                                                                    FILED
                                                               Nov 02 2018, 6:27 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




ATTORNEYS FOR APPELLANTS                             ATTORNEY FOR APPELLEE
John R. Hurley                                       John D. Cross
Joanne McAnlis                                       Mercer Belanger, P.C.
Michael Mahoney                                      Indianapolis, Indiana
McAnlis Law Group, P.C.
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brian Dunlap and Lauren                                    November 2, 2018
Dunlap,                                                    Court of Appeals Case No.
Appellants-Plaintiffs-Counterclaim                         18A-PL-1212
Defendants,                                                Appeal from the Marion Superior
                                                           Court
        v.                                                 The Hon. Thomas J. Carroll,
                                                           Judge
Shirlena Lange,                                            Trial Court Cause No.
Appellee-Defendant-Counterclaim                            49D06-1607-PL-26355
Plaintiff.




Bradford, Judge.




Court of Appeals of Indiana | Opinion 18A-PL-1212 | November 2, 2018                     Page 1 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 2 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 3 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 4 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.



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