Hays v. Martz, 173 Ind. 279, 288-84, 89 N.E. 303, 305 (1909).
Francis concedes that the language which extended the contract to the heirs, administrators, executors, successors, and assigns violated the common law Rule Against Perpetuities. That is so because Francis' preemptive right to purchase Tract D attempted a non-donative transfer of a non-vested property interest. However, Francis contends that the extending language applied only to the Option portion of the contract and not the right of first refusal.
Generally, construction of a written contract is a question of law for which summary judgment is particularly appropriate. Whiteco Industries, Inc. v. Nickolick, 571 N.E.2d 1337, 1339 (Ind. Ct. App. 1991), trans. denied. When interpreting a written contract, the court will endeavor to ascertain the parties' intent by language used in the agreement to express their obligations. Buck v. Banks, 668 N.E.2d at 1261. If ambiguity does not exist, then the court will not look beyond the four corners of the document to determine the parties' intent. Peter C. Reilly Trust v. Anthony Wayne Oil Corp., 574 N.E.2d 318, 320 (Ind. Ct. App. 1991). Words are given their plain and ordinary meaning. George Uzelac & Assoc. v. Guzik, 663
N.E.2d 238, 240 (Ind. Ct. App. 1996), trans. denied. Specific words and phrases cannot be
read exclusive of other contractual provisions. Buck, 668 N.E.2d at 1261. The parties'
intentions must be determined from the contract read in its entirety. Id. We attempt to
construe contractual provisions so as to harmonize the agreement. First Fed. Sav. Bank v.
Key Markets, Inc., 559 N.E.2d 600, 603 (Ind. 1990). If a contract is ambiguous solely
because of language used in the contract and not because of extrinsic facts, then construction
of the contract is purely a question of law to be determined by the trial court. Bicknell
Minerals, Inc. v. Tilly, 570 N.E.2d 1307, 1310 (Ind. Ct. App. 1991), trans. denied.
Yates cites Buck supra as dispositive of the issue before us. In that case Buck entered into a contract to purchase a 500 acre parcel of land from Lillian E. Allen. Included in the contract was a provision giving Buck a right of first refusal to purchase an additional fourteen acres from Allen should she decide to sell that property. Buck eventually purchased the 500 acres but several years later Allen entered an agreement with Banks for the sale of the remaining fourteen acres. Prior to completion of the sale Allen died. Learning of the impending sale Buck filed suit against Banks as well as Allen's estate. In response the estate filed a motion for summary judgment contending the right of first refusal in the contract was void because it violated the Rule Against Perpetuities. The trial court granted the motion and Buck appealed contending, as does Francis, that the provision extending the contract to all heirs, executors, administrators, and assigns did not apply to the right of first refusal. We disagreed and affirmed the trial court's entry of summary judgment. In so doing we relied upon the contract's final provision which provided:
heirs and assigns, the exclusive option with right of first refusal to purchase the real estate
of Seller . . . ." R. at 26. According to Yates, the specific terms which follow simply explain
the introductory language, and the option and right of first refusal are part and parcel of the
same agreement. However we conclude that these are conflicting inferences arising from the
use of the term "option." The designated materials simply do not allow us to determine the
meaning of "option" as used in the Agreement. Essentially the intent of the parties here is
unclear. The contract is ambiguous and the ambiguity can only be resolved by facts extrinsic
to the four corners of the document. Accordingly, summary judgment is not appropriate.
Judgment reversed and cause remanded for further proceedings.
DARDEN, J., and GARRARD, J., concur.
Converted by Andrew Scriven