Cheng Song v. Thomas Iatarola and Theresa Iatarola , 83 N.E.3d 80 ( 2017 )

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
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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?
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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.
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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.
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