Court of Appeals of Indiana | Memorandum Decision 19A

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- 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.

A TTORNEY FOR A PPELLANT Thomas D. Seal Law Office of Thomas D. Seal Richmond, Indiana A TTORNEY S FOR A PPELLEE 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

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- 2764 Appeal from the Wayne Superior Court The Honorable Charles K. Todd, Jr., Judge Trial Court Cause No. 89D01

- 1512

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- 59

Najam , Judge . 

### Statement of the Case

[1] Robert J. White appeals the trial court’s entry of summa ry judgment in favor of
the Estate of Robert L. White (“Estate”) on White ’s second amendedCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2764 | July 31, 2020 Page 2 of 11 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. Followi ng the death of White’s father, t he 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 Media ted Settlement Agreement (“Agreement”)

. According to the Agreement, the Estate agreed to sell th e 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.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2764 | July 31, 2020 Page 3 of 11 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 immedia te possession of the entire Property

.

[5] At the closing on September 30 , 2015, the executors of the E state executed an Exec utors’ 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 ag ains t 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 fro m the land

. 

### ” I d. at 36. Further more , White alleged that the Estate had

“ abandoned numerous equipment [sic]

. . . on the . . . Property , ” which items White had to remove

. Id.

[7] In response , t he Estate filed a motion for summary judgment . In that motion, the Estate asserted that White ’s claim for fraud sounded in “constructive fraudCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2764 | July 31, 2020 Page 4 of 11 rather than actual fraud

. ” Id . a t 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 Whi te’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 t here is an absence of a genuine factual issue on at least one element of [ White ’s] claimed causes of actio n , 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 en titled 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.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2764 | July 31, 2020 Page 5 of 11 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 c itation 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 Esta te 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 rec ord 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 presente d , 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 theCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2764 | July 31, 2020 Page 6 of 11 appellate rules and , as a result, has failed to meet his bu rden 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 resolv ing 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 f

act 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] plainti ff’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 o ne element of a c ause of action is fatal to that claim. Woo ds v. Qual

- Craft Ind us., Inc. , 648 N.E

. 2d 1198, 1202 (Ind. Ct. App. 1995).Court of Appeals of Indiana | Memorandum Decision 19A

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- 2764 | July 31, 2020 Page 7 of 11 [12] On appeal, White asserts that the trial court erred when it granted summary judgment in favor of the E state 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.Court of Appeals of Indiana | Memorandum Decision 19A

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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 inten t 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 acc ess 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 P roperty “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 Ex ecutors’ 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 P ro perty. See id. at 59

- 6 0. Rather, the designated evidence show s that it was White’s attorney, not a representative of the Estate, who asserted to White thatCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2764 | July 31, 2020 Page 9 of 11 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 c oncerning the crop tenan cy 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 no t legally exist without the property being subject to some burden, he is take n 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 1 172

. Accordingly, the Estate met its burden as the summary judgment
movant to de monstrate that the Estate did not make a material mis r epre se ntation 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 anyCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2764 | July 31, 2020 Page 10 of 11 such evidence. 4 Accordingly, the trial court did not err when it granted summary judgment in f avor 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 pos session 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 ran sacking 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 Est ate 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 oth er elements

.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2764 | July 31, 2020 Page 11 of 11 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 E state. Accordingly, we affirm the trial court.

[21] Affirmed.

Bradford, C.J., and Mathias, J., c oncur
.