Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020 Page 1 of 10

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 APPELLANTS

Robert J. Palmer 

May • Oberfell • Lorber 

Mishawaka, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Stanley C. Kinkade and Sherry 

Kinkade,

Appellants-Plaintiffs,

v.

Jason Silvey and Jennifer Silvey, 

Appellees-Defendants.

March 18, 2020

Court of Appeals Case No.

19A-CC-2565

Appeal from the Madison Circuit 

Court

The Honorable Andrew R. 

Hopper, Judge

The Honorable Christopher A. 

Cage, Master Commissioner

Trial Court Cause No.

48C03-1601-CC-19

Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020 Page 2 of 10

Case Summary

[1] Stanley and Sherry Kinkade (collectively, “Appellants”) purchased a trailer 

from Jason and Jennifer Silvey (collectively, “Appellees”) during the early part 

of 2015. At some point after completing the purchase, Appellants discovered 

damage to the trailer, which they claim should have been disclosed by 

Appellees at the time of the sale. In January of 2016, Appellants filed suit 

against Appellees, alleging misrepresentation and breach of contract. 

Following a bench trial, the trial court entered judgment in favor of Appellees. 

Appellants challenge the trial court’s judgment, arguing that they proved their 

claims against Appellees. Because we disagree, we affirm.

Facts and Procedural History1

[2] The trial court’s presentation of the underlying facts provide as follows: In late 

January/early February of 2015, Appellees sold a Coachman camper trailer to 

Appellants. The trailer was approximately seven years old and was located in 

the Dry Dock Campground in Huntington. Appellees cited their declining use 

of the trailer as the reason behind their decision to sell it. Appellants sought to 

purchase the trailer in order to spend more time with family “already located in 

the campground.” Appellants’ App. Vol. II p. 17. 

1

 Appellants rely on the trial court’s factual findings in their statement outlining what they deem to be the 

relevant facts. Given that the parties have not provided this court with a copy of the transcript of the July 31, 

2019 bench trial, we will do the same.
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[3] Per campground rules, the sale of any trailer, which was sold and was to remain 

at the campground, was required to be conducted through the campground 

owner Kay Fetter as the go between. In that capacity, Fetter handled 

communications and paperwork related to the transaction in exchange for a ten 

percent commission. After learning of Appellees’ intent to sell the trailer, Fetter 

inquired as to whether Appellees had noticed any leaks or other problems. 

Jennifer Silvey replied that “everything works inside and there has [sic] been no 

leaks.” Appellants’ App. Vol. II p. 17. 

[4] Appellees last used the trailer in warmer weather and with all sides extended in 

the Fall of 2014. Appellants went to the campground and viewed the trailer in 

January of 2015. At the time, it was very cold and “no electricity was active to 

the trailer.” Appellants’ App. Vol. II p. 18. Also at the time of the viewing, 

Fetter conveyed Jennifer Silvey’s statement regarding the condition of the 

trailer to Appellants and the record indicates that the floors of the trailer were 

hard. Appellants walked around the entire trailer and did not notice any 

damage or problems with Sherry Kinkade saying “everything looked good.” 

Appellants’ App. Vol. II p. 18. Appellants did not, however, extend the slide 

outs or ask that they be extended. 

[5] After purchasing the trailer, Appellants next visited the trailer in either March 

or April of 2015. On this visit, they extended the sides of the trailer and found a 

large mushroom growing but did not notice any other problems apart from “a 

mildew smell.” Appellants’ App. Vol. II p. 19. However, Appellants claim that 

the next morning they discovered “a moldy smell” and “soft spots” in the floor 
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under the carpeting. Appellants’ App. Vol. II p. 19. A week or so later, Fetter 

inspected the trailer. She observed that the carpet and flooring felt soft but did 

not notice any smell or odor. Appellants subsequently determined that they 

were unable to use the trailer due to the damage.

[6] In January of 2016, Appellants filed suit against Appellees, alleging 

misrepresentation and breach of contract. A bench trial was held on July 31, 

2019, during which the parties offered competing expert testimony regarding 

the cause of the damage. On August 26, 2019, the trial court entered judgment 

in favor of Appellees. Appellants subsequently filed a motion to correct error, 

which was denied by the trial court on October 5, 2019. 

Discussion and Decision

[7] Initially, we note that Appellees have not filed an appellate brief. 

“When the appellee has failed to submit an answer brief we need 

not undertake the burden of developing an argument on the 

appellee’s behalf.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 

1068 (Ind. 2006). “Rather, we will reverse the trial court’s 

judgment if the appellant’s brief presents a case of prima facie 

error.” Id. (citing Gibson v. City of Indpls., 242 Ind. 447, 448, 179 

N.E.2d 291, 292 (1962)). “Prima facie error in this context is 

defined as, ‘at first sight, on first appearance, or on the face of 

it.’” Id. (citing Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. 

App. 1999)). “Where an appellant is unable to meet this burden, 

we will affirm.” Id.

Fifth Third Bank v. PNC Bank, 885 N.E.2d 52, 54 (Ind. Ct. App. 2008).
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[8] Appellants indicate that the trial court’s factual findings and conclusions 

thereon were entered sua sponte. In such cases, “‘the findings control our review 

and the judgment only as to the issues those specific findings cover. Where 

there are no specific findings, a general judgment standard applies and we may 

affirm on any legal theory supported by the evidence adduced at trial.’” Estate 

of Henry v. Woods, 77 N.E.3d 1200, 1204 (Ind. Ct. App. 2017) (quoting Samples 

v. Wilson, 12 N.E.3d 946, 949–50 (Ind. Ct. App. 2014)).

We apply a two-tier standard of review to the sua sponte findings 

and conclusions. [Samples, 12 N.E.3d] at 950. First, we 

determine whether the evidence supports the findings and 

second, whether the findings support the judgment. Id. We will 

set aside findings and conclusions only if they are clearly 

erroneous, that is, when the record contains no facts or inferences 

supporting them. Id. In conducting our review, we consider only 

the evidence favorable to the judgment and all reasonable 

inferences flowing therefrom. Id. We do not reweigh the 

evidence nor do we assess witness credibility. Id.

Id.

[9] Further, because Appellants did not prevail at trial, they appeal from a negative

judgment. 

A judgment entered against a party who bore the burden of proof 

at trial is a negative judgment. Garling v. Ind. Dep't of Natural Res.,

766 N.E.2d 409, 411 (Ind. Ct. App. 2002). On appeal, we will 

not reverse a negative judgment unless it is contrary to law. 

Mominee v. King, 629 N.E.2d 1280, 1282 (Ind. Ct. App. 1994). 

To determine whether a judgment is contrary to law, we consider 

the evidence in the light most favorable to the appellee, together 
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with all the reasonable inferences to be drawn therefrom. J.W. v. 

Hendricks Cnty. Office of Family & Children, 697 N.E.2d 480, 482 

(Ind. Ct. App. 1998). A party appealing from a negative

judgment must show that the evidence points unerringly to a 

conclusion different than that reached by the trial court. 

Mominee, 629 N.E.2d at 1282.

Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977 N.E.2d 1, 4 (Ind. Ct. App. 

2012).

I. Misrepresentation

[10] Appellants contend that the trial court erred in finding that they failed to prove 

their claim of misrepresentation. We note that while Appellants’ appellate brief 

presents their misrepresentation claim as a claim of negligent misrepresentation, 

both the trial court’s judgment and Appellants’ trial brief treat the 

misrepresentation claim as one of fraudulent misrepresentation. Given that 

Appellants and the trial court treated the misrepresentation claim as a claim of 

fraudulent misrepresentation at the trial-court level, we will treat the claim as 

such on appeal. 

[11] [T]o establish a cause of action for fraudulent misrepresentation 

Buyer must demonstrate: (1) Sellers made false statements of 

past or existing material facts; (2) Sellers made such statements 

knowing them to be false or made them recklessly without 

knowledge as to their truth or falsity; (3) Sellers made the 

statements to induce Buyer to act upon them; (4) Buyer 

justifiably relied and acted upon the statements; and, (5) Buyer 

suffered injury.
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Verrall v. Machura, 810 N.E.2d 1159, 1162 (Ind. Ct. App. 2004). In entering 

judgment in favor of Appellees, the trial court determined that while Appellants 

successfully proved the first, third, fourth, and fifth elements, Appellants failed 

to prove the second element, i.e., that Appellees made the statements regarding 

the condition of the trailer “knowing them to be false or made them recklessly 

without knowledge as to their truth of falsity.” Id. Appellants assert that this 

determination is clearly erroneous. We disagree.

[12] With respect to the second element, the trial court reached the following 

conclusion:

Now turning to the second and dispositive element concerning 

whether [Appellees’] statements were made by them knowing 

them to be false or recklessly without knowledge as to their truth 

or falsity. Put differently, it is not enough for [Appellants] to 

establish that the leak had be going on for a long time prior to the 

sale. They must prove that [Appellees] had actual knowledge or 

should have had knowledge of the damage at the time of the 

representations.

Based upon the record presented to the Court, it cannot conclude 

that [Appellants] established by a preponderance standard; that 

[Appellees] had actual knowledge of the structural problems with 

the trailer at the time they sold the trailer to [Appellants]. There 

was no evidence presented by [Appellants] to show that 

[Appellees’] denials of any knowledge of leaks prior to the sale 

was intentionally or recklessly made. Jason Silvey testified 

emphatically that he never observed any evidence of any leaks; 

nor repaired any stains or other damage by water. No evidence 

of prior repairs, or prior damage was tendered. [Appellants’] 

expert witness acknowledged that even if the damage had 

occurred over a long period of time, the evidence of that damage 
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can appear over a short period of time if the conditions are right.

Failing the establishment of actual knowledge, the burden of 

proof was upon [Appellants] to alternatively establish that 

[Appellees] should have known of the existence of leaks or 

damage to the trailer; or that their statements were recklessly 

made. The Court finds that [Appellants] did not present 

sufficient direct or circumstantial evidence to meet this burden 

concerning the pre-sale condition of the trailer. No eyewitnesses, 

photographs, documentation ever were presented to prove to the 

Court that [Appellees] had prior knowledge that the existence of 

a leak or damage was present. Further, the only visible damage 

other than the mushroom in the slide out was that damage [that] 

was visible after the carpet was pulled up. There was no 

evidence that [Appellees] ever had reason to pull up or replace 

carpet or that the mushroom which was found growing, was 

present at the time [Appellees’] closed the trailer for the fall of 

2014.

The absence of evidence that [Appellees] knew or ought to have 

known of the damage to the floor of the camper or the 

mushroom is fatal to [Appellants’] ability to prevail under a 

theory of fraud.

Appellants’ App. Vol. II pp. 22–23. Again, Appellants bore the burden to prove 

that the evidence points “unerringly to a conclusion different than that reached 

by the trial court.” Smith, 977 N.E.2d at 4. Appellants have failed to carry this 

burden. As such, based on the limited record presented on appeal, we cannot 

say that the trial court’s conclusions are clearly erroneous. 
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II. Breach of Contract

[13] Appellants also contend that the trial court erred by failing to rule on their 

breach-of-contract claim. Specifically, Appellants argue that their trial brief 

“addressed only one of the two causes of action raised in their Complaint, i.e. 

breach of contract.... Despite [Appellants’] focus on the breach of contract 

claim, the trial court’s Judgement in favor of [Appellees] does not mention the 

breach of contract claim.” Appellants’ Br. p. 12. Appellants’ trial brief, 

however, did not address a breach-of-contract claim but rather included a 

detailed discussion of a prior decision involving a breach-of-warranty claim. 

Appellants’ App. Vol. II pp. 30–34 (discussing Art Hill, Inc. v. Heckler, 457 

N.E.2d 242 (Ind. Ct. App. 1983)). We have previously noted that “[a]lthough 

closely related, the two actions are not identical.” Nelson v. Marchand, 691 

N.E.2d 1264, 1271 n.8 (Ind. Ct. App. 1998). As such, we cannot agree with 

Appellants’ assertion that their trial brief addressed their breach-of-contract 

claim.

[14] Further, as is noted above in footnote 1, the parties did not provide us with a 

copy of the transcript of the bench trial. Thus, while Appellants’ complaint for 

damages includes a breach-of-contract claim, we are unable to determine from 

the record presented on appeal whether Appellants fully developed this claim 

before the trial court. Without some indication from the record that Appellants 
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did develop the breach-of-contract claim, we are unable to conclude that the 

trial court erred by failing to include a ruling on this claim in its judgment.2

[15] The judgment of the trial court is affirmed.

Robb, J., and Altice, J., concur. 

2

 Furthermore, we do not agree with Appellants’ assertion that the trial court’s factual findings “establish 

[Appellees’] liability for breach of contract.” Appellants’ Br. p. 8.