                                                              FILED
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              Jan 18 2012, 8:51 am
judicata, collateral estoppel, or the law of the
case.                                                              CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANTS:                           ATTORNEY FOR APPELLEE:

JOHN J. JEWELL                                     MARILYN R. RATLIFF
Trimble & Jewell                                   Evansville, Indiana
Evansville, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

STEVEN D. STOCKER and                              )
NANCY J. STOCKER,                                  )
                                                   )
       Appellants-Defendants,                      )
                                                   )
              vs.                                  )    No. 82A01-1106-MF-244
                                                   )
CONNIE L. SCHNAPF, as Trustee of TRUST B           )
ESTABLISHED UNDER THE THOMAS M.                    )
CRANE PRIMARY TRUST AGREEMENT                      )
DATED NOVEMBER 12, 1992,                           )
                                                   )
       Appellee-Plaintiff.                         )


                APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                       The Honorable Mary Margaret Lloyd, Judge
                           Cause No. 82D03-1010-MF-6036


                                     JANUARY 18, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                             STATEMENT OF THE CASE

      Defendants-Appellants Steven D. Stocker and Nancy J. Stocker (“the Stockers”)

appeal the trial court’s judgment in favor of Plaintiff-Appellee Connie L. Schnapf, as

Trustee of Trust B Established Under the Thomas M. Crane Primary Trust Agreement

Dated November 12, 1992 (“Schnapf”). We affirm.

                                        ISSUES

      The Stockers raise four issues, which we consolidate and restate as:

      I.     Whether the trial court erred by entering summary judgment against the
             Stockers as to their liability under a promissory note and mortgage.

      II.    Whether the trial court erred in the course of awarding damages to Schnapf.

                       FACTS AND PROCEDURAL HISTORY

      In 1990, Steven D. Stocker executed a promissory note to Thomas M. Crane

(“Thomas”) in the amount of $45,749.27. The note was secured by a mortgage, executed

by the Stockers, on several parcels of real estate in Vanderburgh County. The note was

to have been paid in full by December 15, 2000.

      Thomas died in 1999. Subsequently, his interest in the note and mortgage were

transferred to Schnapf, in her capacity as trustee. At some point after Thomas’ death, his

son, Terry Crane (“Terry”), found the note and mortgage in Thomas’ papers. Terry

determined that the Stockers stopped making payments on the note after 1996 or 1997.

Subsequently, Schnapf filed suit against the Stockers seeking payment for the value of

the note, plus interest. Schnapf also sought to foreclose upon the mortgage.




                                            2
       The parties filed cross-motions for summary judgment. The trial court denied the

Stockers’ motion and granted Schnapf’s motion, determining that the note and mortgage

were valid and enforceable. In addition, the trial court scheduled an evidentiary hearing

to determine the amount the Stockers owed Schnapf under the note. After the hearing,

the trial court entered judgment in favor of Schnapf in the amount of $63,621.66. The

trial court further ordered the sale of the parcels that are the subject of the mortgage. This

appeal followed.

                             DISCUSSION AND DECISION

 I. GRANT OF SUMMARY JUDGMENT IN FAVOR OF SCHNAPF ON LIABILITY

       The Stockers argue that Schnapf’s claim for payment under the note and mortgage

is barred by the doctrine of laches. Thus, the Stockers contend that they are entitled to

summary judgment on the question of liability.

       We note that the Stockers failed to include any documents from the summary

judgment proceedings in their Appellants’ Appendix. In Hughes v. King, 808 N.E.2d

146, 147 (Ind. Ct. App. 2004), Hughes appealed the trial court’s grant of summary

judgment in favor of King, but he included only the trial court’s summary judgment

ruling in his Appellant’s Appendix. In the absence of designated evidence, the Court had

no basis to review the trial court’s summary judgment ruling and dismissed Hughes’

appeal.

       In the current case, as in Hughes, the Stockers’ Appellants’ Appendix provides no

basis to review the trial court’s summary judgment ruling. The Stockers failed to include

in their Appendix the parties’ designated evidence, the parties’ cross-motions for

                                              3
summary judgment, Schnapf’s response to the Stockers’ motion, and the trial court’s

ruling. We acknowledge that this Court prefers to decide cases upon the merits where

possible. Sneed v. Associated Group Ins., 663 N.E.2d 789, 796 (Ind. Ct. App. 1996).

Furthermore, any party’s failure to include any item in an Appendix shall not waive any

issue or argument.       Ind. Appellate Rule 49(B).          Nevertheless, despite these

considerations, it is not possible to address the merits of the trial court’s ruling without

the summary judgment documents.

       Schnapf has filed an Appellee’s Appendix that includes the trial court’s summary

judgment ruling and the Stockers’ motion for summary judgment, but not her response to

the Stockers’ motion. Without both parties’ designations of evidence and Schnapf’s

response, our review of the merits of the summary judgment ruling is impeded. See

Hughes, 808 N.E.2d at 148 (dismissing the appeal although the Appellee included some

summary judgment materials in an Appellee’s Appendix). Consequently, the Stockers

have failed to carry their burden of proof regarding the trial court’s grant of summary

judgment to Schnapf, and there is no basis for reversal.

                                II. DAMAGES AWARD

       Our review of a damages award is limited. Four Seasons Mfg., Inc. v. 1001

Coliseum, LLC, 870 N.E.2d 494, 507 (Ind. Ct. App. 2007). We do not reweigh the

evidence or judge the credibility of witnesses, and we will reverse an award only when it

is not within the scope of the evidence before the finder of fact. Id. A factfinder may not

award damages on the mere basis of conjecture and speculation. Indianapolis City Mkt.



                                             4
Corp. v. MAV, Inc., 915 N.E.2d 1013, 1024 (Ind. Ct. App. 2009). Instead, the award

must be supported by probative evidence. Four Seasons, 870 N.E.2d at 507.

       The Stockers argue that, with respect to damages, the trial court impermissibly

shifted the burden of proof from Schnapf to them. Specifically, the Stockers contend that

Schnapf failed to properly quantify her damages, and that the trial court required the

Stockers to prove a negative by producing payment records to refute Schnapf’s claim for

damages. Schnapf responds that the trial court did not shift the burden of proof but

merely required the Stockers to bear the burden of proof for their affirmative defense.

       In her complaint, Schnapf asserted that the Stockers had failed to make all

payments due under the terms of the note. Thus, Schnapf bore the burden of proving that

the Stockers were in debt to Schnapf and proving the amount due. When the trial court

scheduled a hearing on damages, it stated, “[Schnapf] may rely upon [evidence]

previously submitted . . . as to the amount due, without being required to present live

testimony, although [Schnapf] may do so if desired.” Appellee’s App. p. 19. Thus, the

trial court recognized that Schnapf, as the plaintiff, bore the burden of proving the

amount of damages owed.

       By contrast, a defendant bears the burden of pleading and proving the affirmative

defense of payment on a debt. See Ind. Trial Rule 8(C). In the summary judgment order,

the trial court noted that the Stockers asserted that they had located records “indicating

partial payment of this obligation.” Appellee’s App. p 18. The trial court ordered the

Stockers to produce to Schnapf “evidence of any payments made upon this obligation.”

Id. at 19. Thus, the trial court appropriately recognized that the Stockers bore the burden

                                             5
of proof on their affirmative defense. We find no error in the trial court’s identification

of the parties’ burdens of proof.

        Next, the Stockers argue that there is insufficient evidence to support the trial

court’s damage award, describing Schnapf’s evidence as “speculative.” Appellants’ Br.

p. 9.   Alternatively, the Stockers assert that, at best, Schnapf only proved nominal

damages. In this case, Schnapf initially alleged damages in the amount of $136,485.38,

which included the total amount due under the note, interest, attorney fees, and title

search charges. After the trial court granted summary judgment to Schnapf on liability,

the Stockers provided evidence of payments they had made to Thomas. After receiving

evidence of the payments, Terry recalculated the interest rate and the balance due. Terry

testified at the evidentiary hearing that based upon his calculations, the Stockers owed

$61,121.66 on the note.      This evidence is more than speculative.       Rather, Schnapf

presented probative evidence establishing the calculations used to determine the

outstanding balance. The trial court’s damage award of $63,621.66 (the amount due on

the note plus $2,500.00 in attorney’s fees) is within the scope of the evidence, and we

find no error. See Marathon Oil Co. v. Collins, 744 N.E.2d 474, 483 (Ind. Ct. App. 2001)

(affirming the trial court’s award of damages where the damages were supported by

calculations submitted by the plaintiff).

                                      CONCLUSION

        For the reasons stated above, we affirm the judgment of the trial court.

        Affirmed.

NAJAM, J., and BRADFORD, J., concur.

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