ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

STEPHEN BOWER    JULIA BLACKWELL GELINAS
Cohen & Thiros      SANDRA BOYD WILLIAMS
Merrillville, Indiana    Locke, Reynolds, Boyd & Weisell
            Indianapolis, Indiana

RONALD RUFF,                   )
                                    )
    Appellant-Plaintiff,            )
                                    )
        vs.                         )    No. 45A03-9802-CV-53
                                    )
CHARTER BEHAVIORAL HEALTH           )
SYSTEM OF NORTHWEST INDIANA,        )
INC.,                               )
                                    )
    Appellee-Defendant.             )

                                

KIRSCH, Judge

had actual knowledge of the contents of the contract. We cannot say that, if true, Brown's representation to Ruff that the contracts were “identical” was purely an expression of opinion or belief, or a representation of law.
    Brown testified that in the course of discussing the contract for the new position, Ruff asked if the payment structure for the psychological testing was going to remain the same. He answered that Charter would need to make adjustments for the volume differences, but the schedule of charges for the individual tests would remain the same. Record at 111. Brown stated, “[Ruff]'s communications to me indicated a desire for his total compensation package to not decline based on the possibility of achievable calculations, meaning he didn't want to take a pay cut.” Record at 111. He also testified, “there may have been times where we said that the base salary was the same. There may have been times where we said how we would calculate the reimbursement per psych test was the same. . . . there was some sameness.” Record at 112. By contrast, Ruff testified, “Best of my recollection is I said, “Mike, is it the same contract?” he said, “It's identical to Michigan City.'” Record at 134. The testimony of Ruff and Brown conflicts with regard to the conversation the two men had with regard to the Hobart contract. This conversation is critical because it is these representations upon which Ruff bases his claim for fraud. This conflicting evidence creates a genuine issue of material fact which precludes summary judgment.

plaintiff acted in reliance upon the defendant's representation and whether the plaintiff was justified in doing so are on conflicting evidence questions of fact for the jury. Plymale, 419 N.E.2d at 760-61. The element of reliance has two distinct parts: the fact of reliance and the right of reliance. Id.
    Charter claims that Ruff had no right to rely on Brown's representations in lieu of reading the contract himself. The right of reliance is tightly bound up with the duty of a representee to be diligent in safeguarding his interests. Id. at 762. The legal obligation that a person exercise the common sense and judgment of which he is possessed is a practical limitation on the actionability of various representations. Id. Where persons stand mentally on equal footing, and in no fiduciary relation, the law will not protect one who fails to exercise common sense and judgment. Id. As our supreme court has stated,
    “A man who can read and does not read an instrument which he signs is, as a general rule, guilty of negligence, and so he is, if, being unable to read, he neglects to exercise ordinary prudence in requiring the instrument to be read to him.”

Robinson v. Glass, 94 Ind. 211, 212 (1883). However, this principle is not applied in cases where a party is by trickery prevented from reading the document or by trust and confidence lulled into believing another's representation as to its character or content. Plymale, 419 N.E.2d at 762.
    In this case, Ruff had worked for Brown at Charter's Michigan City facility and found him to be honest and forthright. The two men had an agreeable working relationship. Brown testified that Ruff did a good job. When Ruff first began work at Michigan City, he did not

have a contract. Brown stated that he would try to negotiate with Charter's central office for a base salary plus additional compensation for Ruff. Ruff continued to work for Charter based on his belief that Brown could be trusted to act as he had promised. In that case, Brown performed exactly as he said he would, and several months later, Ruff received the contract he had anticipated. Shortly thereafter, Ruff received the offer from Brown to move with him to the Charter Hobart facility. Based on their prior working relationship, Ruff testified that he had no reason not to trust Brown. Again, Ruff began working without a contract based on a “handshake” agreement between the men. We cannot say that as a matter of law Ruff had no right to rely on Brown's representations. Whether Ruff acted in reliance on Brown's representation and whether he was justified in doing so are questions of fact that preclude summary judgment.
    Charter also argues that the parol evidence rule barred any evidence of oral representations about the contract. An exception to the parol evidence rule applies in the case of fraud in the inducement. See Vernon Fire & Cas. Ins. Co. v. Thatcher, 152 Ind. App. 692, 701, 285 N.E.2d 660, 666 (1972), trans. denied (1973). Because Ruff has alleged fraud, the parol evidence rule does not bar extrinsic evidence concerning the circumstances surrounding the execution of the contract.

employed the language and who prepared the contract. Rieth-Riley Constr. Co., 408 N.E.2d at 645. In determining the intention of the parties to a contract,
    “it is the court's obligation and duty to consider their intention in the light of the surrounding circumstances which existed at the time the contract was made. The court should consider the nature of the agreement, together with all the facts and circumstances leading up to the execution of the contract, the relation of the parties, the nature and situation of the subject matter, and the apparent purpose of making the contract.”

Shahan, 181 Ind. App. at 46, 390 N.E.2d at 1041.
    Here, the contract provides that its term is one year from August 5, 1996. It also provides that Ruff's base salary was to be paid in accordance with Hospital payroll procedures. It, however, makes no mention of how Ruff's commission was to be earned or paid. We find that the contract is ambiguous on its face as to how Ruff's commission was earned and was to be paid. Extrinsic evidence concerning the intention of the parties must be presented to resolve this ambiguity. The interpretation of this provision is a question of fact for the trier of fact that precludes summary judgment.
    Reversed.
STATON, J., and ROBB, J., concur.

Converted by Andrew Scriven