COA reaffirms denial of summary judgment to landowners in failed real estate deal

After granting a petition for rehearing to address — and ultimately reject — an argument over the contract in a real estate case, the Indiana Court of Appeals reaffirmed Thursday the denial of summary judgment to northern Indiana landowners who misrepresented property to a potential buyer.

In May, the appellate court affirmed the denial of summary judgment to Thomas and Theresa Iatarola, who had negotiated a deal to sell 16 acres of land to Cheng Song, yet failed to inform Song of the property’s proper zoning. When Song learned the property in question was zoned for agricultural use, not industrial as he was told, he exercised his rights to terminate a purchase agreement with the Iatarolas in a 180-day due diligence period.

The Iatarolas petitioned the court for rehearing, and the court granted the petition to adress just one argument: the designated evidence on summary judgment showed Song, not the Iatarolas, typed the due diligence addendum, so the addendum should be construed against him. Specifically, the couple cited to a portion of their designated materials that reads, “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 $140,000.00 to cover any damages due to any breach of the agreement.”

Further, the Iatarolas pointed to two pages of Song’s deposition, in which he says he and Thomas Iatarola negotiated the addendum, but he physically typed it into a Word document. But in a Thursday opinion, Judge John Baker wrote such evidence does not change the outcome of the Iatarolas’ 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,” Baker wrote. “Rather, the evidence outlined above indicates that it was the Iatarolas who wanted the addendum drafted, and that both parties contributed to its preparation.”

Thus, Baker said the Iatarolas argument was unpersuasive, and the court denied the petition for rehearing in Cheng Song v. Thomas Iatarola and Theresa Iatarola, 64A03-1609-PL-2094, in all other respects.