ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
DANA CHILDRESS-JONES JOSEPH M. DIETZ
Tabbert Hahn Earnest & Weddle Meils, Thompson, Dietz & Berish
Indianapolis, Indiana Indianapolis, Indiana
BEVERLY YOUNG; ROBERT YOUNG; )MICHAEL YOUNG; WALTER YOUNG; )
August 26, 2003
OPINION FOR PUBLICATION
Appellants-plaintiffs Beverly, Robert, Michael, Walter, Eric, and Michelle Young (collectively, the Young Children) appeal the trial courts grant of summary judgment in favor of appellees-defendants Robert C. Thompson, Jr. and Rhoda Young. They contend that there is a genuine issue of material fact regarding whether they reasonably relied on defendants statement that there were five months within which to begin a will contest. They also argue that there is a genuine issue of material fact about whether the defendants statement proximately caused their injuries. Because the Young Children met with ten attorneys before the window for filing a will contest expired, we hold as a matter of law that they did not reasonably rely on the defendants statements and affirm the trial courts grant of summary judgment.
Rice v. Strunk, 670 N.E.2d 1280, 1289 (Ind. 1996). The defendants agree
that there are genuine issues of material fact regarding the first three elements.
However, the defendants argue that the last two elements should be decided
as a matter of law against the Young Children. More specifically, the
defendants argue that the Young Children did not have the right to rely
on their representation and that such representation, as a matter of law, did
not proximately cause their injury.
We find one issue dispositive: whether the Young Children had the right to rely on the defendants representations. For a plaintiff to recover under a fraud theory, it must show that it had a right to rely on the defendants misrepresentations and that it did in fact rely on the misrepresentations to its detriment. Scott v. Bodor, Inc., 571 N.E.2d 313, 321 (Ind. Ct App. 1991). The right of reliance is more difficult to determine for the reason it is tightly bound up with the duty of a representee to be diligent in safeguarding his interests. Plymale v. Upright, 419 N.E.2d 756, 762 (Ind. Ct. App. 1981). The Plymale court went on to note:
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. In the course of daily interaction and business dealing the average person encounters a barrage of opinions, advice, advertisements, estimates, and even guestimates. He simply cannot believe, or rely upon, everything he is told. The design of the law is to protect the weak and credulous from the wiles and strategems of the artful and cunning, as well as those whose vigilance and sagacity enable them to protect themselves. However, it is also settled that 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. (quoting McKee v. State, 111 Ind. 378, 381, 12 N.E. 510 (1887)).
In the instant case, the Young Children met with ten different attorneys within the three-month window they had to file the will contest. Although none of the ten attorneys formally represented the Young Children, the Young Children should have exercised the judgment to ask one of the attorneys how much time they had to file a will contest. Therefore, we hold that as a matter of law they did not have the right to rely on the representations made by Thompson or Rhoda. Thus, the trial court did not err in granting the defendants summary judgment.
The Young Children rely on Carrell v. Ellingwood in their contention that the trial court erred in granting the defendants summary judgment. 423 N.E.2d 630 (Ind. Ct. App. 1981). In Carrell, an attorney for parties who submitted a will to probate told the opposing parties attorney that the will had been submitted to probate in November. Id. at 632. The will had actually been submitted to probate in August. Id. At that time the window for filing a will contest was five months, so the parties who sought to challenge the will missed the filing deadline. This court reversed the trial courts grant of summary judgment, holding that there were genuine issues of material fact for each element of fraud. Id. at 636. However, Carrell is distinguishable from the instant case because the defendants in Carrell had exclusive knowledge about when the will had been submitted for probate. Here, on the other hand, the state of the law was not within the exclusive knowledge of the defendants; such information was available to the other ten attorneys with whom the Young Children met.
Because, as a matter of law, the Young Children did not reasonably rely on the defendants misrepresentations and because the holding in Carrell is inapplicable, we affirm the trial courts grant of summary judgment in favor of the defendants.
BROOK, C.J., and SHARPNACK, J., concur.