Court of Appeals of Indiana | Memorandum Decision 19A01-1610-PL-2355 | September 20, 2017 Page 1 of 15

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.

ATTORNEYS FOR APPELLANT

Karen A. Wyle

Bloomington, Indiana

Paul J. Watts

Watts Law Office

Spencer, Indiana

ATTORNEY FOR APPELLEE

Joseph L. Verkamp

Jasper, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Ronald A. Schwartz,

Appellant-Defendant/Counterclaimant,

v.

Shanna L. Wyatt,

Appellee-Plaintiff/Counterclaim Defendant

September 20, 2017

Court of Appeals Case No.

19A01-1610-PL-2355

Appeal from the Dubois Circuit 

Court

The Honorable William E. 

Weikert, Judge

Trial Court Cause No.

19C01-1401-PL-16

Crone, Judge.
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Case Summary

[1] Ronald A. Schwartz was experiencing financial difficulties and asked Shanna 

L. Wyatt to help him out. He granted her a power of attorney, and she lent him 

money and began to put his financial affairs in order. She later moved in with 

him and paid for renovations to his home. Schwartz executed promissory notes 

for Wyatt’s loans, as well as deeds that gave Wyatt an interest in his property as 

security for those loans. Their relationship soured, and Wyatt obtained a 

protective order against Schwartz. She later filed a complaint for partition of 

the property and payment of the promissory notes. After a bench trial, the 

court granted Wyatt’s request for partition, awarded her possession of the 

property pending its sale, and ordered Schwartz to pay his outstanding 

obligations to Wyatt from his share of the sale proceeds.

[2] On appeal, Schwartz argues that the trial court erred in not finding that Wyatt 

breached a fiduciary duty to him, in calculating her damages, in granting her 

request for partition, and in awarding her possession of the property. He also 

argues that two of the deeds should be declared void. We conclude that Wyatt 

did not breach a fiduciary to Schwartz; that remand is appropriate to consider 

Schwartz’s repayment to Wyatt in calculating her damages; that the trial court 

erred in granting Wyatt’s request for partition but did not err in awarding her 

possession of the property; and that the relevant deeds should be declared void. 

Therefore, we affirm in part, reverse in part, and remand for further 

proceedings.
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Facts and Procedural History

[3] The relevant facts most favorable to the trial court’s judgment are as follows. 

Wyatt’s husband died in a traffic accident in 2004, and she received a 

“substantial” wrongful death settlement. Appealed Order at 3. Wyatt met 

Schwartz in January 2010. Wyatt worked at a credit union, and Schwartz was 

a self-employed long-distance truck driver. In February 2010, Schwartz

approached Wyatt and “request[ed] assistance in meeting his financial 

obligations.” Id. at 14. At that time, his net income was insufficient to meet his 

minimum monthly “credit card, consumer and mortgage indebtedness.” Id. at 

13. In March 2010, Wyatt lent $40,000 to Schwartz, who executed a 

promissory note with an annual interest rate of 6% plus additional interest, 

collection costs, and attorney’s fees in the event of default. Schwartz also 

granted Wyatt a power of attorney. Later that month, as security for the 

promissory note, Schwartz executed deeds conveying his real property (a twoacre tract with a mobile home and a 24.63-acre tract with his residence and 

shop) to himself and Wyatt as joint tenants with right of survivorship. 

Schwartz’s residence was encumbered by two mortgages; that same month, 

Wyatt made three payments on the first mortgage and two payments on the 

second mortgage.

[4] Later that year, Schwartz told Wyatt “that he would pay her if she would work 

for him arranging cargo shipments and maintaining his records.” Id. at 4. 

Wyatt agreed to do so and stopped working at the credit union. Among other 

duties, Wyatt maintained Schwartz’s “business records, tracked fuel costs, tolls, 
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parts, overnight accommodations, invoiced fares, receipted income and 

prepared tax records.” Id. She also found loads for Schwartz’s trucking 

operation, thereby eliminating brokerage fees, negotiated a substantial

reduction in Schwartz’s $107,000 credit card debt, and paid off the remaining

credit card balance in four months. Wyatt also paid over $20,000 of Schwartz’s 

personal debts to relatives and others. As a result of Wyatt’s efforts and 

financial assistance, Schwartz’s business went from operating at a $2400 net 

loss in 2010 (excluding credit card debt forgiveness, which Schwartz reported as 

income on his taxes that year) to posting a $56,000 net profit in 2013.

[5] Schwartz did not pay Wyatt for her services, but in September 2010 he agreed 

to make monthly payments on a Chevrolet Tahoe for her as a birthday present. 

In November 2010, Wyatt moved into Schwartz’s home and rented out her

home. Late in 2011, Schwartz consulted with two construction companies 

about remodeling his home. He hired one of them to perform the work, which 

cost $168,557. Wyatt paid $158,557, and her grandmother, who moved into the 

home, paid $10,000.

[6] Wyatt had an $81,000 home equity line of credit that she used to pay 

Schwartz’s personal and business expenses. When she reached her credit limit, 

Schwartz executed a second promissory note for that amount in February 2013. 

This note had an annual interest rate of 4.25% plus additional interest, 

acceleration of the balance, collection costs, and attorney’s fees in the event of 

default. In April 2013, Schwartz and Wyatt executed deeds granting Schwartz 

an undivided 25% interest and Wyatt an undivided 75% interest in the two 
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properties mentioned above as tenants in common without a right of 

survivorship.

[7] The couple’s relationship deteriorated. In December 2013, Wyatt petitioned for 

a protective order, alleging that Schwartz threatened to burn their home. Wyatt 

was granted a protective order and possession of the 24.63-acre tract, home, and 

shop, and she was ordered to pay both mortgages and the utilities. Schwartz 

was granted possession of the two-acre tract and mobile home.

[8] In January 2014, Wyatt filed a complaint against Schwartz seeking partition of 

the real estate and payment of the promissory notes. Schwartz asserted a 

counterclaim for actual fraud, alleging that Wyatt falsely promised to nullify the 

first promissory note if he signed the second note. A bench trial was held over 

several days from April 2015 through January 2016. In September 2015, 

Schwartz filed a motion to amend his counterclaim in which he alleged that the 

second promissory note was “void due to [Wyatt’s] breach of her fiduciary 

duty[.]” Appellant’s App. Vol. 2 at 57. The trial court never ruled on that

motion.

[9] The court asked the parties to submit proposed findings and conclusions, and 

the court ultimately adopted Wyatt’s submission almost verbatim in a nineteenpage judgment issued in September 2016. In relevant part, the trial court found

that Wyatt had used her credit card to buy business and personal items for 

Schwartz and had given him cash advances, all of which totaled $153,098.33; 

that Schwartz had repaid $74,984.19 to Wyatt but still owed over $96,000, 
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including interest, on the second promissory note; that from 2010 to 2013 

Wyatt had spent $90,714 on household expenses, for which she was not seeking 

reimbursement; that “[t]he benefits in [the] relationship flowed from [Wyatt] to 

[Schwartz] and as such there was no fiduciary relationship in which it can be 

said that [Wyatt] was the dominant party and [Schwartz] a subordinate party”; 

that all transactions between the parties were at arm’s length and primarily for 

Schwartz’s benefit; that the evidence “demonstrates by clear, convincing 

unequivocal proof that [Wyatt] did not exercise undue influence over 

[Schwartz]”; that Schwartz failed to prove that Wyatt committed actual fraud; 

that all claims against the real estate were either mortgages or liens; that Wyatt 

was not entitled to judgment on the first promissory note because it had either 

been paid in full or was included in the second note; and that Wyatt was 

entitled to attorney’s fees for her collection efforts on the second note. 

Appealed Order at 9, 15.

[10] The court granted Wyatt’s request for partition and ordered the sale of both 

tracts of real estate and the home for a list price of $397,400, with the property 

to be auctioned for a minimum of $225,000 if no acceptable offers were 

received. The court allowed Wyatt to reside in the home pending the sale. The 

court also ordered Schwartz to reimburse Wyatt $108,557 from his share of the 

equity for the home improvements,1 $96,738.45 for the balance due on the 

second promissory note, and $5119.05 for attorney’s fees associated with the 

 

1 Wyatt’s grandmother paid $800 per month in rent to live in the home, and the court ordered any payments 

received after January 2016 to be deducted from Wyatt’s claim for $108,557.
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collection of the note. If the equity is insufficient to reimburse Wyatt, then the 

outstanding balance shall be reduced to judgment. The sale is to be free and 

clear of Wyatt’s lien, unless Schwartz is the purchaser, in which case it 

continues against him until paid. “[U]pon satisfaction of all judgments, 

[Wyatt] shall convey her interest in the real estate to [Schwartz].” Id. at 18.

[11] Schwartz now appeals. Additional facts will be provided as necessary.

Discussion and Decision

[12] Schwartz contends that the trial court’s judgment is erroneous in several 

respects. As neither party requested specific findings and conclusions by 

written motion, we treat the trial court’s entry of findings and conclusions as 

sua sponte. Estate of Collins v. McKinney, 936 N.E.2d 252, 259 (Ind. Ct. App. 

2010), trans. denied (2011).

Sua sponte findings only control issues that they cover, while a 

general judgment standard applies to issues upon which there are 

no findings. We may affirm a general judgment with findings on 

any legal theory supported by the evidence. As for any findings 

that have been made, they will be set aside only if they are clearly 

erroneous. A finding is clearly erroneous if there are no facts in 

the record to support it, either directly or by inference.

Eisenhut v. Eisenhut, 994 N.E.2d 274, 276 (Ind. Ct. App. 2013) (citations 

omitted). “[W]e must give due regard to the trial court’s ability to assess the 

credibility of witnesses and will not reweigh the evidence, and must consider 

only the evidence most favorable to the judgment along with all reasonable 
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inferences drawn in favor of the judgment.” Stone v. Stone, 991 N.E.2d 992, 999

(Ind. Ct. App. 2013), aff’d on reh’g, 4 N.E.3d 666.

[13] “It is not necessary that each and every finding be correct, and even if one or 

more findings are clearly erroneous, we may affirm the judgment if it is 

supported by other findings or is otherwise supported by the record.” Id. at 998. 

Although wholesale adoption of a party’s findings is not prohibited, we do not 

encourage this practice because it weakens our confidence that the findings are 

the result of considered judgment by the trial court. Carpenter v. Carpenter, 891 

N.E.2d 587, 592 (Ind. Ct. App. 2008).2 We do not alter our standard of review 

in such situations, but near verbatim reproductions of a party’s findings “may 

appropriately justify cautious appellate scrutiny.” Id. at 593 (citation omitted).

Section 1 – The trial court did not clearly err in concluding 

that Wyatt’s transactions were conducted at arm’s length and 

primarily for Schwartz’s benefit and that she did not exert

undue influence over Schwartz.

[14] Schwartz contends that Wyatt owed him a fiduciary duty as his attorney in fact 

and agent and that she breached her duty “in [m]ultiple [r]espects.” Appellant’s 

Br. at 24. It is true, as Schwartz observes, that a power of attorney creates a 

 

2

Schwartz opines that “[o]ne might reasonably question whether this practice is appropriate when the case 

turns on whether the party drafting the findings has violated the obligations of a fiduciary.” Appellant’s Br. 

at 24 n.22. Given that Schwartz himself was found to have defaulted on a promissory note, his selfrighteousness is not well taken. Our supreme court has acknowledged that the practice of adopting a party’s 

findings “is a practical response to the need to keep the docket moving despite an enormous volume of cases 

and a lack of law clerks and other resources that might make the practice unnecessary.” Ind. Dep’t of Ins. v. 

Everhart, 960 N.E.2d 129, 140 n.7 (Ind. 2012).
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fiduciary relationship as a matter of law. Scribner v. Gibbs, 953 N.E.2d 475, 484 

(Ind. Ct. App. 2011). Also, a fiduciary relationship exists between a principal 

and agent, McKibben v. Hughes, 23 N.E.3d 819, 827 (Ind. Ct. App. 2014), trans. 

denied (2015), and Wyatt undeniably acted as Schwartz’s agent on many 

occasions. Thus, we must agree with Schwartz that the trial court erred in 

concluding that no fiduciary relationship existed. We find this error to be 

harmless, however.

[15] Notwithstanding its finding that no fiduciary relationship existed, the trial court 

also found that all transactions between the parties were at arm’s length and 

primarily for Schwartz’s benefit and that Wyatt presented clear and convincing 

evidence that she did not exercise undue influence over Schwartz. Schwartz 

argues otherwise. Assuming, without deciding, that Schwartz properly raised a 

counterclaim for breach of fiduciary duty below,

3 we find no merit in it.

 

3

Schwartz did not assert a counterclaim for breach of fiduciary duty in his answer to Wyatt’s complaint. 

The phrase “fiduciary duty” appears on only one page of the four-volume trial transcript. Tr. Vol. 2 at 70. In 

his motion to amend counterclaim, which was never ruled on, Schwartz alleged that the second promissory 

note was void “due to [Wyatt’s] breach of her fiduciary duty[,]” but he failed to allege, even in general terms, 

what that breach might have been. Appellant’s App. Vol. 2 at 57. The first coherent mention of a breach

appears in Schwartz’s posttrial findings and conclusions. Appellant’s App. Vol. 3 at 40-41. Notwithstanding 

the vagueness and belatedness of Schwartz’s fiduciary duty counterclaim, we choose to exercise our 

discretion to address the merits of Schwartz’s argument. Cf. Bunch v. State, 778 N.E.2d 1285, 1287 (Ind. 

2002) (acknowledging “doctrine of judicial administration whereby appellate courts may sua sponte find an 

issue foreclosed under a variety of circumstances in which a party has failed to take the necessary steps to 

preserve the issue.”). In his brief, Schwartz also raises the issue of constructive fraud, a phrase which appears 

nowhere else in the record before us. Schwartz’s posttrial findings and conclusions mention fraud in the 

context of fiduciary duty, which could be interpreted as a reference to constructive fraud, see McKibben v. 

Hughes, 23 N.E.3d 819, 826 (Ind. Ct. App. 2014), trans. denied (2015), but this was much too late to alert 

Wyatt and the trial court to the issue. Consequently, we find it waived.
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[16] We have stated that where a fiduciary “benefits from a questioned transaction, 

a presumption of undue influence arises and the fiduciary bears the burden of 

rebutting that presumption.” Scribner, 953 N.E.2d at 484. “The presumption 

may be rebutted by clear and convincing evidence that the fiduciary acted in 

good faith, did not take advantage of the position of trust, and that the 

transaction was fair and equitable.” Id. Schwartz contends that Wyatt 

benefited from certain transactions, especially the remodeling of their shared 

residence,4 and thus Wyatt bore the burden of rebutting the presumption of 

undue influence. He states that “[n]othing beyond Wyatt’s unsubstantiated and 

self-serving statements and summaries underlie the Judgment’s crucial 

conclusions that all transactions between Wyatt and Schwartz were at arm’s 

length and primarily for Schwartz’s benefit[,]” and he argues that this evidence 

cannot be considered clear and convincing. Appellant’s Br. at 29.

[17] We disagree. Wyatt testified that her typewritten and computer-generated 

summaries of income, debts, expenses, loans, and payments were based on over 

1300 documents that she provided to Schwartz in discovery, which his own 

accountant reviewed in performing a forensic audit of the parties’ financial 

 

4 Wyatt argues that “[t]he agreement to remodel the residence was not a principal-agent transaction.” 

Appellee’s Br. at 21. For purposes of this discussion, we presume that it was.
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relationship.5 Both Wyatt and the accountant, as well as Schwartz, were 

examined and cross-examined extensively regarding that relationship, and the 

trial court found Wyatt’s version of events to be the most credible. We may not 

reassess that determination on appeal, and therefore we affirm on this issue.

Section 2 – Remand is appropriate to consider Schwartz’s 

repayment to Wyatt in calculating Wyatt’s damages.

[18] As stated above, the trial court found that Schwartz repaid $74,984.19 to 

Wyatt. Schwartz argues that the court “did not take this figure into account in 

any way in the Judgment.” Id. at 31. If the trial court did account for the 

repayment, the judgment does not specify how. Accordingly, we remand for 

consideration of this issue.

Section 3 – The trial court clearly erred in granting Wyatt’s 

request for partition.

[19] The trial court made the following finding and conclusion regarding the parties’

deeds:

73. In order to secure payment of the original $40,000 

promissory note and other cash and credit card advances, 

[Schwartz] conveyed to [Wyatt] on March 30, 2010 a joint 

 

5

In his notice of appeal, Schwartz asked the court reporter to transcribe the trial and file the transcript and 

exhibits with the trial court clerk. The transcript and exhibits were not submitted to the clerk of this Court, 

however, and we requested them via separate orders. Schwartz complains that Wyatt’s summaries were 

prepared in anticipation of litigation and lacked accompanying documentation, yet his forensic audit was 

also prepared in anticipation of litigation and was based on many (if not all) of the same sources. The trial 

court was aware of these considerations and weighed the evidence as it saw fit. We may not reweigh it on 

appeal.
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undivided interest with right of survivorship in his residence and 

real estate of 26.63 acres.

....

22. All claims that exist against the subject real estate are either 

mortgages or claims which existed prior to the first set of deeds of 

March 3, 2010, and were liens against the real estate at the time 

of this first set of deeds, or were claims that became liens against 

the real estate after the first set of deeds (3-30-10) and before the 

second set of deeds (4-11-13). The second set of deeds play[s] no 

role in the court's decision.

Appealed Order at 10, 16.

[20] Schwartz notes that “in Indiana a deed, absolute and unconditional on its face, 

may be in fact a mortgage used to secure a debt rather than a true conveyance.” 

Patterson v. Grace, 661 N.E.2d 580, 583 (Ind. Ct. App. 1996). “The question of 

whether a deed absolute in form is in fact a mortgage depends upon the 

intention of the parties at the time of its execution.” Id. Schwartz also notes 

that Indiana Code Section 32-17-4-1 governs who may compel partition of land, 

and he presumes that Wyatt sought to do so as a “person that holds an interest 

in the land as a joint tenant or tenant-in-common ... in the person’s own 

right[.]” Ind. Code § 32-17-4-1(a)(1)(A). Schwartz argues that Wyatt’s “true 

position is that of a mortgagee rather than either type of tenant” and that, “[p]er 

the terms of the statute, Wyatt is not entitled to seek partition of the property at 

issue.” Appellant’s Br. at 32.
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[21] Wyatt does not dispute her characterization as a mortgagee6 and simply notes 

that partition and foreclosure are both equitable proceedings. This begs the 

question of whether partition is appropriate here, and we agree with Schwartz 

that it is not. See Scottish Rite of Indpls. Found., Inc. v. Adams, 834 N.E.2d 1024, 

1027 (Ind. Ct. App. 2005) (holding that life tenant could not force partition and 

sale of fee simple interest in property, which would “allow her to convey a 

greater interest than she actually owns.”). Therefore, we reverse and remand 

with instructions to deny Wyatt’s request for partition and amend the judgment 

accordingly. Nothing in our decision should be construed as prohibiting

foreclosure from being pursued as a potential remedy on remand.

Section 4 – The trial court did not clearly err in leaving Wyatt 

in possession of the 24.63-acre tract.

[22] As mentioned above, when the trial court granted Wyatt’s petition for a 

protective order, it awarded her possession of the residence and shop on the 

24.63-acre tract. Schwartz filed a motion to reconsider and requested 

temporary possession of the shop, which the trial court denied on the basis that 

it was “too close to the marital residence to allow the wife to be in the marital 

residence and the husband to be in the ‘shed’ [i.e., shop]. This would be an 

invitation to too many ongoing problems between the two parties.” Appellant’s 

App. Vol. 2 at 52.

 

6 At trial, Wyatt acknowledged that the deeds were executed to secure her loans to Schwartz. Tr. Vol. 1 at 

37.
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[23] Schwartz now asserts that “Wyatt’s possession was evidently issued under the 

misapprehension that [she] and Schwartz were or had been married and that 

the house was marital property” and that Wyatt “grounded her claim to 

possession on the fact that the second set of deeds gave her a 75% interest in the 

residence.” Appellant’s Br. at 33. He notes that the trial court “explicitly 

declined to base any aspect of the Judgment on that second set of deeds” and 

that “[t]he parties cannot amicably share the residence at this point[,]” and he 

argues that “[i]t would therefore be more reasonable and equitable for 

Schwartz, the longtime owner of the property itself as opposed to a security 

interest therein, for whom the property holds precious familial associations, and 

whose business requires regular access to the shop on that property, to regain 

possession.” Id.

[24] Wyatt points out that the initial award of possession was authorized by statute

notwithstanding their marital status. See Ind. Code § 34-26-5-9 (providing that 

a court may “[r]emove and exclude a respondent from the residence of a 

[protective order] petitioner, regardless of the ownership of the residence.”). 

Also, Schwartz testified at the protective order hearing that he did not want to 

stay in the residence at that time. Wyatt spent over $150,000 to remodel the 

residence, has lived there with her elderly grandmother for several years, and

maintains a valuable security interest therein. Under these circumstances, we 
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cannot say that the trial court clearly erred in leaving Wyatt in possession of the 

property.

7

Section 5 – Because the trial court essentially treated the 2013 

deeds as void, and neither party objects, it shall declare them 

void on remand.

[25] Schwartz observes that “the trial court explicitly declined to base any action on 

the second set of deeds executed in 2013” and asserts that the court essentially 

“treated these deeds as void.” Appellant’s Br. at 34. He posits that “[i]n order 

that the title records may reflect that determination, this Court should declare 

the 2013 deeds null and void.” Id. Wyatt does not object or otherwise respond 

to this request in her brief. We see no reason to deny this request and therefore 

direct the trial court on remand to declare the 2013 deeds void.

[26] Affirmed in part, reversed in part, and remanded.

Baker, J., and Barnes, J., concur.

 

7

Schwartz does not argue that he should be allowed to use the shop if he is not given possession of the 

residence.