Converted file nhv

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FOR=20 PUBLICATION

ATTORNEYS FOR=20 APPELLANTS:    ATTORNEY FOR APPELLEES:

WILLIAM=20 L. WILSON     SHAWN P. RYAN
BERNARD=20 E. EDWARDS, JR.    South Bend, Indiana
Anderson, Agostino & Keller,=20 P.C.
South Bend, Indiana

=20 IN THE COURT OF = APPEALS OF=20 INDIANA=20

PATRICK J. MCGRAW, P.J. MAC, INC.    )

and JAMISON INN PARTNERSHIP,             )
                                         )
Appellants-Defendants,                   )
                                         )
vs.                                      )    No.  71A04-0312-CV-635
                                         )              =20
LOUIS MARCHIOLI, SUSANNA                 )
MARCHIOLI, and EDWARD                    )
KISSCORNI on behalf of themselves        )
and all others similarly situated as     )
Members of the Jamison Residential       )
Condominium Association, Inc.,           )
                                         )
    Appellees-Plaintiffs.                )

APPEAL=20 FROM THE ST. JOSEPH SUPERIOR COURT
The = Honorable=20 Jenny Pitts Manier, Judge

Cause No. 71D09-9809-CP-01116

August=20 10, 2004

OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary
Patrick = J.=20 McGraw, P.J. Mac, Inc., and Jamison Inn Partnership (collectively, = =93McGraw=94)=20 appeal the trial court=92s Order Approving Compromise and Settlement of = Class=20 Action. In particular, McGraw claims that the trial court erroneously = enforced=20 the settlement agreement because a condition contained within the = mediated=20 settlement agreement had not been satisfied. Because McGraw elected to = go=20 forward with the agreement even after realizing that the condition = contained=20 therein would not be satisfied, we find that McGraw waived the condition = and=20 cannot now attempt to avoid any obligation under the settlement = agreement=20 because the condition was not satisfied. Consequently, we affirm.
Facts and Procedural=20 History
This case arises out of = a=20 dispute regarding the placement and acquisition of easements. Louis = Marchioli,=20 Susanna Marchioli, and Edward Kisscorni (collectively, =93the Class = Members=94) are=20 owners of units in the Jamison Residential Condominiums complex, which = is=20 situated on what we will refer to as =93the Residential Property.=94 = McGraw is=20 developing the real estate physically adjacent to the north of the = Residential=20 Property, which we will refer to as =93the 615 Property.=94 At one time, = the=20 Residential Property and the 615 Property comprised a single tract of = land,=20 which was owned by Francis Smith. Smith conveyed the Residential = Property to the=20 Jamison Inn Partnership in 1987. The deed conveying the Residential = Property=20 reserved an easement for ingress and egress over the Residential = Property and=20 specified that the reason for reserving the easement was to prevent the = 615=20 Property from becoming landlocked. See footnote The=20 location of this easement, however, was not specifically designated. = See footnote
Eventually,=20 McGraw began developing Jamison House, a seven-unit condominium = building, on the=20 615 Property. During the course of developing the 615 Property, = construction=20 vehicles accessed the 615 Property by driving through the grassy, = landscaped=20 common area located at the northern portion of the Residential Property. = McGraw=20 made known his intent to pave this path as a means of egress and ingress = for the=20 Jamison House Development.
Susanna Marchioli was not pleased with = this turn=20 of events because the traffic to and from the 615 Property invaded her = quiet=20 enjoyment of the common areas adjacent to her condominium, of which she = owned an=20 undivided interest. Thus, the Class Members filed a verified complaint = to enjoin=20 McGraw from further =93developing, paving, using, or otherwise improving = any of=20 the common areas in the Residential Property.=94 Appellant=92s App. p. = 13.=20 Subsequently, the parties agreed to submit their dispute to mediation. =
As a=20 result of settlement negotiations, the parties entered into a settlement = agreement by which the Class Members agreed to grant McGraw three = easements=20 along the Residential Property: the Western Easement, the Eastern = Easement, and=20 the Northern Easement. The Class Members also agreed to cooperate with = McGraw in=20 obtaining an easement from the owners of an adjacent lot=97the Turtle = Creek=20 Easement. See footnote In=20 exchange for the three easements on the Residential Property and the = Class=20 Members=92 cooperation in obtaining the Turtle Creek Easement, McGraw = agreed to=20 pay the Class Members one lump sum of $15,000. Additionally, the = settlement=20 agreement expressly provided: =93This settlement is contingent on the = parties=20 securing the Turtle Creek Easement within a period of ninety (90) days = from the=20 date of this Agreement and obtaining any necessary approval from the = Court.=94=20 Appellant=92s App. p. 205, 215. The parties executed the Settlement = Agreement on=20 June 14, 2001.
The Class Members cooperated with McGraw in his = attempt to=20 obtain the Turtle Creek Easement. Due to what McGraw perceived as an = exorbitant=20 asking price for the Turtle Creek Easement, See footnote however,=20 McGraw decided to forgo it as a means of access to the Jamison House=20 Development. Nonetheless, shortly after the ninety-day time period for = obtaining=20 the Turtle Creek Easement expired, McGraw elected to partially pave the = Western=20 Easement described in the Settlement Agreement. Additionally, at some = point=20 before September 2003, Jamison House residents began using the Northern=20 Easement. Although McGraw was using at least two of the three easements = the=20 Class Members had agreed to grant McGraw, McGraw had not yet paid the = Class=20 Members the $15,000 specified in the Settlement Agreement for use of the = easements. Consequently, the Class Members moved the trial court to = enforce the=20 Settlement Agreement.
After a hearing on the matter, the trial court = =93determined that the Plaintiffs have complied with the gravamen of the = settlement agreement, that defendants have taken advantage of and have=20 benefitted [sic] from the easements contemplated to be given by = plaintiffs under=20 the Settlement Agreement, and that the Settlement Agreement should be = enforced.=94=20 Appellant=92s App. p. 7-8. McGraw now appeals.
Discussion and Decision
McGraw=20 contends that the trial court erred when it enforced the Settlement = Agreement=20 because one of the conditions necessary to make the agreement = enforceable had=20 not been satisfied. In particular, McGraw argues that because the Turtle = Creek=20 Easement was not obtained, the Settlement Agreement was rendered legally = defunct=20 and should not have been enforced. The Class Members counter that = because McGraw=20 used at least one or more of the easements specified in the Settlement=20 Agreement=97and even paved the Western Easement=97McGraw waived the = condition that=20 the Turtle Creek Easement be obtained. Having waived this condition, the = Class=20 Members continue, McGraw cannot now try to avoid his obligation to pay = the Class=20 Members for use of the easements.
At the outset we note that it is = well=20 settled that the construction of settlement agreements is governed by = contract=20 law. Ind. State Highway Comm=92n v. Curtis, 704 N.E.2d 1015, 1018 = (Ind.=20 1998); see also 5 I.L.E. Compromise & Settlement =A7 = 21 (1958).=20 Construction of the terms of a written contract is a pure question of = law for=20 the court, and we conduct a de novo review of the trial court=92s = conclusions in=20 that regard. Park Hoover Village Condo. Ass=92n, Inc. v. Ardsley/Park = Hoover=20 Ltd. P=92ship, 766 N.E.2d 13, 17 (Ind. Ct. App. 2002), reh=92g=20 denied.
The parties agree that the obtaining of the Turtle Creek = Easement=20 was a condition precedent explicitly set forth in the Settlement = Agreement.=20 Under contract law, a condition precedent is a condition that must be = performed=20 before the agreement of the parties becomes a binding contract or that = must be=20 fulfilled before the duty to perform a specific obligation arises.=20 Curtis, 704 N.E.2d at 1018; see also Restatement = (Second) of=20 Contracts =A7 224 (1981) (a condition is an event that must occur = before=20 performance under a contract becomes due); 13 Richard A. Lord, = Williston on=20 Contracts =A7 38.7 (4th ed. 2000) (a condition precedent is either = an act of a=20 party that must be performed or a certain event that must happen before = a=20 contractual right accrues or contractual duty arises).
As a general = rule, an=20 express condition must be fulfilled or no liability can arise on the = promise=20 that the condition qualifies. 13 Williston on Contracts =A7 38.7; = Restatement (Second) of Contracts =A7 225 (1981) (if a condition = does not=20 occur, performance of a duty subject to a condition cannot become due = and if the=20 condition can no longer occur, the duty is discharged). Indiana courts = have=20 consistently recognized this rule. See, e.g., Blakley v. = Currence,=20 172 Ind. App. 668, 361 N.E.2d 921, 923 (1977) (holding that an agreement = containing the clause =93subject to loan approval=94 did not become a = binding=20 contract because approval was not obtained); Wetzel v. Andrews, = 136 Ind.=20 App. 117, 198 N.E.2d 19, 21 (1964) (holding that a lease was not valid = where the=20 condition precedent of statutorily required approval by the governmental = entity=20 was not met). Performance of a condition, however, may be excused by = waiver.=20 Curtis, 704 N.E.2d at 1019.
=93Waiver=20 is an intentional relinquishment of a known right involving both = knowledge of=20 the existence of the right and the intention to relinquish it.=94 = Int=92l Health=20 & Racquet Club, Inc. v. Scott, 789 N.E.2d 62, 66 (Ind. Ct. App. = 2003)=20 (quoting van de Leuv v. Methodist Hosp. of Ind., Inc., 642 N.E.2d = 531,=20 533 (Ind. Ct. App. 1994), reh=92g denied). A condition in a = contract may be=20 waived by the conduct of a party. Id. A waiver of a condition = that occurs=20 after the time for performance of the condition becomes due is referred = to as an=20 election:
[A]=20 party that has waived a condition after the time for occurrence = of the=20 condition has expired is subject to a dramatically different rule, one = that has=20 been influenced by the concept of election. The word election = signifies a=20 choice, one that is often binding on the party that makes it. . . . When = the=20 time for occurrence of a condition has expired, the party whose duty is=20 conditional has such a choice. That party can take advantage of the=20 nonoccurrence of the condition and treat the duty as discharged or can = disregard=20 the nonoccurrence of the condition and treat the duty as unconditional. = Courts=20 often hold that a party that chooses to disregard the nonoccurrence of a = condition is bound by an election to treat the duty as unconditional; = that party=20 cannot reinstate the condition even if the other party has not relied on = this=20 choice.=20

II=20 E. Allen Farnsworth, Farnsworth on Contracts =A7 8.5 (3d ed. = 2004)=20 (emphasis in original).
The Settlement Agreement was expressly = conditioned=20 upon McGraw obtaining the Turtle Creek Easement within ninety days. = McGraw could=20 have obtained the Turtle Creek Easement within the allotted time, but he = was=20 unwilling to pay the premium associated with the use of this easement. = Instead,=20 McGraw elected to wait until after the ninety days expired and = then=97knowing that=20 the condition precedent had not been satisfied=97began using at least = two of the=20 other easements specified in the Settlement Agreement. By using the = easements=20 specified in the Settlement Agreement, McGraw evinced an intent to elect = to go=20 forward with the Settlement Agreement despite the fact that the = condition=20 precedent had not been satisfied. McGraw is bound by his election to use = at=20 least two of the easements specified in the Settlement Agreement and = cannot now=20 attempt to rely on that condition to avoid having to satisfy his end of = the=20 bargain.
McGraw asserts that by paving the Western Easement, he was = merely=20 asserting the reserved easement rights from the Smith Deed, not waiving = any=20 rights or ratifying the Settlement Agreement. We reject this = self-serving=20 assertion for varied reasons. First, Jamison House residents are using = at least=20 two easements, not just one as was specified in the Smith Deed. Second, = the=20 easements being used are located in the same general area as the = easements=20 specified in the Settlement Agreement. Third, the easement reserved by = the Smith=20 Deed was not specifically located, but Smith averred that the easement = he used=20 when he retained possession of the 615 Property was located on the = northeastern=20 portion of the Residential Property. Fourth, the purpose of the reserved = easement was to assure that the 615 Property would not become = landlocked, which=20 is not a concern because the 615 Property can be accessed by public = alleys. In=20 light of the foregoing, we cannot say that the trial court erred by = enforcing=20 the Settlement Agreement.
Affirmed.
SULLIVAN=20 J., and MAY, J., concur.

Footnote: Because=20 the 615 Property is accessible from public alleys, it was not actually = in danger=20 of being landlocked.

Footnote: Based=20 on an affidavit filed by Smith, we know that he would traverse the = panhandle=20 portion of the Residential Property, which was located in the northeast = portion=20 of the parcel along the eastern border of the 615 Property.

Footnote: McGraw=20 was responsible for paying any premium for the Turtle Creek Easement. =

Footnote:
Turtle=20 Creek wanted to charge McGraw $3000 per year for use of the Turtle Creek = Easement.