Pursuant to Ind.Appellate Rule 65(D),

this Memorandum Decision shall not be regarded as precedent or c ited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEES: JAMES E. STOLTZ KRYSTAL M. LECHNER Stoltz Law Office Evansville, Indiana Evansville, Indiana CRYSTAL G. ROWE KIGHTLINGER & GRAY, LLP New Albany, Indiana



## IN THE COURT OF APPEALS OF INDIANA

CROWN CAPITAL SOLUTIONS, ) ) Appellant/Respondent, ) )

vs. ) No. 82A04

- 1403

- SC

- 101 ) MILLER PIPELINE CORP. and ) LIBERTY MUTUAL, ) ) Appellees/Petitioners. )

APPEAL FROM THE VANDERBURGH SUPERIOR COURT

The Honorable Sheila M. Corcoran, Judge Cause No. 82D06

- 1309

- SC

- 10031

October 16, 2014

MEMORANDUM DECISION

- NOT FOR PUBLICATION

VAIDIK , Chief Judge2 Case Summary
Crown Capital Solutions filed a small

- claims action against Miller Pipeline
Corporation and its insurer, Liberty Mutual. Crown sought $6000 in damages to a 2008

Chevrolet Corvette owned by Blair and Tyler Mielke and alleg ed that it was entitled to
bring the action as Blair ’s assignee. Miller Pipeline and Liberty Mutual filed a motion to
dismiss, arguing that Blair had not assigned any valid cause of action to Crown Capital

.
The small

- claims court granted the motion , and Crown Capital now appeals. Because we

conclude that Blair failed to assign a ny valid cause of action to Crown Capital , we affirm.
Facts and Procedural History

On November 2
, 2011, Blair and Tyler Mielke’s 2008 Chevrolet Corvette was
damaged by roadwork b eing performed by Miller Pipeline

. 1 The Mielkes filed a

property

- damage claim against Miller Pipeline

. Liberty Mutual , Miller Pipeline ’s

insurer, settled the claim for $8692.67, and Tyler signed a release wai ving all claims
relating to the November 2 , 20 11 incident. Appellant’s App. p. 30

- 31. The Mielkes sold

the 2008 Chevrolet Corvette in September 2012.
After selling the Corvette, Tyler contacted Liberty Mutual to inquire about
pursuing a diminished

- value claim. Liberty Mutual informed Tyler t hat Blair could

pursue such a claim because he was a partial owner when the Corvette was damaged.

1 Blair is Tyler’s father. Blair and Tyler were both listed as owners on the 2008 Chevrolet Corvette’s title when it was damaged

. See App ellant’s App. p. 26.3

Six months later
, Blair executed an assignment (“the Assignment”) transferring his

claim for diminished

- value damages to Crown Capital. It provided :

Id. at 12

. Shortly after the Assignment was executed, Crown Capital filed suit against Miller
Pipeline and Liberty Mutual. It sought to recover $6000 in damages and attached the
Assignment to its complaint. Id

. at 6. Crown Capi tal also attached a letter from one of4

its employees

— dated September 9, 2013

— to Liberty Mutual requesting payment of
$6663.74 for damage to a 2008 Chevrolet Corvette that occurred on November 2, 2011.

Id. at 10

- 11

.
Miller Pipeline and Liberty M utual fil ed a motion to dismiss arguing that : ( 1) Blair
assigned a claim for damage to a 2011 C hevrolet C amaro, not a 2008 C hevrolet C orvette,

which meant that Crown Capital had no standing to bring a claim for damage to a 2008

Chevrolet Corvette; and ( 2) Blair did not assign a ny claim against the at

- fault party,

Miller Pipeline , and Blair had no direct claim against Liberty Mutual , Miller Pipeline’s

insurer

. Id. at 21

- 22

. In its response to the motion to dismiss, Crown Capital argued that
the Assignment contained a scrivener’s error but was intended to “assign [Blair’s] right to
recover from Miller Pipeline for the damage to the 2008 Chevrolet Corvette.” Id. at 35.
Crown Capital asked the court to reform the instrument to reflect the parties’ actual

intent. Id.
Miller Pipeline and Liberty Mutual brought new facts to light in their response to
Crown Capital’s filing. Id. at 42

- 46. Citing text from Crown Capital’s website , they
argued that:

 “ According to Crown Capital Solution’s website, the company is in the b usiness of transferring ownership of claims to provide ‘all the legal and civil rights to the DV [diminished value] claim so that the insurance company is required to work with us, removing the time and headaches associated with an equitable recovery.’”

 “T he [Crown Capital] website goes on to claim, ‘in many cases Crown Capital educates the insurance companies on the case law and understanding DV settlements. However, some claims still require litigation for a fair resolution. Once the final settlement or judgment has been made, we will then provide payment for your claim.’”5

Id. at 43. Based on these representations, Miller Pipeline and Liberty Mutual argued that
Crown Capital’s “explanation that [the drafter of the Assignment] ‘made a mistake’ is not

suf ficient to reform the assignment to the prejudice of the entities who were not present
to [it].” Id. at 44.

The small

- claims court held a hearing on the parties’ motions

. 2 After taking the

matter under advisement, the court granted Miller Pipeline and Liberty Mutual’s motion
and dismissed the matter with prejudice. Crown Capital now appeals.

Discussion and Decision

Crown Capital argues that the trial court erred in granting Miller Pipeline and
Liberty Mutual’s motion to dismiss. Because it appears t hat the trial court considered
matters outside the pleadings

— specifically, text excerpted from Crown Capital’s

website

— w e think the issue is properly phrased as whether the trial court erred in
granting the ir motion for summary judgment.

Indiana Trial Rule 12(B) provides that a motion to dismiss for failure to state a
claim shall be treated as a motion for summary judgment when “matters outside the
pleading are presented to and not excluded by the trial court.” Where a trial court treats

a motion to dismis s as one for summary judgment, the court must grant the parties a
reasonable opportunity to present Trial Rule 56 materials. See Ind. Trial Rule 12(B).

The trial court’ s failure to give explicit notice of its intended conversion of

a motion to dismiss to one for summary judgment is reversible error only if a reasonable

2 The hearing was not transcribed.6

opportunity to respond is not afforded to a party and t he party is prejudiced as a result

. 3

Azhar v. Town of Fishers , 744 N.E.2d 947, 950 (Ind. Ct. App. 2001) (citation omitted).
It appears the t rial court treated Miller Pipeline and Liberty Mutual’s motion to
dismiss as a motion for summary judgment; thus, we apply the summary

- judgment

standard. The purpose of summary judgment is to end litigation about which there can be
no factual dispute and which may be determined as a matter of law. Id. (citation
omitted). The moving party bears the burden of making a prima facie showing that there
are no genuine issues of material fact. Ind. T rial Rule 56(C). It is only after the moving
party makes a pr ima facie showing that there is no genuine issue of material fact that the

burden shifts to the non

- moving party to set forth specific facts showing the existence of
a genuine issue for trial. Ind. T rial Rule 56(E).
Summary judgment was properly g ranted h ere. By the express language of the
Assignment, Blair assigned “any and all claims, demands, cause or causes of action of
any kind whatsoever against ________ ____ (at fault party) and/or Liberty Mutual (at
fault insurance carrier) . . . .” Blair did not assign any cause of action against Miller
Pipeline: Miller Pipeline is not named anywhere in the Assignment, and the line for “at

fault party” was left blank. And Blair had no direct cause of action against Liberty

Mu tual, Miller Pipeline’s insurer. As a result, Blair had no cause of action against
Liberty Mutual to assign. S ee Cromer v. Sefton
, 471 N.E.2d 700, 703 (Ind. Ct. App.

3 There is no evidence that Crown Capital wa s prejudiced by this conversion, nor does Crown Capital argue that it was. After Miller Pipeline and Liberty Mutual c ited text from Crown Capital’s webs ite, the trial court held a hearing on the parties’ motions; Crown Capital had an opportunity to respond to Miller Pipeline and Liberty Mutual ’s assertions at that time

.7

1984) (“[T]here is no duty or fiduciary relation running from the insurer to the injured
plaintiff. The insurer’s only duty i s to the insured on its contract.”).
Crown Capital argues that Blair obviously intended to assign the right to recover
from Miller Pipeline, despite the fact that Miller Pipeline was not mentioned in the
Assignment. See Appellant’s Br. p. 7

- 8. But when construing a contract, unambiguous
contractual language is conclusive upon the parties and the courts. Hawa v. Moore , 947
N.E.2d 421, 426 (Ind. Ct. App. 2011). If an instrument’s language is unambiguous, the
parties ’ intent is determined from the four co rners of the instrument. Id. B ecause the
Assignment is unambiguous, we do not examine the parties’ intent. 4

Because Blair failed to assign any valid cause of action to Crown Capital, Crown

C apital has no claim to pursue, and the trial court properly gra nted summary judgment to
Miller Pipeline and Liberty Mutual. 5

Affirmed.

FRIEDLANDER, J., and MAY, J., concur.

4 Perhaps recognizing this, Crown Capital sought to reform the Assignment. Reformati on is an extreme equitable remedy to relieve the parties in the case of mutual mistake or fraud. Peterson v. First State Bank , 737 N.E.2d 1226, 1229 (Ind. Ct. App. 2000) (citation omitted)
, reh’g denied . Reformation is appropriate only where : (1) there i s a mutual mistake such that the written instrument does not reflect what the parties truly intended or (2) there has been a mistake on the part of one party accompanied by fraud or inequitable conduct by the other party. Id. Reformation may correct a sc rivener’s error where it is logically indicated that both parties were mistaken as to the actual contents of the instrument. Id. However
, a mistake of law

— such as a mistake as to the legal import of language used

— will not normally support a claim for refo rmation

. Id. Here, the errors in the Assignment amount to a mistake of law; specifically, a mistake regarding Blair ’s right to r ecover against Liberty Mutual. For this reason, reformation was not appropriate.

5 Because we resolve this case on this gro und, we need not address the parties’ arguments regarding the mistake in the Assignment regarding the car model.