Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020 Page 1 of 11

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.

ATTORNEY FOR APPELLANT

Thomas D. Seal

Law Office of Thomas D. Seal

Richmond, Indiana

ATTORNEYS FOR APPELLEE

Timothy K. Ryan

Steven T. Henke

Hackman Hulett LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert J. White,

Appellant-Plaintiff,

v.

Estate of Robert L. White,

Appellee-Defendant.

July 31, 2020

Court of Appeals Case No.

19A-CT-2764

Appeal from the Wayne Superior 

Court

The Honorable Charles K. Todd, 

Jr., Judge

Trial Court Cause No.

89D01-1512-CT-59

Najam, Judge.

Statement of the Case

[1] Robert J. White appeals the trial court’s entry of summary judgment in favor of 

the Estate of Robert L. White (“Estate”) on White’s second amended
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complaint, which alleged fraud and waste.

1

 White raises three issues for our 

review, which we consolidate and restate as whether the trial court erred when 

it entered summary judgment in favor of the Estate. 

[2] We affirm.

Facts and Procedural History

[3] David Showalter, Jr. had a longstanding oral agreement with White’s father. 

Pursuant to that oral agreement, White’s father gave Showalter the right to 

farm nearly 500 acres of farmland (“the Property”) in exchange for rent 

payments in the amount of $150 per tillable acre. Following the death of 

White’s father, the Estate continued this agreement with Showalter on an 

annual basis. White was aware that his father rented out the farm property, and 

he saw both Showalter’s father and Showalter farming tillable acreage on the 

Property. However, White never asked Showalter about the terms of the lease.

[4] After his father died, White filed a will contest action that resulted in a 

Mediated Settlement Agreement (“Agreement”). According to the Agreement, 

the Estate agreed to sell the Property to White for $1,715,000. Also, White

agreed that his possession of the Property is “subject to the rights of crop 

tenants to cultivate, tend and harvest growing crops for the 2015 crop year.” 

Appellee’s App. Vol. 2 at 18 (emphasis removed). White was aware of that 

1

 White also filed a claim for trespass against David. However, the trial court dismissed that claim on 

February 2, 2017.
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clause but did not know what the crop tenant’s rights were. However, 

following a conversation with his attorney, White concluded that he would 

have the right to unrestricted immediate possession of the entire Property. 

[5] At the closing on September 30, 2015, the executors of the Estate executed an 

Executors’ Deed and conveyed the Property to White subject to the same rights 

of the crop tenants. Following the closing, Showalter continued to “permit[]

various pieces of equipment” to remain on the real estate. Id. at 31. Showalter 

also “asserted” to White that he and not White had the “exclusive right” to 

possession of all tillable acres pursuant to the oral agreement. Id. at 34. 

[6] Thereafter, White filed a complaint against the Estate, which, as amended,

alleged that the Estate had committed fraud and waste. In particular, White 

alleged that the Estate was aware that White did not know about the terms of 

the oral lease and that, “in an effort to fraudulently induce” White into 

purchasing the Property, the Estate “failed to disclose” to him that the tillable 

acres were subject to the oral lease, which lease deprived him of the right to 

immediate unrestricted access to the Property. Id. at 34. He also alleged that 

the Estate had “damaged the [the Property] by recklessly removing items from 

the land.” Id. at 36. Furthermore, White alleged that the Estate had

“abandoned numerous equipment [sic] . . . on the . . . Property,” which items 

White had to remove. Id.

[7] In response, the Estate filed a motion for summary judgment. In that motion, 

the Estate asserted that White’s claim for fraud sounded in “constructive fraud 
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rather than actual fraud.” Id. at 9 (emphasis removed). Specifically, the Estate 

alleged that White’s complaint failed to demonstrate that a duty existed 

between him and the Estate; that, even if a duty existed, White’s complaint 

failed to demonstrate a breach of that duty; and that White’s complaint 

demonstrated that he did not rely on the Estate’s silence but, rather, that he 

relied on the opinion of his attorney. As to White’s claim for waste, the Estate 

asserted that that claim must fail because the undisputed evidence demonstrated 

that no representative of the Estate entered the Property after the closing. In 

support of its motion, the Estate designated as evidence the mediated settlement 

agreement, the Executors’ Deed, and White’s deposition. White failed to 

respond to the motion or otherwise file any responsive pleadings to the motion 

for summary judgment.2

 

[8] Following a hearing on the Estate’s motion, the trial court found: 

Respectfully, the Court sees no need to go into significant detail 

in this Order regarding the elements for fraud, constructive fraud, 

or waste. . . . The Court finds that as a matter of law, and based 

solely on the designated evidence properly before the Court, that 

there is an absence of a genuine factual issue on at least one 

element of [White’s] claimed causes of action, which then is fatal 

to [White’s] claims. In summary, [the Estate] made a prima facie 

showing that there are no genuine issues of material fact and that 

[the Estate] is entitled to summary judgment as a matter of law 

on the claims within [White’s] complaint and [White] has not 

2

 White filed a brief in opposition to the Estate’s motion for summary judgment on January 24, 2019, but, on 

January 29, he filed a motion to withdraw the brief as untimely. The trial court granted White’s motion.
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designated specific facts in evidence pursuant to Trial Rule 56 

demonstrating the existence of a genuine issue for trial. 

Id. at 3-4 (footnote and citation omitted). Accordingly, the court entered 

summary judgment in favor of the Estate. This appeal ensued. 

Discussion and Decision

[9] White asserts that the trial court erred when it entered summary judgment in 

favor of the Estate on his claims of fraud and waste. The trial court found, and 

White concedes, that he failed to timely respond to the Estate’s motion, to 

designate factual matters in dispute, or to designate any evidence in opposition 

to the Estate’s motion under Trial Rule 56(C). Thus, the resolution of the 

Estate’s motion depends entirely upon the Estate’s designated evidence 

although, as the trial court correctly noted, the Estate must still meet its burden 

to show that there is no genuine issue of material fact and that the Estate is 

entitled to judgment as a matter of law.

[10] In addition, on appeal, White has failed to file an appendix or otherwise direct

us to portions of the record where we could find the relevant documents or the

facts that support his contentions. The Indiana Appellate Rules require 

appellants to include in their brief an argument section that “contain[s] the 

contentions of the appellant on the issues presented, supported by cogent 

reasoning. Each contention must be support by citation to the authorities, 

statutes, and the Appendix or parts of the Record on appeal relied on[.] Ind. 

Appellate Rule 46(A)(8)(a). Here, White has failed to comply with the 
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appellate rules and, as a result, has failed to meet his burden on appeal to 

demonstrate that the trial court erred. Nevertheless, given that the Estate filed 

an appendix that includes the documents relevant to White’s appeal, and our 

preference for resolving issues on the merits, we will consider White’s 

arguments. 

Standard of Review

[11] Our Supreme Court recently stated that:

“When . . . review[ing] a grant or denial of a motion for 

summary judgment, we “stand in the shoes of the trial court.” 

We ask, “whether there is a genuine issue of material fact, and 

whether the moving party is entitled to judgment as a matter of 

law.” The party moving for summary judgment bears the burden 

of making a prima facie showing that there is no issue of material 

fact and that it is entitled to judgment as a matter of law. The 

burden then shifts to the non-moving party to show the existence 

of a genuine issue. On appellate review, we resolve “[a]ny doubt 

as to any facts or inferences to be drawn therefrom . . . in favor of 

the non-moving party.”

Burton v. Benner, 140 N.E.3d 848, 851 (Ind. 2020) (internal citation and 

quotation omitted). “A defendant is entitled to judgment as matter of law when 

undisputed material facts negate at least one element of [a] plaintiff’s claim.” 

Colen v. Pride Vending Serv., 654 N.E.2d 1159, 1162 (Ind. Ct. App. 1995). The 

absence of a genuine factual issue on even just one element of a cause of action 

is fatal to that claim. Woods v. Qual-Craft Indus., Inc., 648 N.E.2d 1198, 1202 

(Ind. Ct. App. 1995).
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[12] On appeal, White asserts that the trial court erred when it granted summary 

judgment in favor of the Estate because it relied on the wrong standard of 

review and because there are genuine issues of material fact as to White’s 

claims for fraud and waste.3

 We address each argument in turn. 

Trial Court’s Standard of Review

[13] White first asserts that the trial court misstated the holding in Woods and relied 

on the wrong standard of review when it stated that the “absence of a genuine 

factual issue on even just one element of a cause of action is fatal to that claim.” 

Appellee’s App. Vol. 2 at 3. Specifically, White asserts that that statement by 

the trial court “is not an accurate representation of the principle actually 

enunciated in the Woods case.” Appellant’s Br. at 12. However, White has not 

provided cogent argument to explain how the trial court misstated the holding 

in Woods. On the contrary, White acknowledges that it “is undisputed that [he] 

must prove all of the elements of its cause of action in order to recover. 

Consequently, if [the Estate] can prove, with undisputed facts, that negate at 

least one of the elements, [he] cannot prevail.” Id. at. 13. White has wholly 

failed to show that the trial court either misstated or misapplied the holding in 

Woods.

3

 The trial court also found that no genuine issue of material fact existed on White's claim of constructive 

fraud. However, White does not make any argument regarding constructive fraud on appeal. 
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Fraud

[14] White next contends that the court erred when it entered summary judgment in 

favor of the Estate because there are genuine issues of material fact as to 

White’s claim for fraud. To prevail on a claim for fraud, White must show that

the Estate made a material misrepresentation of a past or existing fact which 

was untrue, with knowledge of or in reckless ignorance of the 

misrepresentation’s falsity and with the intent to deceive, that he rightfully 

relied upon the misrepresentation, and that his reliance proximately caused the 

injury or damage complained of. See Kesling v. Hubler Nissan, Inc., 997 N.E.2d 

327, 335 (Ind. 2013). On appeal, White specifically asserts that the Estate had 

informed him that he would have immediate unrestricted access to the Property 

after the closing, which representation the Estate knew was false, and that he 

relied on the Estate’s false representation to his detriment. 

[15] Here, in support of its motion for summary judgment, the Estate designated as 

evidence the Agreement, which demonstrated that White acquired the Property 

“subject to the rights of crop tenants to cultivate, tend and harvest growing 

crops for the 2015 crop year.” Appellee’s App. Vol. 2 at 18 (emphasis 

removed). The Estate also designated the Executors’ Deed, which contained 

the same provision. Further, the Estate designated as evidence White’s 

deposition, which showed that no party to the Agreement represented to White

that he would have the right to immediate unrestricted possession of the 

Property. See id. at 59-60. Rather, the designated evidence shows that it was 

White’s attorney, not a representative of the Estate, who asserted to White that 
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he had the right to immediate unrestricted possession of the Property. See id. at 

57. 

[16] In addition, White acknowledged during his deposition that he was aware that 

Showalter rented and farmed tillable acres on the Property. See Appellant’s 

App. Vol. II at 53, 54. That evidence demonstrated, that, at a minimum, White 

was on inquiry notice concerning the crop tenancy agreement. The law has 

always imputed to a purchaser of land all information which would have been 

conveyed by an actual view of the premises, and when one purchases property 

where a visible state of things exists which could not legally exist without the 

property being subject to some burden, he is taken to have notice of the nature 

and extent of the burden. Fenley Farms, Inc. v. Clark, 404 N.E.2d 1164, 1171-72 

(Ind. Ct. App. 1980). When the property was conveyed to White, as a matter 

of law, he was charged with knowledge of the crop tenancy agreement and with 

notice of the nature and extent of the burden represented by that agreement. 

See id at 1172. Accordingly, the Estate met its burden as the summary judgment 

movant to demonstrate that the Estate did not make a material 

misrepresentation to White which was untrue. As such, the Estate met its 

burden to negate the first element of White’s claim for fraud. 

[17] At that point, the burden shifted to White to designate evidence to demonstrate 

that a genuine issue of material fact existed. But White did not designate any 
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such evidence.4 Accordingly, the trial court did not err when it granted 

summary judgment in favor of the Estate on White’s fraud claim.

Waste

[18] Finally, White asserts that the court erred when it entered summary judgment 

in favor of the Estate on his claim for waste. This Court has previously stated: 

“At common law, the owner or a person with an interest in real property may 

bring an action for waste for the destruction, misuse, alteration or neglect of the 

premises by one lawfully in possession of the premises.” Wright Motors, Inc. v. 

Marathon Oil Co., 631 N.E.2d 923, 927 n.3 (Ind. Ct. App. 1994). On appeal, 

White specifically contends that, “notwithstanding [the Estate’s] representation 

to the contrary, [White’s] testimony d[id] state that the Estate, or its agents, 

[had] commit[ed] affirmative acts of destruction by ransacking the trucks, 

throwing junk out, and making things worse.” Appellant’s Br. at 19. 

[19] However, the Estate designated as evidence White’s deposition, which 

demonstrated that the alleged waste happened after closing and that no

representative of the Estate entered the Property after that date. Appellee’s 

App. Vol. 2 at 61, 74. That designated evidence negated one element of 

4

 White also appears to suggest that, because the trial court did not go into detail about every element of his 

fraud claim, it failed to consider the claim. But White ignores the fact that the Estate was only required to 

negate one element of White’s claim in order to be entitled to summary judgment. Accordingly, once the 

trial court found that there is no genuine issue on one element, it did not have the obligation to address the 

other elements. 
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White’s waste claim, namely, that it was the Estate that had committed the 

alleged waste. The burden then shifted to White to demonstrate that a genuine 

issue of material fact existed. But, again, White did not designate any such 

evidence. Therefore, the trial court did not err when it granted summary 

judgment in favor of the Estate on White’s claim for waste.

[20] In sum, the trial court did not err when it entered summary judgment in favor 

of the Estate. Accordingly, we affirm the trial court. 

[21] Affirmed.

Bradford, C.J., and Mathias, J., concur.