Appeal
from the Porter Superior Court Trial Court Cause No.
64D02-1109-PL-9151 The Honorable Roger V. Bradford, Special
Judge
Attorneys for Appellant Robert A. Welsh Connor H. Nolan
Harris Welsh & Lukmann Chesterton, Indiana
Attorney for Appellees C. Anthony Ashford Ashford Law Group,
P.C. Valparaiso, Indiana
Najam,
Judge.
Statement
of the Case
[¶1]
Cheng Song appeals the trial court's order denying his
request for attorney's fees. Song presents three issues
for our review, which we consolidate and restate as one
issue, namely, whether the trial court erred when it denied
his request for attorney's fees. We reverse and remand
with instructions.
Facts
and Procedural History
[¶2]
This is the second appeal in this matter. In our prior
opinion, we set out the facts and procedural history as
follows:
In 1998, the Iatarolas purchased thirty-four acres of land
that was zoned for agricultural use. Thomas [Iatarola] built
several structures on the property to warehouse equipment and
inventory from his telecommunications and classic car sales
business.
The land, which was adjacent to the Porter County Airport,
was mortgaged. The Iatarolas decided to try to sell ten acres
of their land to reduce or repay their debt to the bank.
Thomas and Theresa [Iatarola] agreed between themselves that
Thomas would take charge of arranging for the sale of their
land, and he acted as an agent on behalf of his wife from
September 2010 through September 2011. On September 14, 2010,
Thomas retained Robert Macmahon as their exclusive real
estate agent for the sale of the ten acres.
On September 14, 2010, Macmahon showed Thomas a listing
agreement for the real estate sale. The form was entitled
"Listing Contract (Exclusive Right to Sell)
Commercial-Industrial Real Estate"; under the section
entitled "Seller's Representations," the
property is stated to be zoned I-2 Industrial. Macmahon asked
Thomas to review the listing to ensure its accuracy and asked
both Thomas and Theresa to initial each page of the listing
agreement to verify that they read it and that it was
accurate. Thomas did so, but Theresa refused to sign her
initials because the listing inaccurately stated that the
zoning was I-2 Industrial rather than Agricultural. Theresa
told Thomas that her reason for not initialing the listing
and told him to have Macmahon correct the listing error.
A few days later, Thomas told Theresa that he had spoken with
Macmahon and that the listing had been corrected. Theresa did
not see or initial a corrected listing. On or around
September 14, 2010, Macmahon began advertising the real
estate online. The advertisements stated that the land was
zoned I-2 Industrial and that it was suitable for warehousing
and other light industrial uses.
In December 2010, Song saw online the advertisement for the
sale of the ten acres of land. At this time, Song was a New
Jersey resident who wanted to buy industrial real estate in
northwest Indiana to use for an imported tool business he
wanted to start. Song arranged a meeting with Macmahon to
take place on December 31, 2010, to visit two industrially
zoned properties, one of which was the Iatarolas' land.
During their meeting, Song told Macmahon that he wanted to
buy property that had buildings suitable for warehousing for
an imported tool business, and they discussed Song's
ability to expand and build additional industrial warehousing
on the property. In an internet advertisement that has
Macmahon's handwriting on it, the property's type is
described as "Industrial For Sale"; the property
overview states that the land is "in an established
industrial area."
Also on December 31, 2010, Song told the Iatarolas of his
intended use of the property he wanted to purchase. That same
day, Song signed a purchase agreement with the Iatarolas to
buy their ten acres for $600, 000. The contract was entitled
"Purchase Agreement Commercial-Industrial Real
Estate."
Sometime before the signing, the Porter County Airport had
stated that it might impose a runway protection zone in this
property to comply with Federal Aviation Administration
("FAA") requirements. The purchase agreement
included a contingency clause that stated, "This
agreement is contingent upon the Buyer's agreement with
the final approval of FAA regarding land use." After
reviewing the airport's proposal, Song worried that the
runway protection zone could lead to a governmental taking of
part of the property that he was purchasing, the removal of
some of the warehousing buildings, or a restriction on the
height of future construction. On January 6, 2011, he
exercised his contingency right and terminated the purchase
agreement.
For the next two and one-half months, Song and Thomas
negotiated a new sale of a different part of the
Iatarolas' land. On March 21, 2011, they signed a second
purchase agreement for sixteen acres, which included most of
the original ten acres with the warehousing buildings plus
additional acres of land outside the potential runway
protection zone. This second purchase agreement was entitled
"Purchase Agreement Commercial-Industrial Real
Estate." It required $150, 000 in earnest money and
included a provision for liquidated damages of $150, 000 if
either party breached the contract. Song and Thomas signed an
addendum to the second purchase agreement that provided:
Closing date will be predicated on the Seller's ability
to vacate and exit the subject property. A maximum of 180
days ("Due Diligence Period") from the day of
acceptance of this contract, has been agreed by both parties.
When the seller advises the Buyer in writing, that the exit
is ...