                                                                                              Oct 22 2015, 9:37 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Kristin R. Fox                                            Lily M. Schaefer
      Fox Law Firm                                              Chad W. Nally
      Mishawaka, Indiana                                        Genetos Retson & Yoon LLP
                                                                Merrillville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Eric Brazier d/b/a Brazier                                October 22, 2015
      Painting,                                                 Court of Appeals Case No.
      Appellant-Plaintiff,                                      71A04-1406-CC-278
                                                                Appeal from the St. Joseph
              v.                                                Superior Court
                                                                The Honorable Jenny Pitts Manier,
      Maple Lane Apartments I, LLC,                             Judge
      Appellee-Defendant                                        Trial Court Cause No.
                                                                71D05-1105-CC-375



      Robb, Judge.



                                Case Summary and Issues
[1]   Eric Brazier sued Maple Lane Apartments I, LLC (“Maple Lane”), claiming he

      had performed over $60,000 in painting services at Maple Lane’s request for

      which he had not been paid. Following a five-day bench trial, the trial court

      entered judgment in favor of Maple Lane and imposed sanctions against

      Brazier’s counsel in the amount of $5,000 toward Maple Lane’s attorney fees.

      Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015             Page 1 of 26
      Brazier now appeals, raising several issues for our review, which we have

      restated as: 1) whether the trial court erred in denying his motion for summary

      judgment; 2) whether the trial court erred in its evidentiary ruling on certain

      exhibits proffered by Brazier; 3) whether the trial court’s judgment is clearly

      erroneous; and 4) whether the trial court erred in imposing sanctions.

      Concluding there was no error in any respect, we affirm.



                             Facts and Procedural History
[2]   Maple Lane consists of 396 apartments in 100 buildings and a clubhouse in

      South Bend, Indiana. Sometime prior to 2006, Maple Lane hired Brazier to do

      interior painting work at the complex on an as-needed basis. Sue Papaj, who

      became Maple Lane’s property manager in 2006, was Brazier’s primary

      contact. She would apprise Brazier of vacant apartments, and he would paint

      the interior for approximately $160 per apartment. In addition, Papaj

      occasionally sought permission from her boss for Brazier to perform “extra

      work,” which included such things as cleaning gutters, painting common areas,

      and exterior painting. Transcript at 58. In 2009, Brazier was asked to repair

      and paint the wood around two bay windows on the clubhouse and to paint the

      picture windows, the common door frame, and the apartment numbers on

      seven buildings on Norway Maple Court. He was then asked to paint the

      exterior windows on a few other buildings that were in bad condition

      (collectively, the “Clubhouse Project”).




      Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 2 of 26
[3]   Typically, Brazier would handwrite invoices for the work he did and submit

      them to Papaj within two weeks of completing the work. The date on the

      invoice would reflect the date he turned the invoice in rather than the date he

      did the work. Brazier did not keep copies of the invoices he submitted to Maple

      Lane. Papaj reviewed the invoices, initialed them to indicate payment should

      be made, and sent them to Maple Lane’s corporate office in Chicago for

      payment. Checks were sent directly to Brazier.


[4]   In early 2010, Maple Lane instructed Papaj to stop using Brazier’s services.

      When Papaj called Brazier to let him know that his services would no longer be

      required, she told him to finish up what he was doing and bring her any unpaid

      invoices. Brazier delivered a few invoices to Papaj which she initialed and sent

      to Maple Lane. Papaj believed Brazier had submitted, and she had initialed,

      invoices totaling approximately $3,200 that Maple Lane ultimately did not pay.

      At the end of March or beginning of April, Brazier brought approximately 100

      invoices to Papaj for exterior work he claimed to have done on every building

      in the complex, charging between $525 and $550 for each building (the “Bay

      Window Project”). He indicated he started this project in 2008 or 2009; Papaj

      claimed Brazier was never asked to, and in fact did not do, this work. Papaj did

      not initial the invoices, but she did send them on to Maple Lane.


[5]   On May 12, 2011, Brazier filed a Verified Complaint on Account against Maple

      Lane, seeking payment of $63,995. Attached to the complaint was a summary

      of Brazier’s invoices to Maple Lane from December 2008 to April 2010,

      showing the invoice number, amount, and whether it had been paid. Also

      Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 3 of 26
      attached to the complaint were 114 allegedly unpaid invoices dated from June

      1, 2009 to April 30, 2010, including ninety-nine invoices all dated April 30,

      2010, for the Bay Window Project. Appellant’s Appendix at 36-61. Maple

      Lane filed its answer on July 13, 2011.


[6]   Brazier filed a motion for partial summary judgment contending, in part, Maple

      Lane’s answer was a judicial admission that the invoices for the Bay Window

      Project were due and owing. Following a hearing, the trial court denied the

      motion:

              [Brazier] too narrowly construes [Maple Lane’s] Answer as an
              acknowledgement by [Maple Lane]—a judicial admission as is
              claimed by [Brazier]—that [Brazier’s] invoices are accurate and
              that the work described in each invoice was actually performed.
              [Brazier] takes an inartfully drafted answer and construes it too
              readily as an admission. . . .
              ***
              Beyond that fact, [Brazier] has failed to show the absence of a
              genuine issue of fact. It appears clear that many of the numerous
              invoices, including what would appear to be most if not all of the
              invoices dated April 30, 2010, appear to be the same invoice,
              reproduced over 100 times, differing only by the apartment
              building or unit at which services were alleged to have been
              provided. There are numerous inferences that may be drawn
              from this evidence, including inferences that would stand to
              defeat [Brazier’s] claim. Thus, [Maple Lane] is not obligated to
              come forth with evidence to defeat [Brazier’s] Motion.
              Nonetheless, the evidence designated by [Maple Lane] is
              sufficient to raise a question of fact concerning [Brazier’s] billing.


      Id. at 9-10.



      Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 4 of 26
[7]   During the discovery process, Maple Lane filed a motion to compel discovery

      and for sanctions against Brazier. The trial court did not rule on the motion

      before trial. Throughout the litigation, Brazier and his counsel referred to the

      invoices attached to the complaint as “copies” of the invoices he had submitted

      to Papaj and Maple Lane. It was determined for the first time at trial, however,

      that the “copies” were actually created by Brazier for the purpose of litigation

      after consulting with counsel. Maple Lane renewed and supplemented its

      motion for sanctions during trial.


[8]   At the request of the parties, the trial court issued findings of fact and

      conclusions thereon after the conclusion of the trial. In large part, the trial

      court’s findings came down to a credibility call, as the trial court noted the main

      witnesses—Brazier and Papaj—gave testimony that was “often and grossly

      wholly contradictory and irreconcilable. Effectively, each was testifying that

      the other was lying.” Id. at 16. Ultimately, the trial court determined there

      were numerous issues with respect to Brazier’s credibility—including his

      “poorly organized and almost wholly idiosyncratic” recordkeeping, id. at 13,

      his poor memory of events, and irregularities with regard to the timing and

      amount of the Bay Window Project invoices—and further determined “Papaj

      was a credible witness.” Id. at 16. The trial court concluded “Brazier has not

      proven by a preponderance of the evidence that he was authorized to perform

      or that he even did perform the Bay Window Project. The Court concludes that

      this work was not authorized (beyond the Clubhouse Project) and was not

      performed.” Id. at 20. Accordingly, the trial court entered judgment for Maple


      Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 5 of 26
       Lane and against Brazier on Brazier’s complaint. The trial court also

       determined that sanctions against Brazier and/or his counsel were appropriate,

       but held an order on such sanctions under advisement until Maple Lane had an

       opportunity to submit an affidavit of attorney fees and an “explanation of the

       sanctions it believes the Court should consider.” Id. at 22.


[9]    Following the entry of judgment against him, Brazier filed a motion to

       reconsider and motion to correct error. Pursuant to the court’s order, Maple

       Lane filed an explanation of the sanctions it deemed appropriate, seeking

       attorney fees incurred from the time of Brazier’s motion for summary judgment

       through trial and additional sanctions against Brazier’s counsel for violations of

       Trial Rule 11(A). In a single order, the trial court denied Brazier’s motion to

       reconsider and motion to correct error and imposed a sanction against Brazier’s

       counsel of $5,000, “which amount will alleviate only a modest amount of the

       expense incurred by [Maple Lane] as a result of the conduct and lack of candor

       of [Brazier’s] counsel.” Id. at 26. Brazier now appeals.



                                    Discussion and Decision
                                            I. Brief of Appellant
[10]   At the outset, we must note several significant deficiencies in the “Corrected”

       Brief Brazier filed with this court.1 Brazier initially filed his brief on December




       1
        We note two other deficiencies in the preparation of this appeal that hindered our review. First, despite the
       court reporter’s representation to this court in a motion for extension of time to file the transcript that there

       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015                           Page 6 of 26
19, 2014. The brief contained a one-page Table of Contents—showing three

headings under the Argument section all beginning on page 18—and a four-

page Table of Authorities. On December 31, 2014, Brazier filed a Motion to

File Corrected Brief to Correct Table of Contents and Table of Authorities. In

the motion, counsel alleged she had been unable to complete the brief even after

two extensions of time “due to the length of time to review and cite to the

voluminous transcript, exhibits, and post-trial filings of the numerous and

complex issues on appeal,” but had nonetheless filed a brief by the date ordered.

She noted the Table of Contents and Table of Authorities in the brief “provide

citations to incorrect page numbers and the correct authorities are not listed in

alphabetical order.” Therefore, she requested leave to file “a corrected

Appellant’s Brief limited to the Table of Contents and Table of Authorities in

order to provide the correct page numbers and correct authorities in alphabetical order.

Brazier will make no changes to other parts of the Brief.” (Emphasis added.)

This court granted Brazier’s motion, directing him to file an Amended

Appellant’s Brief “in order to correct the Table of Contents and Table of

Authorities . . . . No substantive changes shall be made to the Amended Appellant’s

Brief.” (Emphasis added.) Brazier timely filed his Corrected Brief of Appellant

on March 2, 2015.




were 750 pages of exhibits to be copied and bound, the materials transmitted to this court did not include
exhibit volumes, nor does our docket reflect that exhibit volumes were tendered. See Ind. Appellate Rule
29(A). Brazier included in his appendix some, but not all, of the exhibits. Second, the court reporter is to
prepare a separately bound table of contents for the transcript. See App. R. 28(A)(8). Our file contains no
such table of contents for the three-volume, 760-page transcript.

Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015                         Page 7 of 26
[11]   Appellate Rule 46(A) requires the following sections to appear in an appellant’s

       brief:


                (1) Table of Contents. The table of contents shall list each section
                of the brief, including the headings and subheadings of each
                section and the page on which they begin.
                (2) Table of Authorities. The table of authorities shall list each
                case, statute, rule, and other authority cited in the brief, with
                references to each page on which it is cited. The authorities shall
                be listed alphabetically or numerically, as applicable.


[12]   Although Brazier’s corrected brief does indeed include these sections, the Table

       of Contents is now thirty-seven pages long, followed by an eleven-page Table of

       Authorities. To illustrate how such lengthy tables are possible—despite the

       substantive portion of the brief being only forty-three pages—we have randomly

       selected an entry from the corrected Table of Contents, which appears under the

       “Argument” section:


                I. The trial Ct. improperly relied on Papaj’s and Cory’s mere
                “belief” (improper hearsay under Ind. Evidence Rule 801 and
                802) that Brazier had already been paid for the invoices and the
                balance of the Account Stated as neither Papaj nor Corey had
                personal knowledge or any documentary evidence that the
                subject invoices making up the account stated were actually paid
                as, pursuant to Ind. Trial Rule 8(C), [Maple Lane] had the
                “burden of proving . . . payment” to Brazier of each of the
                unpaid invoices of Brazier’s Account Stated and [Maple Lane’s]
                required burden of proof of payment “is subject to the rules of
                evidence” [appearing on pages] 8-16, 24-6, 27, 28, 29, 31, 35, 37,
                39




       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 8 of 26
[13]   This is neither a proper heading, nor is it a heading appearing on any of the

       pages listed. In fact, the Argument section of the brief, which does not even

       begin until page 16, includes no headings or subheadings at all, despite the

       corrected Table of Contents listing headings A through ZZ, with multiple

       subheadings (and some sub-subheadings) under most headings. To the extent

       the Table of Contents makes sense at all, it represents, at best, an abject failure

       to understand the most basic requirements of appellate briefing. At worst, it is a

       blatant attempt to make additional argument without complying with the page

       and word limitations of a brief, see App. R. 44 (excluding the table of contents

       from the page and word length limits therein), and is in direct contravention of

       this court’s order that Brazier make no substantive changes to the brief.


[14]   The Table of Authorities is not as egregious, but nonetheless fails to comply

       with the rule and this court’s order. It includes, for instance, the following:


                Hirsch v. Merchants Nat’l Bank & Trust Co. of Indiana, 336 N.E.2d
                833 (Ind. Ct. App. 1975) (providing eight percent interest in
                action for breach of lease). When the parties’ contract does not
                provide an interest rate; therefore, the statutory interest rate of
                eight percent is applicable. (cited in App. 75-76) [appearing on
                page] 12


       Corrected Brief of Appellant at iii-iv. 2




       2
        Although it is inappropriate to provide a record cite in the Table of Authorities, we must note this entire
       passage from the Table of Authorities actually appears on page 77 of the Appellant’s Appendix as part of
       Brazier’s proposed order granting partial summary judgment, which the trial court did not sign.

       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015                         Page 9 of 26
[15]   First of all, a Table of Authorities should simply be a list of cases, statutes and

       other authorities relied on in the brief, presented without further comment.

       Again, this appears to be an attempt to circumvent the page and word length

       limitations imposed by the rules and make additional substantive argument in

       violation of this court’s order. Moreover, no case citations let alone Hirsch,

       appear on page 12 of the brief (which is, in fact, appropriate because page 12 is

       part of the Statement of the Facts, which should not include argument), nor is

       any reference to interest made on that page. And our review of the brief does

       not find Hirsch cited at all.3 Thus, the Table of Authorities fails at its basic and

       only purpose of informing us of the cases cited in the brief and directing us to

       where in the brief a particular case is discussed.


[16]   None of this is within the letter or spirit of Appellate Rule 46(A), and we have

       therefore disregarded everything contained in the Table of Contents and Table

       of Authorities. What we cannot as easily disregard in our consideration of this




       3
         In fact, Hirsch also does not appear in the Table of Authorities in the originally filed brief; neither do fifty-
       nine other cases listed in the corrected Table of Authorities. Forty-three of the newly included cases are
       allegedly cited on pages 14 and 22 of the brief, but in fact are not cited in the brief at all (no case cites appear
       on page 14 and only two case cites appear on page 22, neither of which are any of these cases). Instead, each
       of those forty-three cases are “cited in App. 537-597,” Corrected Br. of Appellant at i-vii, which is Brazier’s
       proposed findings of fact and conclusions of law. Again, it is inappropriate to provide a record cite in the
       Table of Authorities. Pages 14 and 22 of the brief mention, in passing, Brazier’s proposed findings and
       conclusions. To the extent Brazier was trying by these references to incorporate argument in the form of the
       version of the findings and conclusions that he advanced, we note first that the trial court rejected his
       proposed findings, and second that a party may not present argument by incorporating by reference from a
       source outside the brief. Pluard v. Patients Comp. Fund, 705 N.E.2d 1035, 1037-38 (Ind. Ct. App. 1999), trans.
       denied.



       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015                            Page 10 of 26
       appeal, however, are the deficiencies in Brazier’s Argument section. Appellate

       Rule 46(A) states the following with respect to the Argument:


               (8) Argument. This section shall contain the appellant's
               contentions why the trial court or Administrative Agency
               committed reversible error.
               (a) The argument must contain the contentions of the appellant
               on the issues presented, supported by cogent reasoning. Each
               contention must be supported by citations to the authorities,
               statutes, and the Appendix or parts of the Record on Appeal
               relied on, in accordance with Rule 22.
               ***
               (c) Each argument shall have an argument heading. If
               substantially the same issue is raised by more than one asserted
               error, they may be grouped and supported by one argument.


[17]   As noted above, despite the numerous “headings and subheadings” shown in

       the Table of Contents, Brazier’s Argument section—which, incidentally, is not

       itself labeled as such, and is distinguished from the Summary of Argument

       section only by the heading “Standard of Review”—contains no headings or

       subheadings. Not only are headings required by the rule, but they may have

       helped to focus Brazier’s argument, which lacks the cogent reasoning also

       required by the rule. For instance, on two consecutive pages of the brief,

       essentially the same sentence appears four times. Corrected Br. of Appellant at

       19-20. The content of two pages of the brief are replicated in whole several

       pages later. Id. at 25-27, 29-31. It appears arguments made in trial court filings

       may have been copied and pasted into the brief, leading to nonsensical

       statements such as “[t]his Court erred by failing to take mandatory judicial notice

       of the judicial admissions made in [Maple Lane’s] Answer” and “[t]his Court
       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 11 of 26
       erred by failing to follow Indiana law[,]” id. at 21-22 (emphasis added), when

       this court has yet to do anything. What has most hindered our review, however,

       is that there is no rhyme or reason to the manner in which Brazier has presented

       his argument. Rather than clearly stating an issue and discussing it to

       conclusion, discussion of all the issues is intermixed throughout.


[18]   A party waives any issue for which it fails to provide argument and authority.

       Westervelt v. Woodcock, 15 N.E.3d 75, 76 n.1 (Ind. Ct. App. 2014). We do not

       have to consider an issue that is “too poorly developed or expressed to be

       understood.” Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct.

       App. 2014), trans. denied, cert. denied, 2015 WL 4505132 (2015). However, we

       prefer to decide appeals on their merits when possible. Omni Ins. Grp. v. Poage,

       966 N.E.2d 750, 753 (Ind. Ct. App. 2012), trans. denied. With the assistance of

       Maple Lane’s distillation of the issues in its brief, we will address the merits of

       the arguments we can discern. Any issue not explicitly addressed herein is

       waived for failure to make a cogent argument.4




       4
        Counsel’s failures to follow even the simplest rules regarding the content of an appellate brief have made
       our review of this case unnecessarily difficult. We commend Maple Lane for largely refraining from
       comment on the quality of the brief and endeavoring to respond to the legal arguments. Were it within our
       purview to do so, we would order Brazier’s counsel to verify to this court her attendance at a continuing legal
       education program regarding appellate practice before submitting any further briefs to this court. Although it
       would be within our purview to order counsel to show cause why she should not be held in contempt for
       willful violation of this court’s order granting leave to amend the brief to correct technical errors only and
       specifically prohibiting any substantive changes, counsel does not appear to frequently represent clients on
       appeal nor has she been previously cited for poor briefing practices. Therefore, we have chosen not to take
       such extreme measures at this juncture. Nonetheless, we admonish counsel in the strongest possible terms to
       carefully review the appellate rules and fully conform her briefs to their requirements in the future.

       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015                       Page 12 of 26
                           II. Motion for Summary Judgment
[19]   When reviewing a trial court’s ruling on summary judgment, we apply the same

       standard as the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013).

       Summary judgment is appropriate where there is no genuine issue of material

       fact and the moving party is entitled to judgment as a matter of law. Ind. Trial

       Rule 56(C). The initial burden is on the movant to demonstrate the absence of

       a genuine issue of fact as to a determinative issue. Hughley v. State, 15 N.E.3d

       1000, 1003 (Ind. 2014). If the movant meets that burden, the burden shifts to

       the non-movant to come forward with contrary evidence showing an issue to be

       decided by the trier of fact. Id.


[20]   Our review is limited to facts designated to the trial court. Meredith v. Pence, 984

       N.E.2d 1213, 1218 (Ind. 2013). All factual inferences are made in favor of the

       non-moving party, and we resolve all doubts as to the existence of an issue of

       material fact against the moving party. Manley, 992 N.E.2d at 673. The

       appellant has the burden of demonstrating that the summary judgment ruling

       was erroneous. Amaya v. Brater, 981 N.E.2d 1235, 1239 (Ind. Ct. App. 2013),

       trans. denied.


[21]   The trial court denied Brazier’s motion for partial summary judgment upon

       finding Brazier failed to meet his burden of showing the absence of a genuine

       issue of material fact. Brazier contends the trial court erred in denying his

       motion for summary judgment because the trial court did not treat Maple

       Lane’s answer as a judicial admission that he was asked to perform the


       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 13 of 26
       contested work, did perform the contested work, and that the invoices attached

       to his complaint were accurate and the amounts reflected therein were owed.


[22]   A judicial admission “is an admission in a current pleading or made during the

       course of trial; it is conclusive upon the party making it and relieves the

       opposing party of the duty to present evidence on that issue.” Weinberger v.

       Boyer, 956 N.E.2d 1095, 1105 (Ind. Ct. App. 2011), trans. denied. “Statements

       contained in a party’s pleadings may be taken as true as against the party

       without further controversy or proof.” Lutz v. Erie Ins. Exch., 848 N.E.2d 675,

       678 (Ind. 2006). “Opposing parties prepare their case on the assumption that

       facts admitted by other parties require no proof. For this scheme to work

       properly, parties must be entitled to rely on trial courts to treat admissions in

       pleadings as binding on the party making the admission.” Id.


[23]   Brazier’s complaint—followed by Maple Lane’s corresponding answer—

       alleged, in pertinent part:

               [Complaint ¶] 4. Although [Maple Lane] has engaged [Brazier]
               to provide work, labor, and material to [Maple Lane] at [Maple
               Lane’s] Real Estate for a number of years, [Maple Lane]
               contracted for [Brazier] to provide work, labor, and material to
               [Maple Lane] at [Maple Lane’s] Real Estate from June 2009 to
               April 2010. A summary and copy of [Brazier’s] unpaid invoices
               are attached as group Exhibit A.


               [Answer ¶] 4. [Maple Lane] admits the allegation set forth in
               Rhetorical Paragraph 4 of [Brazier’s] Complaint; that it
               contracted with [Brazier] for work, labor and materials to be
               performed at [Maple Lane’s] real estate from June, 2009 to April,

       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 14 of 26
        2010; but denies the allegation set forth in Rhetorical Paragraph 4
        of [Brazier’s] Complaint that the invoices attached as group
        Exhibit A are unpaid.


        [Complaint ¶] 5. [Brazier] performed the contracted work,
        provided the contracted labor, and provided the contracted
        materials at [Maple Lane’s] Real Estate.


        [Answer ¶] 5. [Maple Lane] admits the allegations contained in
        Rhetorical Paragraph 5 of [Brazier’s] Complaint.


        [Complaint ¶] 6. [Brazier] delivered [Brazier’s] subject invoices
        to [Maple Lane] on or about the dates specified on each invoice.


        [Answer ¶] 6. [Maple Lane] admits the allegations contained in
        Rhetorical Paragraph 6 of [Brazier’s] Complaint.


        [Complaint ¶] 7. [Maple Lane] has failed to pay [Brazier’s]
        invoices in full.


        [Answer ¶] 7. [Maple Lane] denies the allegations contained in
        Rhetorical Paragraph 7 of [Brazier’s] Complaint.


        [Complaint ¶] 8. The delinquent balance due and owing by
        [Maple Lane] to [Brazier] is $63,995.00 as of April 2010.


        [Answer ¶] 8. [Maple Lane] denies the allegations contained in
        Rhetorical Paragraph 8 of [Brazier’s] Complaint.


        [Complaint ¶] 9. [Brazier] has demanded payment for the subject
        invoices and delinquent balance due from [Maple Lane] on
        several occasions, but [Maple Lane] has failed and/or refused to
        pay.

Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 15 of 26
               [Answer ¶] 9. [Maple Lane] admits the allegations contained in
               Rhetorical Paragraph 9 of [Brazier’s] Complaint and states that
               the invoices attached as group Exhibit A have been double billed.


       Appellant’s App. at 27-28 (Complaint), 62-63 (Answer).


[24]   Brazier reads Maple Lane’s answer to paragraphs 4 and 5 of his complaint to

       admit that Maple Lane contracted with Brazier to provide the work, labor, and

       material for the Bay Window Project and that he in fact performed the Bay

       Window Project. However, the complaint did not specifically allege Maple

       Lane contracted with Brazier to perform the Bay Window Project nor that

       Brazier performed the Bay Window Project. The complaint only alleges Maple

       Lane contracted with Brazier to perform work from June 2009 to April 2010 and

       that he did in fact perform the contracted work. The invoices attached to the

       complaint are not all for the Bay Window Project. There are also invoices for

       painting apartment interiors, cleaning gutters, and the Clubhouse Project. That

       Maple Lane admits it contracted with Brazier to perform work during those

       dates does not necessarily mean that it admits it contracted with Brazier to

       perform the Bay Window Project. Likewise, that Maple Lane admits Brazier

       performed the contracted work does not necessarily mean that it admits he

       performed the Bay Window Project. Thus, we agree with the trial court that

       Maple Lane’s answer does not constitute a judicial admission that Brazier was

       hired to and did in fact perform the Bay Window Project.


[25]   As for the invoices, Brazier contends Maple Lane’s answer is a judicial

       admission that “the invoices were valid, approved, and that [Maple Lane] was

       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 16 of 26
       liable for the subject invoices if they had not been paid.” Appellant’s Brief at

       23. We, like the trial court, do not read Maple Lane’s answer to judicially

       admit any such thing. Maple Lane admitted Brazier delivered invoices to it and

       demanded payment for what he believed the delinquent balance to be.

       However, Maple Lane denied that it has failed to pay Brazier in full for the

       work he performed at its request and that there is a delinquent balance in excess

       of $63,000. In short, as the trial court noted, Maple Lane’s answer may be

       “inartfully drafted,” Appellant’s App. at 9, but under no reasonable reading of

       Maple Lane’s answer—as a whole—can we say it operates as a judicial

       admission that all of the attached invoices represent work that was requested,

       performed, and approved for payment as billed.


[26]   Brazier designated as evidence in support of his motion for summary judgment

       his complaint, Maple Lane’s answer, and his counsel’s affidavit of attorney fees.

       Given that Maple Lane’s answer does not constitute a judicial admission that

       Brazier has met the elements of his claim, this evidence does not demonstrate

       the absence of a genuine issue of material fact as to the determinative issues of

       whether Brazier was asked to perform and did actually perform the Bay

       Window Project at the rate billed. Further, as the trial court noted, the invoices

       themselves raise questions of fact, given the irregularity of ninety-nine invoices

       all dated the same day and appearing to be reproductions of a single invoice.5




       5
         There actually appear to be two invoices – one billing $525 that is reproduced 75 times, Appellant’s App. at
       36-55, and one billing $550 (adding an additional $25 charge for painting the door of the building) that is
       reproduced 24 times, id. at 55-61.

       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015                       Page 17 of 26
       Finally, Maple Lane’s designated evidence in opposition to summary judgment

       directly contradicts Brazier’s contentions on the dispositive issue: Papaj’s

       affidavit states that “[b]ased upon [her] observation of the buildings and the

       activities of [Brazier’s] on-site employee, [Brazier] did not paint the bay

       windows and trim on the [sic] all the remaining 93 apartment buildings at

       Maple Lane Apartments.” Id. at 90.6 Brazier has failed to demonstrate that the

       trial court’s denial of his motion for summary judgment was erroneous.


                                  III. Admission of Evidence
[27]   The trial court declined to admit into evidence the approximately 100 invoices

       Brazier represented were “copies” of the invoices he submitted to Maple Lane

       for the Bay Window Project. These invoices represent the bulk of the work for

       which Brazier contends Maple Lane failed to pay him. Papaj testified that

       Brazier had indeed brought a stack of invoices to her for work he allegedly did

       on the windows of every building in the complex. However, it became clear

       during the course of trial that the invoices attached to the complaint and offered

       for admission at trial were not copies of those invoices Brazier had delivered to

       Maple Lane but were in fact created after his services were terminated, in

       anticipation of litigation, with the knowledge and assistance of his attorney.

       Brazier contends the trial court erred in denying admission of the invoices.




       6
        Brazier contends it was erroneous to consider this statement because no evidence may be considered which
       contradicts a judicial admission. Because there was no judicial admission, this statement was properly
       considered on summary judgment.

       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015                   Page 18 of 26
[28]   We review the trial court’s decision regarding admission of evidence for an

       abuse of discretion. Weinberger, 956 N.E.2d at 1104. The trial court abuses its

       discretion only when its decision is clearly against the logic and effect of the

       facts and circumstances before it. Johnson v. Wait, 947 N.E.2d 951, 962 (Ind.

       Ct. App. 2011), trans. denied. Even when the trial court erred in its ruling on the

       admissibility of evidence, we will reverse only if the error is inconsistent with

       substantial justice. Weinberger, 956 N.E.2d at 1104.


[29]   As the trial court noted during the trial, “in a case for payment on – for services

       rendered pursuant to an agreement, allegedly, with respect to the same, the

       existence of invoices is not an element – necessary element. . . . And since I

       believe the invoices, whatever their nature, are not an essential element, it does

       not obviate the claim or negate the claim if it’s proven otherwise.” Tr. at 483-

       84. Thus, even if the trial court erred in denying admission of the invoices, the

       ruling is not inconsistent with substantial justice. As Brazier testified at length

       about the Bay Window Project, he was still given the opportunity to prove his

       claim.7 Therefore, the trial court did not abuse its discretion in denying

       admission of the invoices themselves, especially considering the questionable

       provenance and import of the invoices.




       7
        Apparently, some of Brazier’s workers also testified about the Bay Window Project, but their testimony was
       not transcribed.

       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015                    Page 19 of 26
                                IV. Judgment for Maple Lane
[30]   The trial court entered findings of fact and conclusions thereon pursuant to

       Trial Rule 52(A) at the request of the parties. When a party requests findings of

       fact, we apply a two-step review. In re Moeder, 27 N.E.3d 1089, 1097 (Ind. Ct.

       App. 2015), trans. denied. First, we consider whether the evidence supports the

       findings, and second, whether the findings support the judgment. Id. We do

       not reweigh the evidence or assess witness credibility, and we consider only the

       evidence most favorable to the judgment. Id. We will set aside the trial court’s

       findings and conclusions only if they are clearly erroneous; that is, if the record

       contains no facts or inferences supporting them. Id. at 1097-98.


[31]   Our review of the record supports the trial court’s finding that this was

       essentially a “he said, she said” controversy between Brazier and Papaj

       regarding what Brazier was asked to do and what he actually did at the

       complex. The trial court credited Papaj’s testimony over Brazier’s, and we will

       defer to that determination. Viewing the trial court’s findings of fact through

       the lens of the trial court’s credibility determinations, the evidence supports the

       trial court’s findings and judgment.


[32]   The trial court concluded “Brazier cannot recover under a theory of contractual

       liability or quantum meruit as he has not shown by a preponderance of the

       evidence that he has performed work, including the Bay Window Project, for




       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 20 of 26
       which he has not been compensated.” Appellant’s App. at 22. 8 The essential

       elements of a breach of contract claim are the existence of a contract, the

       defendant’s breach, and damages to the plaintiff as a result. Old Nat’l Bank v.

       Kelly, 31 N.E.3d 522, 531 (Ind. Ct. App. 2015), trans. denied. There seems to be

       no dispute that Brazier never had an express written contract with Maple Lane

       for any of the work he performed at the complex; rather, he performed work as

       agreed between himself and Papaj acting on behalf of Maple Lane. Crediting

       Papaj’s testimony that she did not ask Brazier to paint the windows and trim on

       all 100 buildings in the complex, there was no agreement between Brazier and

       Maple Lane for Brazier to perform the Bay Window Project, and therefore no

       contract for Maple Lane to breach.


[33]   As for a quantum meruit claim, there must be proof the plaintiff conferred a

       benefit upon the defendant at the express or implied request of the defendant,

       allowing the defendant to retain that benefit without restitution would be

       unjust, and the plaintiff expected payment. Woodruff v. Ind. Family & Soc. Servs.



       8
         Brazier’s complaint and, as the trial court noted, “belabored, disorganized presentation of his case” at trial,
       Appellant’s App. at 19, leaves us without a clear understanding of the theory under which he was seeking
       recovery. At trial, it appears Brazier was proceeding under the theory of quantum meruit, as when Maple
       Lane moved to dismiss at the conclusion of Brazier’s case-in-chief, Brazier’s counsel stated, “I believe that
       Plaintiff has met its burden of proof in all counts, unjust enrichment, the invoices the 2009 [sic]. I think that
       he’s proven all of the elements of unjust enrichment, detrimental reliance.” Tr. at 754. In his brief, however,
       Brazier almost exclusively argues he was claiming an account stated and due. The trial court did not address
       an account stated theory in its judgment. “An account stated is an agreement between the parties that all
       items of an account and balance are correct, together with a promise, expressed or implied, to pay the
       balance.” Jackson v. Trancik, 953 N.E.2d 1087, 1091 (Ind. Ct. App. 2011). An account stated arises only
       when each party to the transaction views the account as a final adjustment of the respective demands
       between them. MHC Surgical Ctr. Assocs., Inc. v. State Office of Medicaid Policy & Planning, 699 N.E.2d 306, 310
       (Ind. Ct. App. 1998). Because Maple Lane immediately disputed not only the amount of the invoices, but
       also that Brazier had performed the work reflected by the invoices, there are no admittedly valid claims on
       which to establish an account stated in this case.

       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015                         Page 21 of 26
       Admin., 964 N.E.2d 784, 791 (Ind. 2012), cert. denied, 133 S. Ct. 233 (2012).

       Again, crediting Papaj’s testimony, Brazier failed to prove he conferred a

       benefit upon Maple Lane at Maple Lane’s express or implied request. Papaj

       testified she never asked Brazier to perform the Bay Window Project and

       further testified Brazier did not in fact do that work. Although it is undisputed

       Brazier was asked to, and did, perform the Clubhouse Project, the evidence does

       not clearly support Brazier’s claim that he was not paid for that work. The trial

       court’s judgment is not clearly erroneous.9


                                       V. Motion for Sanctions
[34]   Finally, Brazier’s counsel challenges the sanctions the trial court imposed upon

       her for discovery violations relating to the invoices. The trial court’s order

       states:


                 Reduced photocopy invoices were attached as Exhibit A to the
                 Verified Complaint. At trial, [Brazier’s] counsel attempted to
                 introduce the invoices themselves. The invoices were not
                 admitted into evidence after the surprising and wholly
                 unanticipated testimony by [Brazier] that the invoices he sought
                 to introduce, which he and counsel repeatedly characterized as


       9
         Brazier contends the trial court erred in failing to grant his motion to reconsider and motion to correct error.
       A motion to reconsider is a prejudgment motion; after final judgment, a motion to correct error is
       appropriate. Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998). Regardless of how Brazier
       styled his motion, it raises issues already discussed in this opinion regarding Maple Lane’s alleged judicial
       admissions, admission of the invoices, and evidence supporting the judgment. Having found no error with
       respect to those issues, we need not discuss them further. To the extent the motion attempts to present
       “newly discovered evidence” in the form of affidavits from Brazier and Fox regarding the creation of the
       invoices prior to filing suit, there is no indication any of that information “could not have been discovered
       and produced at trial . . . .” Trial Rule 59(A)(1). The motion also raises an issue regarding the trial court’s
       ruling on Maple Lane’s motion for sanctions, which remained under advisement at the time this motion was
       filed. We will address the motion for sanctions separately.

       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015                          Page 22 of 26
               “copies” of the invoices he had submitted to [Maple Lane], were,
               in fact, created by [Brazier] for purposes of this litigation after
               meetings with counsel. This testimony was so astonishing given
               the vehemence with which [Brazier’s] counsel has continued to
               argue that the Court erred in not determining that [Maple Lane]
               had made a “judicial admission” of the authenticity of the
               invoices, that the Court, and likely [Maple Lane’s] counsel,
               wholly expected [Brazier’s] counsel to correct [Brazier’s]
               testimony. Counsel did no such thing . . . .
               ***
               [Brazier] needlessly based his trial strategy on documents and
               then failed to disclose the true nature of those documents to
               [Maple Lane], impacting the manner in which [Maple Lane]
               would likely respond to [Brazier’s] Motion for (Partial) Summary
               Judgment, and depriving [Maple Lane] of the opportunity to the
               full and complete disclosure it sought through the discovery
               process.
               [Brazier’s] counsel is sanctioned in the sum of $5,000.00 . . . .


       Appellant’s App. at 25-26.


[35]   Maple Lane filed a motion to compel discovery and for sanctions under Trial

       Rule 37 and also requested sanctions pursuant to Trial Rule 11 in its

       memorandum following the trial court’s final judgment. It is unclear on which

       basis the trial court ordered sanctions, and Brazier does not present a reasoned

       argument for why such sanctions were inappropriate, instead simply stating the

       request for sanctions “is wholly unwarranted, without legal support, factual

       support, cause, or merit and they are not warranted or reasonable.” Corrected

       Br. of Appellant at 42. We note that, despite Maple Lane’s outstanding motion




       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 23 of 26
       to compel discovery, there was no corresponding order entered compelling

       discovery at any time during this litigation.10 By the time Maple Lane brought

       this to the trial court’s attention, the trial had already been underway for three

       days. See Tr. at 401. Therefore, the imposition of Trial Rule 37 sanctions

       would be inappropriate. See Ind. Trial Rule 37(B)(2) (“If a party . . . fails to obey

       an order to provide or permit discovery, . . . the court in which the action is

       pending may make such orders in regard to the failure as are just . . . .”)

       (emphasis added).


[36]   Trial Rule 11(A) requires every pleading or motion filed by a party represented

       by an attorney to be signed by the attorney, constituting “a certificate by him

       that he has read the pleadings; that to the best of his knowledge, information,




       10
         Maple Lane’s motion to compel and for sanctions was file-stamped by the trial court on September 4,
       2012. Appellant’s App. at 441. Although file-stamped, this motion is not reflected in the trial court’s
       chronological case summary (“CCS”). Id. at 2. On September 5, 2012, Brazier’s counsel filed the following
       CCS entry:
              [Brazier], by counsel, notifies the Court that [Maple Lane’s] counsel advised [Brazier’s] counsel
              via telephone today that [Maple Lane’s] counsel will be notifying the Court that, in violation of
              the Indiana Trial Rules and St. Joseph County Local Rules, [Maple Lane’s] counsel failed to
              notify [Brazier’s] counsel by any form of communication of any discovery issues with [Brazier’s]
              May 2012 answers and responses [to discovery] or [Brazier’s] June 2012 answers and responses
              prior to filing [Maple Lane’s] August 31, 2012 Motion to Compel requesting sanctions and that
              [Maple Lane’s] counsel would report to the Court that she has already received [Brazier’s]
              supplemental discovery that is the subject of [Maple Lane’s] August 31, 2012 Motion to
              Compel.
       Id. at 528. This entry is not reflected in the CCS, nor is any subsequent notice from Maple Lane to this effect.
       What is reflected in the CCS is that Brazier “files proposed order on motion to compel discovery and
       sanctions. Order files [sic] unsigned Parties have resolved these issued [sic].” Id. at 2. The trial court stated
       in its order imposing sanctions that a hearing had been scheduled on the motion to compel and for sanctions
       but was vacated and not reset. Id. at 26.

       Regardless of what actually happened—and on this record, it would be pure speculation to try to ascertain—
       the relevant fact is that Maple Lane did nothing to move its motion to compel forward until it filed a
       supplement to its motion in the midst of trial, and no order was ever entered compelling Brazier to
       supplement his discovery responses.


       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015                         Page 24 of 26
and belief, there is good ground to support it; and that it is not interposed for

delay.” The trial court has discretion to impose sanctions under Trial Rule 11

where it determines that a verified pleading or motion contains information the

attorney knows to be false. Zwiebel v. Zwiebel, 689 N.E.2d 746, 750 (Ind. Ct.

App. 1997) (basing the trial court’s discretion to impose sanctions on the

provision that an attorney may be subjected to appropriate disciplinary action

for a willful violation of the rule), trans. denied. Both Maple Lane and the trial

court focus on the representation from the filing of the complaint through

several days of trial that the invoices attached to Brazier’s complaint were

“copies” of the originals submitted to Maple Lane. They also note Brazier’s

insistence throughout this litigation that not only were the “copies” authentic,

but Maple Lane had judicially admitted they were authentic and owed. In fact,

the invoices were created out of whole cloth after Brazier met with his attorney

in preparation for filing this lawsuit; the reliability of those invoices as proof of

anything is therefore suspect. Brazier’s counsel signed numerous pleadings and

motions asserting the authenticity of the invoices as copies, and we conclude

the evidence demonstrates Brazier’s counsel knowingly mispresented and/or

failed to correct any misrepresentation regarding the nature of those invoices

from the day this litigation was initiated. As such, the trial court did not abuse

its discretion in ordering her to pay a small percentage of Maple Lane’s attorney

fees generated by this litigation.




Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 25 of 26
                                                Conclusion
[37]   The trial court did not err in denying Brazier’s motion for summary judgment

       or in its evidentiary rulings at trial. Further, the trial court’s judgment is not

       clearly erroneous, and the trial court did not abuse its discretion in imposing

       sanctions against Brazier’s counsel for mispresenting the nature of the

       documents on which Brazier based his entire case. The judgment of the trial

       court is affirmed.


[38]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 71A04-1406-CC-278 | October 22, 2015   Page 26 of 26
