Court of Appeals of Indiana | Opinion 18A

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A TTORNEY S FOR A PPELLANT S John R. Hurley Joanne McAnlis Michael Mahoney McAnlis Law Group, P.C. Indianapolis , Indiana A TTORNEY FOR A PPELLEE John D. Cross Mercer Belanger, P.C. Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Brian Dunlap and Lauren Dunlap , Appellant s - Plaintiffs

- Counterclaim Defendants

,

v. 

### Shirlena Lange , Appellee

- Defendant

- Counterclaim Plaintiff. November 2, 2018 Court of Appeals Ca se No. 18A

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- 1212 Appeal from the Marion Superior Court The Hon. Thomas J. Carroll , Judge Trial Court Cause No. 49D06

- 1607

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- 26355



### Bradford , Judge
.Court of Appeals of Indiana | Opinion 18A

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- 1212 | November 2, 2018 Page 2 of 5 

# Case Summary

[1] In 2016, Shirlena Lange contracted with Brian and Laura Dunlap to purchase their Marion County house, but the sale was never closed. The Dunlaps later sold the house to another buyer and sued Lange for breach of contact. The Dunlaps attached the purchase agreement they and Lange executed (“the Purchase Agreement”) to their complaint. The trial court issued a pretrial order in which it required all exhibits to be exchanged one week before trial

. The Dunlaps did not exchange the Purchase Agreement as an exhibit. The trial court excluded the Pu rchase Agreement as a sanction for violating its pretrial order and then entered judgment on the evidence in favor of Lange on the basis that the Dunlaps could not prove their case without the Purchase Agreement. The Dunlaps contend that the trial court i mproperly excluded the Purchase Agreement. Because we conclude that the Purchase Agreement was deemed admitted into evidence by virtue of its attachment to the Dunlaps’ complaint ,

w e reverse and remand for further proceedings

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# Facts and Procedural Histo ry

[2] On or about March 7, 2016, Lange entered into the Purchase Agreement with the Dunlaps. On or about April 13, 2016, Lange requested a release from the Purchase Agreement and did not close on the previously

- agreed

- upon closing date of May 5, 2016. The D unlaps later sold the house to another buyer and sued Lange for breach of contract on August 17, 2016. The Dunlaps attached the Purchase Agreement to their complaint as Exhibit A. On September 2,Court of Appeals of Indiana | Opinion 18A

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2016, Lange answered the Dunlaps’ complaint and countercla imed for the return of her $1500 earnest money pursuant to the Purchase Agreement. On October 16, 2017, Lange amended her answer. Lange did not deny execution of the Purchase Agreement in either her answer or amended answer.

[3] On August 23, 2017, the trial court issued its pretrial order, in which it required the parties to exchange all proposed trial exhibits seven days before trial or they would be excluded. On December 19, 2017, an entry in the chronological case
summary again notifi ed the parties to exchange proposed exhibits prior to trial.
T he Dunlaps never exchange d exhibits with Lange prior to trial.

[4] On May 2, 2018, a bench trial was held, at the beginning of which the trial court excluded the Dunlaps’ proposed exhibits, including the Purcha se Agreement. During the Dunlaps’ case, Brian testified regarding the agreement with Lange, the circumstances under which Lange backed out of the sale, and that a later sale was made for a lower price. After the Dunlaps rested, Lange moved to dismiss the ir case pursuant to Indiana Rule of Trial Procedure 41(B) and to dismiss her counterclaim. Lange argued that the Indiana S tatute of
F rauds requires that any contract for the sale of land be evidence d by a writing, an argument that the trial court accepted , grant ing Lange’s motions and entering judgment in her favor

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# Discussion and DecisionCourt of Appeals of Indiana | Opinion 18A

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[5] The Dunlaps contend that the trial court erroneously entered a judgment on the evidence against them pursuant to Indiana Rule of Trial Procedure 41(B), which provides, in part, as follows:
After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has comple ted the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been sho wn no right to relief.
[6] In reviewing a motion for involuntary dismissal, this court does not reweigh the evidence or judge the credibility of the witnesses; rather we only consider the evidence most favorable to the verdict and the reasonable inferences the refrom. Chem. Waste Mgmt. of Ind., L.L.C. v. City of New Haven , 755 N.E.2d 624, 635 (Ind. Ct. App. 2001). We will reverse the trial court only if the trial court ’s judgment is clearly erroneous. TMC Transp., Inc. v. Maslanka , 744 N.E.2d 1052, 1055 (Ind. Ct. App. 2001), trans. denied

.

[7] The basis for the trial court’s judgment, i.e. , that the Dunlaps could not prove their case without the Purchase Agreement being in evidence, relies on the trial court’s earlier decision to exclude the Purchase Agreement f rom evidence. We conclude that this first decision, however, was clearly erroneous. Trial Rule 9.2(B) provides, in part, as follows:
When a pleading is founded on a written instrument and the instrument or a copy thereof is included in or filed with the pleading, execution of such instrument, indorsement, or assignment shall be deemed to be established and the instrument,Court of Appeals of Indiana | Opinion 18A

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if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit filed therewith.
[8] Here, t he Dunlaps’ pleading was found ed on the Purchase Agreement, which they attached to their complaint and the execution of which Lange has never denied. Consequently, the Purcha se Agreement was deemed admitted into evidence by operation of Trial Rule 9.2(B), with no other action by the Dunlaps required. Lange contends (without citation to authority) that the Purchase Agreement was not “otherwise admissible” because the trial cou rt excluded it

. T he trial co urt , however, did not actually conclude that the Purchase Agreement was in admissible pursuant to the Indiana Rules of Evidence , it excluded it as a sanction for the Dunlaps’ violation of its pretrial order

. The Dunlaps offer n o other reason why the Purchase Agreement might not be admissible, and we can think of none. While we do not condone noncompliance with pretrial orders, we conclude that the trial court’s stated reason for excluding the Purchase Agreement was not sufficie nt to avoid operation of Trial Rule 9.2(B)

. B ecause the exclusion of the Purchase Agreement was the sole basis for the entry of judgment on the evidence in favor of Lange, we reverse the judgment of the trial court and remand for further proceedings consi ste nt with this opinion

.

[9] The judgment of the trial court is reversed and we remand with instructions

. Bailey, J., and Mathias, J., concur.