Nat'l Asset Consultants LLC v. Midwest Holdings-Indianapolis, LLC

NATIONAL ASSET CONSULTANTS LLC, Plaintiff, v. MIDWEST HOLDINGS-INDIANAPOLIS, LLC, F.C. TUCKER COMPANY, INC.,SARI MANDRESH, DAVID HENNESSY, VICKIE YASER, Defendants.

No. 1:18-cv-01616-JRS-DML

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

March 30, 2021

Order on Motions for Summary Judgment and Other Pending Motions

A quarrel over a contract for the purchase of an Indiana property in 2018 ballooned into an arduous three-year long litigation process spanning state and federal courts and a thick web of claims, crossclaims, and counterclaims. The parties filed cross-motions for summary judgment and partial summary judgment. (See ECF Nos. 192, 204, 206, 214.) For the following reasons, all claims are dismissed. The remaining pending motions in this case, (ECF Nos. 189, 233, 234), are also addressed below.

I. Background

On January 5, 2018, Jim Bleier listed the property at 7636 River Road in Indianapolis ("Property") for sale at a price of $80,000. (ECF No. 195-17 at 8.) Bleier listed the Property on behalf of Midwest Holdings-Indianapolis, LLC ("Midwest"), whose sole member is Jim Bleier's wife, Katherine. (ECF No. 196-20.)

David Hennessy and Vickie Yaser, who are married, were prospective buyers of the Property. They were represented by real estate agent Sari Mandresh, who in turn is affiliated with F.C. Tucker Company, Inc. ("F.C. Tucker"). (F.C. Tucker Answer ¶¶ 8-9, ECF No. 107.)

On January 6, 2018, Mandresh submitted a written offer on behalf of Hennessy and Yaser to buy the Property. (Id.) The offer consisted of an eight-page document titled "Purchase Agreement" and a one-page "Addendum" containing the legal description of the Property. (ECF No. 195-17.) Page 8 of the Purchase Agreement has a section captioned "SELLER'S RESPONSE" and lists three boxes that may be checked: "The above offer is Accepted."; "The above offer is Rejected."; and "The above offer is Countered. See Counter Offer. Seller should sign both the Purchase Agreement and the Counter Offer." (Id. at 16.)

Mandresh says Bleier called that same day to say that Midwest had accepted Hennessy and Yaser's offer, (id. at 3), though Bleier now denies this, (Bleier Aff. ¶ 14, ECF No. 204-1). Bleier later responded on behalf of Midwest with an emailed copy of the Purchase Agreement, in which Bleier signed his name on Page 8, dated the response January 6, 2018, at 4 p.m., and checked the "Countered" box. (ECF No. 195-17 at 3.) No counteroffer accompanied Bleier's email. (Id.) Soon, Hennessy, Yaser, and Bleier signed an "Amendment" to the Purchase Agreement, concerning title work, closing, and a waiver of homeowner's insurance. (ECF No. 94-2.)

For two days afterward, Hennessy, Yaser, Mandresh, and Bleier acted in a way consistent with them believing a contract for the sale of the Property had beenformed. Mandresh congratulated Hennessy and Yaser on their accepted offer. (Mandresh Dep. Tr. 29:14-30:10, ECF No. 195-18.) Bleier emailed Mandresh, a representative of Monument Title Insurance Company, and a "Joe Fall" the following: "Dan, See executed purchase agreement for 7636 River RD. Please advise on survey and closing date. Buyer requested fast close! Jim Bleier." (ECF No. 195-19.) Mandresh and Bleier continued to communicate via text about the transaction. On January 7, 2018, they discussed who to write the check out to for the earnest money. (ECF No. 195-17 at 19-20.) On January 8, 2018, Mandresh asked Bleier about an "elevation certificate" and asked why the listing website reflected that the Property's status was "withdrawn." (Id. at 20.) Later that day, Hennessy and Yaser signed another "Amendment" to the Purchase Agreement changing the title company to Meridian Title Company and changing the closing date, though this second amendment does not bear Bleier's signature. (ECF No. 36-4.)

Sometime in the evening of January 8, 2018, or the morning of January 9, 2018, Mandresh realized that the "Countered" box was checked on the Purchase Agreement rather than the "Accepted" box. (Mandresh Dep. Tr. 48:3-9, ECF No. 195-18.) Among other things, Mandresh told her manager at F.C. Tucker about the parties' communications, Bleier's alleged verbal acceptance, and the two purported amendments to the Purchase Agreement. (Id. at 48:13-25, 55:24-56:2.) Believing the "Countered" box being checked was a "clerical error," the manager directed Mandresh to cross out the "Countered" box, initial the "correction," and check the "Accepted" box. (Id.; ECF No. 204-10 at 4.) Mandresh made these changes on a photocopy of Page 8 of thePurchase Agreement, and she appended the altered Page 8 to the end of the original unchanged eight-page Purchase Agreement and the one-page Addendum. (See ECF No. 196-1.) Mandresh did not yet ask Bleier why he checked "Countered" rather than "Accepted."

On January 9, 2018, Hennessy and Yaser wired $80,000 to Meridian Title Company, the escrow agent. (Mandresh Dep. Tr. 85:6-9, ECF No. 195-18.) The same afternoon, Bleier learned from an email that the Property could be more lucrative if it was remodeled before sale. (ECF No. 196-2.) He forwarded the email to his business associate Joe Fall ("Fall"), an agent for National Asset Consultants, LLC ("NAC"). (Id.; NAC Interrog. ¶ 1, ECF No. 194-8.) The sole member of NAC is Fall's wife, Karlin Fall. (Id.) On the evening of January 9, Bleier called Mandresh, asking whether she could convince Hennessy and Yaser to immediately re-sell the Property to Fall for $85,000, with Mandresh's would-be commission paid separately. (Mandresh Dep. Tr. 66:4-11, ECF No. 195-18.) Hennessy and Yaser were not interested. (Id. at 152:19-24.)

On January 10, 2018, Mandresh emailed Bleier, "My office noticed that you signed the [Purchase Agreement] as countered. Could you please correct and re-sign?" (Ex. H, ECF No. 195-18.) Bleier responded by sending a purported counteroffer for $145,000. (Id.) Within an hour after sending the counteroffer to Mandresh, Bleier pitched the Property to Fall for remodeling. (ECF No. 196-5.)

On January 11, 2018, Mandresh accused Bleier of trying to back out of the purported deal, but Bleier refused to acknowledge that checking "Countered" was a clerical error, instead maintaining that checking "Countered" was his intent all along. (ECF No. 195-17 at 5.)

Hennessy, Yaser, and Mandresh were upset with this turn of events. In text messages to Mandresh, Hennessy pledged to "punish" and "haunt" Bleier. (ECF No. 204-5 at 12, 13.) As Hennessy explained it, "when you make a deal and decide whoa I have a better deal you can be up front or do what [Bleier] [d]id." (Id. at 11.)

On January 29, 2018, Hennessy and Yaser, represented by Hennessy, filed a state court complaint against Midwest for specific performance. (ECF No. 196-16.) Hennessy and Yaser attached the altered Purchase Agreement, with the appended "corrected" version of Page 8 that was marked "Accepted" and initialed by Mandresh. (Compl. for Specific Performance ¶ 6, ECF No. 196-16.) The complaint reflects that Bleier had returned a written response indicating the offer was countered, (id.), though the complaint otherwise does not explain what the altered version of Page 8 was or meant. The remainder of the complaint details circumstantial evidence that a contract had formed, (id. ¶¶ 7-14), facts that are already laid out above.

When they filed their state court lawsuit against Midwest, Hennessy and Yaser did not know that Midwest no longer had title to the Property. (ECF No. 207 at 2-3.) In fact, there were a string of transactions involving the Property that they did not know about. On January 11, 2018, while Midwest's putative counteroffer to Hennessy and Yaser was pending, Midwest, through its agent Bleier, accepted an offerfrom NAC, through its agent Fall, for the purchase of the Property for $150,000. (ECF No. 196-6.) Midwest financed NAC's purchase with a purchase-money mortgage. (ECF No. 196-7.) Planning to renovate and flip the Property, NAC engaged GK Services, LLC ("GK Services") on January 15, 2018, to perform remodeling work for a contract price of $129,102. (ECF No. 196-8.) NAC paid the contract price by promissory note. (ECF No. 196-10.) NAC's sole member Karlin Fall apparently also executed a personal guarantee of the contract price, (ECF No. 196-9), though she did not sign it until after this litigation began, (ECF No. 196-11).

On February 27, 2018, Hennessy and Yaser filed a lis pendens notice with the Marion County Clerk. (ECF No. 196-17.) "Lis pendens" means "a pending suit or suit pending." 54 C.J.S. Lis Pendens § 1 (2021). "The doctrine of lis pendens operates so as to charge a subsequent purchaser of property and third parties having an interest in property with notice of [legal] actions concerning that property, and any person who subsequently acquires an interest in the property does so subject to the risk of being bound by an adverse judgment in the pending case." Id. The lis pendens notice that Hennessy and Yaser filed contained a description of the Property, the parties of the underlying state court action, and a description of the litigation as one "in which Plaintiffs [Hennessy and Yaser] seek the specific performance of a completed purchase agreement obligating Defendant [Midwest] to sell said property to Plaintiffs." (Id. at 2.)

According to NAC and Midwest, the lis pendens notice operated as a cloud on title and decimated the Property's value. (See generally ECF No. 204-12 at 11-13 (expertwitness summary of NAC's and Midwest's alleged pecuniary damages from lis pendens notice after efforts to mitigate damages).) NAC claims to have become delinquent on its obligations to GK Services and Midwest on the promissory note and mortgage agreement, respectively. (Fall Aff. ¶ 6, ECF No. 204-2.) Fall, on behalf of NAC, sought to refinance but failed to find a willing lender. (Id. ¶¶ 7-8.) Likewise, Bleier's efforts on NAC's behalf to refinance the Property did not bear fruit. (Bleier Aff. ¶¶...