MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

APPELLANT PRO SE

Maria E. Bonner

Gary, Indiana

ATTORNEY FOR APPELLEE

Rick C. Gikas

Merrillville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Maria Bonner,

Appellant-Plaintiff,

v.

Elena Magana,

Appellee-Defendant.

November 18, 2015

Court of Appeals Case No.

45A03-1505-PL-429

Appeal from the Lake Superior 

Court.

The Honorable Diane Kavadias 

Schneider, Judge.

Cause No. 45D11-1407-PL-78

Barteau, Senior Judge

Statement of the Case1

[1] Maria Bonner appeals from the trial court’s order on Bonner’s motion for 

summary judgment and Elena Magana’s counter-motion for summary 

1 In her opening brief, Bonner requests oral argument in this appeal. We deny Bonner’s request.

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judgment, contending that the trial court erred by denying her motion and 

granting Magana’s motion. We affirm.

Facts and Procedural History

[2] Bonner is Magana’s daughter and the two lived together in a residence located 

at 3725 Grand Boulevard in East Chicago. On November 20, 2012, James 

Mason, Bonner’s former boyfriend, transferred ownership of the property to 

Magana by quitclaim deed, which was recorded by the assessor’s office on 

November 26, 2012. 

[3] In June 2014, Magana discovered several pieces of her jewelry were missing 

and, suspecting that Bonner was responsible for or involved in the 

disappearance of the jewelry, filed an ejectment action against her. After 

determining in that action that Magana was the legal owner and that Bonner 

had not established a legal claim to the property, the trial court entered an order 

to evict Bonner. 

[4] Shortly after the ejectment action was filed, Bonner filed a complaint seeking to 

quiet title to the property in her name, alleging 1) breach of oral contract, 2) 

breach of a covenant of good faith, 3) intentional misrepresentation, 4) 

employment discrimination and wrongful discharge, and 5) intentional 

infliction of emotional distress. Bonner also filed a Chapter 7 bankruptcy 

petition, and filed an emergency motion to stop eviction, which was denied by 

the bankruptcy court for failure to state a claim. Bonner left the residence by 

the date ordered by the trial court, September 2, 2014. 

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[5] On November 5, 2014, Magana deeded the residence to her son, Thomas P. 

Magana. On November 24, 2014, Bonner sent a verified notice to her mother

of her intent to file a mechanic’s lien against the property alleging that she was 

owed $7,000.00 for work done there. Later, Bonner filed a “claim of lien” on 

the property for improvements Bonner alleged she performed there, contending 

that she was owed $10,000.00 for work done through November 10, 2014.

[6] On December 4, 2014, Bonner filed a motion to void the transfer of quitclaim 

deed to Thomas P. Magana. She also sent a letter to Thomas threatening to 

place liens on the house he owned with his wife and against his incorporated 

business.

[7] Both Bonner and Magana filed motions for summary judgment in the quiet title 

action and designated materials in support of their positions. Bonner 

designated Mason’s affidavit in which he claimed that Bonner paid the 

purchase price of $2,000.00 for the property to him. He claimed that he was 

aware of an oral agreement between Magana and Bonner to list Magana on the 

deed as the owner of the property for tax purposes only, and that at any time 

Bonner could demand that her name and not Magana’s be listed on the title as 

the owner of the property. 

[8] Magana, however, stated in her affidavit that Bonner was under a federal 

restitution order for her convictions of defrauding the Social Security 

Administration in the amount of $434,617.30 and the United States 

Department of Education in the amount of $24,999.00. Magana’s name was 

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listed on the quitclaim deed in order to take advantage of certain tax deductions 

available due to Magana’s age, but there was no written or oral agreement 

requiring Magana to deed the property to Bonner on some future date. Magana 

said that when Mason offered to deed the house to her she accepted. 

[9] Magana flatly denied ever employing Bonner, paying her any wages, or 

promising to pay her any wages. After Bonner left the residence, Magana did 

not authorize Bonner or anyone acting on Bonner’s behalf to return there to 

perform any work on, or supply any materials to, the property. She also stated 

that no work had been done on the property since September 2, 2014. Magana 

asserted that all of the improvements listed by Bonner had been performed 

before that date. Further, she claimed that she was not an agent or employee of 

a governmental entity and had no official power or authority granted by a 

governmental entity.

[10] The trial court held a hearing on the cross-motions for summary judgment and 

took the matter under advisement. Later, the trial court issued its order denying 

Bonner’s motion and granting Magana’s motion. Bonner now appeals.

Discussion and Decision

[11] We review an order on summary judgment de novo applying the same standard 

as that used by the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

2014). We draw all reasonable inferences in favor of the non-moving parties 

and will find that summary judgment is appropriate if the designated

evidentiary matter shows that there are no genuine issues as to any material fact 

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and that the moving party is entitled to judgment as a matter of law. Id. A fact 

is considered to be material if its resolution would affect the outcome of the 

case. Id. An issue is considered to be genuine if a trier of fact is required to 

resolve the parties’ differing accounts of the truth, or if the undisputed material 

facts support conflicting reasonable inferences. Id.

[12] The party moving for summary judgment bears the initial burden of 

demonstrating the absence of any genuine issue of fact as to a determinative 

issue. Id. Once that burden is met, the burden shifts to the non-movant to 

come forward with contrary evidence showing an issue for the trier of fact. Id.

The non-moving party has the burden on appeal of persuading us that the grant 

of summary judgment was erroneous. Id. However, on review, we carefully 

assess the trial court’s decision to ensure that the non-moving party was not 

improperly denied his or her day in court. Id. In addition, the fact that both 

parties have filed cross-motions for summary judgment does not alter our 

standard of review. Sargent v. State, 27 N.E.3d 729, 732 (Ind. 2015). We 

consider each motion separately to determine whether the moving party is 

entitled to judgment as a matter of law. Id. 

[13] Magana contends that all of Bonner’s allegations of error are waived for failure 

to present cogent reasoning supported by citation to authorities, statutes, the 

appendix or parts of the record on appeal. See Ind. Appellate Rule 46(A)(8)(a). 

Indeed, the few citations to case law used by Bonner in her brief refer only to 

the standard of review for summary judgment. “[A] pro se litigant is held to the 

same standards as a trained attorney and is afforded no inherent leniency” 

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because of her self-representation. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 

2014). However, we prefer to decide issues on the merits and do so here. See,

e.g., Montgomery v. State, 21 N.E.3d 846, 857 (Ind. Ct. App. 2014), trans. denied. 

[14] Bonner alleged that Magana breached an oral agreement for the transfer of a 

deed to the property upon Bonner’s request. As it pertains to this case, the 

Statute of Frauds provides that a person may not bring an action involving any 

contract for the sale of land unless the promise, contract, or agreement upon 

which the action is based is in writing and signed by the party against whom the 

action is brought. Ind. Code § 32-21-1-1(b)(4) (2002). Indiana courts have 

applied the principle that an agreement to convey land is subject to the writing 

requirement of the Statute of Frauds. Huber v. Hamilton, 33 N.E.3d 1116, 1123 

(Ind. Ct. App. 2015). This is so because the underlying purpose of the Statute 

of Frauds’ writing requirement is to preclude fraudulent claims when the word 

of one person is pitted against the word of another person, and to remove the 

temptation of perjury. Id. 

[15] In support of her argument, Bonner was required to establish the elements of a 

breach of contract action, namely, the existence of a contract, Magana’s breach 

of the contract, and damages. See Fowler v. Campbell, 612 N.E.2d 596, 600 (Ind. 

Ct. App. 1993). Here, Bonner has failed to establish the existence of the 

contract. Because the quitclaim deed was required to be in writing, any 

agreement between Bonner and Magana for a future conveyance of the property 

was also required to be in writing. See Johnson v. Sprague, 614 N.E.2d 585, 588 

(Ind. Ct. App. 1993) (enforceable land sale contract must be evidenced by a 

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writing consistent with underlying purposes of Statute of Frauds). Since there 

was no genuine issue of material fact as to Bonner’s allegation of breach of oral 

agreement, the trial court correctly granted summary judgment in favor of 

Magana on that issue. 

[16] Next, Bonner argued that Magana breached a covenant of good faith and fair 

dealing by failing to convey title to the property to Bonner upon her request. 

Bonner’s complaint alleged that “[t]he law imposed duties on [Magana] to 

honor and abide in good faith toward [Bonner].” Appellant’s App. p. 3. The 

complaint further alleged that Magana denied “the oral agreement without 

probable cause and in bad faith; . . . by attempting to cover up the fact that there 

was no good cause to deny [Bonner] for the title based on the oral agreement.” 

Id.

[17] We have already determined that there was no enforceable agreement for the 

conveyance of the property to Bonner. Therefore, the trial court correctly 

granted summary judgment in favor of Magana on that ground alone. Further, 

while Indiana courts have recognized an implied covenant of good faith and 

fair dealing in contract law, that covenant is generally only in limited 

circumstances involving employment and insurance contracts, neither of which 

are applicable here, and only applies to written contracts. See Allison Union 

Hosp., Inc., 883 N.E.2d 113, 123 (Ind. Ct. App. 2008). The trial court did not 

err by granting summary judgment in favor of Magana. 

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[18] Bonner also alleged that Magana engaged in intentional misrepresentation. She 

asserts that Magana “promised good faith and easy claim payment” to Bonner, 

but did not intend to follow through with the promises, which “induc[ed] 

[Bonner] to rely upon them and to act or refrain from acting in reliance of the 

oral agreement.” Appellant’s App. pp. 3-4. 

[19] “The elements of common-law fraud are ‘(1) a material misrepresentation of 

past or existing fact which (2) was untrue, (3) was made with knowledge of or 

in reckless ignorance of its falsity, (4) was made with the intent to deceive, (5) 

was rightfully relied upon by the complaining party, and (6) which proximately 

caused the injury or damage complained of.’” Kesling v. Hubler Nissan, Inc., 997 

N.E.2d 327, 335 (Ind. 2013) (quoting Lawyers Title Ins. Corp. v. Pokraka, 595 

N.E.2d 244, 249 (Ind. 1992)). Additionally, actionable fraud arises from false 

representations of past or existing facts, not from representations as to future 

action or future conduct. Kopis v. Savage, 498 N.E.2d 1266, 1272 (Ind. Ct. App. 

1986). Actionable fraud cannot be based on things such as broken promises, 

unfulfilled predictions, or statements of existing intent which are never carried 

out. Id. 

[20] Bonner relied upon her assertion that Magana made an oral promise to convey 

title to the property to her upon demand on an undetermined future date, not 

on a claim that Magana made a material misrepresentation of past or existing 

fact. Therefore, Magana has established that she was entitled to summary 

judgment because there was no genuine issue of material fact as to one of the 

elements of actual fraud—a material misrepresentation of past or existing fact. 

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[21] Moreover, she cannot establish a genuine issue of material fact to support a 

claim of constructive fraud. Of the five elements of constructive fraud, Bonner 

cannot establish a genuine issue of material fact about a violation of a duty 

owed to her by the making of deceptive material misrepresentations of past or 

existing facts or remaining silent when a duty to speak exists. See Demming v. 

Underwood, 943 N.E.2d 878, 892 (Ind. Ct. App. 2011), trans. denied. A plaintiff 

alleging the existence of constructive fraud has the burden of proving this 

element. Id. 

[22] In the fourth count of Bonner’s complaint, she alleged “discharge in violation of 

[the] oral agreement.” Appellant’s App. p. 4. She stated that Magana 

“discriminated against [her] in violation of oral agreement. Said discharge and 

discrimination violated public policy, common law and [Bonner’s] 

constitutional rights, which states that a person may not be deprived.” Id. 

[23] There is no evidence that Magana ever employed Bonner. Assuming, arguendo, 

that Magana did employ Bonner, Indiana is an employment at will state, 

allowing employers to discharge an employee for any reason or no reason at all. 

Baker v. Tremco, Inc., 917 N.E.2d 650, 653 (Ind. 2009). Therefore, Bonner has 

no valid claim related to being discharged from whatever employment she 

claims existed. 

[24] Additionally, the Indiana Code defines a discriminatory practice in pertinent 

part as “the exclusion of a person from equal opportunities because of race, 

religion, color, sex, disability, national origin, ancestry, or status as a veteran.” 

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Ind. Code § 22-9-1-3(1)(1) (2010). Here, there is no allegation that Magana 

discriminated against Bonner for any of those reasons. Bonner did not set forth 

designated materials showing that she had filed a discrimination charge with 

the Equal Employment Opportunity Commission a prerequisite to bringing an 

employment discrimination action. See 29 C.F.R. § 1614.105 (2010); 42 

U.S.C.A. § 2000e-5 (2009). Consequently, Magana was entitled to summary 

judgment on that claim. 

[25] Bonner had claimed that her discharge from employment for her mother was in 

violation of Bonner’s constitutional rights. The purpose of 42 U.S.C.A. § 1983 

is to deter state actors, and private individuals acting in collaboration with state 

officials, from using a “badge of authority” to deprive individuals of rights 

guaranteed by the United States Constitution. K.M.K. v. A.K., 908 N.E.2d 658, 

662 (Ind. Ct. App. 2009), trans. denied. A plaintiff seeking redress under § 1983 

must show that the defendant deprived the person of a right while acting under 

color of law. Id. In order to establish that the defendant was acting under color 

of law, the plaintiff must present evidence of a concerted effort between a state 

actor and the defendant. Id.

[26] Here, Magana stated in her affidavit, which was designated for summary 

judgment, that she was not an agent or employee of any governmental entity 

and had no official power or authority granted to her by a governmental entity. 

Bonner did not designate evidence to the contrary. Because the designated 

evidence did not establish that Magana was acting under color of law, the trial 

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court correctly granted summary judgment in her favor on Bonner’s claim 

alleging a violation of constitutional rights. 

[27] Bonner’s last allegation against Magana was a claim for intentional infliction of 

emotional distress. Again, Bonner’s claim was based upon the alleged oral 

agreement between the two women. “[E]motional distress is not a recoverable 

damage under a pure breach of contract theory.” Holloway v. Bob Evans Farms, 

Inc., 695 N.E.2d 991, 995 (Ind. Ct. App. 1998). Therefore, the trial court 

correctly entered summary judgment in Magana’s favor on this claim. 

[28] Woven throughout Bonner’s arguments is the reference that she paid $2,000.00 

for the property titled in Magana’s name, and that Magana’s claim to title in the 

property should fail for want of consideration. This argument is unpersuasive 

because it is not relevant to any of the claims before us. Each of Bonner’s 

claims is based on the breach of an alleged oral agreement to transfer title to the 

property. Magana’s lack of consideration in the original purchase of the 

property from Mason, if indeed it was sold and not transferred as a gift, is 

irrelevant to the breach of contract claims.

Conclusion

[29] In light of the foregoing, the trial court’s decision is affirmed in all respects.

[30] Affirmed. 

Najam, J., and May, J., concur.

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