Court of Appeals of Indiana | Opinion 18A-PL-1212 | November 2, 2018 Page 1 of 5

ATTORNEYS FOR APPELLANTS

John R. Hurley

Joanne McAnlis

Michael Mahoney

McAnlis Law Group, P.C.

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

John D. Cross

Mercer Belanger, P.C.

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brian Dunlap and Lauren 

Dunlap,

Appellants-Plaintiffs-Counterclaim 

Defendants,

v.

Shirlena Lange,

Appellee-Defendant-Counterclaim 

Plaintiff. 

November 2, 2018 

Court of Appeals Case No.

18A-PL-1212

Appeal from the Marion Superior 

Court

The Hon. Thomas J. Carroll, 

Judge 

Trial Court Cause No. 

49D06-1607-PL-26355

Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-PL-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 Purchase 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 improperly 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, 

we reverse and remand for further proceedings. 

Facts and Procedural History

[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 Dunlaps 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-PL-1212 | November 2, 2018 Page 3 of 5

2016, Lange answered the Dunlaps’ complaint and counterclaimed 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 notified the parties to exchange proposed exhibits prior to trial. 

The Dunlaps never exchanged 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 Purchase 

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 their case pursuant to Indiana Rule of Trial Procedure 41(B) 

and to dismiss her counterclaim. Lange argued that the Indiana Statute of 

Frauds requires that any contract for the sale of land be evidenced by a writing, 

an argument that the trial court accepted, granting Lange’s motions and 

entering judgment in her favor. 

Discussion and Decision
Court of Appeals of Indiana | Opinion 18A-PL-1212 | November 2, 2018 Page 4 of 5

[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 

completed 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 

shown 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 therefrom. 

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 from 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-PL-1212 | November 2, 2018 Page 5 of 5

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, the Dunlaps’ pleading was founded on the Purchase Agreement, which 

they attached to their complaint and the execution of which Lange has never 

denied. Consequently, the Purchase 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 court excluded it. 

The trial court, however, did not actually conclude that the Purchase 

Agreement was inadmissible pursuant to the Indiana Rules of Evidence, it 

excluded it as a sanction for the Dunlaps’ violation of its pretrial order. The 

Dunlaps offer no 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 sufficient to avoid 

operation of Trial Rule 9.2(B). Because 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 consistent with this opinion. 

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

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