      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                   Dec 10 2015, 8:53 am
      regarded as precedent or cited before any
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      Gregory S. Reising
      Gary, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      The Marriage of:                                        December 10, 2015

      Bernadette C. Jones, f/k/a                              Court of Appeals Case No.
                                                              45A04-1505-DR-433
      Bernadette C. Brunson,
                                                              Appeal from the Lake Superior
      Appellant,                                              Court
              and                                             The Honorable Elizabeth F.
                                                              Tavitas, Judge
      Bennie Brunson,                                         Trial Court Cause No.
                                                              45D03-0804-DR-408
      Appellee




      Robb, Judge.



                                Case Summary and Issue
[1]   Bernadette Jones and Bennie Brunson entered into a marital settlement

      agreement, which the trial court later incorporated into the couple’s final decree
      Court of Appeals of Indiana | Memorandum Decision 45D03-0804-DR-408 | December 10, 2015        Page 1 of 6
      of dissolution. Six years later, Brunson filed a motion to compel Jones to

      assume the mortgage on the property the couple previously shared. The trial

      court granted Brunson’s motion. On appeal, Jones raises two issues for our

      review, which we consolidate and restate as whether the trial court erred in

      granting Brunson’s motion to compel. Concluding the trial court erred in

      granting Brunson’s motion to compel, we reverse and remand.



                             Facts and Procedural History
[2]   At the outset, we note there are few facts in the record.1 From what we can

      gather, the parties entered into a stipulated property settlement agreement, and

      the trial court incorporated the parties’ agreement into the final decree of

      dissolution in the spring of 2009. As a part of the agreement, Brunson “will

      Quit claim [sic] all right title and interest in the real estate located at 8310

      Hickory Ave., Gary, IN to [Jones]. [Jones] shall hold [Brunson] harmless for

      the liabilities associated with same.” Appellant’s App. at 12. In addition, the

      agreement provided,

              In consideration of the premises, each spouse agrees, at the
              request and expense of the other, hereafter to execute and deliver



      1
        We note two issues with Jones’ brief. First, Jones’ Statement of the Case does not include appropriate
      citation to the record on appeal or appendix as required by Appellate Rule 46(A)(5). Second, Jones’
      Statement of the Facts states, “There are no facts in this Cause of Action which are not stated in the
      Statement of the Case.” Appellant’s Appendix at 3. On its face, this satisfies Appellate Rule 46(A)(6)
      because a party need not repeat statements made during the statement of the case. Here, however, Jones
      sprinkles factual statements not previously mentioned throughout the Summary of the Argument and
      Argument sections of her brief. Therefore, Jones’ Statement of the Facts does not satisfy Appellate Rule
      46(A)(6).

      Court of Appeals of Indiana | Memorandum Decision 45D03-0804-DR-408 | December 10, 2015          Page 2 of 6
               to the other party any and all deeds, bills of sale, instruments of
               assignment, or other documents, that the other may reasonably
               require for the purpose of giving full force and effect to the
               provisions of this Agreement. If either party hereto for any
               reason shall fail or refuse to execute any such documents, then
               this Agreement shall, and it is hereby expressly declared to,
               constitute full and effective present transfer assignment, and
               conveyance of all rights hereinabove designated to be transferred,
               assigned and conveyed and a full, present and effective
               relinquishment and waiver of all rights herein above designated
               to be relinquished and waived.


      Id. at 13 (“Additional Document Provision”).


[3]   Nearly six years later, on February 2, 2015, Brunson filed a motion to compel

      Jones to assume the mortgage on the property. The trial court held a hearing

      on the motion. At the hearing, Brunson, through counsel, alleged the mortgage

      on the property was frequently delinquent, which negatively affected his credit

      rating.2 Therefore, Brunson argued, the Additional Document Provision

      required Jones to execute documents assuming the mortgage in order to have

      the full force and effect of holding Brunson harmless from the liabilities

      associated with the property. Jones countered, arguing that compelling her to

      assume the mortgage would be an act of modifying—not enforcing—the terms




      2
        In support of Brunson’s unverified motion, he attached an uncertified copy of a printout from Chase Bank
      indicating Jones was late in making her mortgage payments thirteen times over an eighteen-month period.
      See Greenfield v. Arden Seven Penn Partners, L.P., 757 N.E.2d 699, 703 (Ind. Ct. App. 2001) (holding a trial court
      should not consider exhibits that are unsworn, uncertified, and/or unverified), trans. denied. Brunson also
      alleged his credit rating had dropped to 525. Brunson, however, did not introduce any evidence regarding his
      credit score.

      Court of Appeals of Indiana | Memorandum Decision 45D03-0804-DR-408 | December 10, 2015               Page 3 of 6
      of the parties’ settlement agreement. The trial court took the matter under

      advisement.


[4]   On March 12, the trial court issued an order granting Brunson’s motion to

      compel Jones to assume the mortgage. The trial court reasoned the parties’

      settlement agreement required Jones to execute documents assuming the

      mortgage in order to effectuate the hold harmless provision. Jones filed a

      motion to correct error, which the trial court denied. Jones now appeals the

      trial court’s grant of Brunson’s motion to compel.



                                Discussion and Decision
[5]   Brunson did not file an appellee’s brief with this Court. When an appellee does

      not submit a brief, an appellant may prevail by making a prima facie case of

      error. Vill. of Coll. Corner v. Town of W. Coll. Corner, 766 N.E.2d 742, 745 (Ind.

      Ct. App. 2002). We define prima facie in this context as “at first sight, on first

      appearance, or on the face of it.” Id. “Such a rule protects this Court and

      relieves it from the burden of controverting arguments advanced for reversal, a

      duty that properly remains with the appellee.” Mitchell v. Mitchell, 871 N.E.2d

      390, 394 (Ind. Ct. App. 2007).


[6]   Here, the trial court based its decision upon its interpretation of the parties’

      property settlement agreement, namely the hold harmless provision and

      Additional Document Provision. When interpreting settlement agreements, we

      apply general rules applicable to the construction of contracts. Ogle v. Ogle, 769


      Court of Appeals of Indiana | Memorandum Decision 45D03-0804-DR-408 | December 10, 2015   Page 4 of 6
      N.E.2d 644, 647 (Ind. Ct. App. 2002), trans. denied. Therefore, unless the terms

      of the settlement agreement are ambiguous, they will be given their plain and

      ordinary meaning. Id.


[7]   In Indiana, the phrase “hold harmless” is synonymous with “indemnify.”

      Henthorne v. Legacy Healthcare, Inc., 764 N.E.2d 751, 756 (Ind. Ct. App. 2002).

      “In general, an indemnity agreement involves a promise by one party

      (indemnitor) to reimburse another party (the indemnitee) for the indemnitee’s

      loss, damage, or liability.” Id. (emphasis added). A duty to indemnify does not

      arise until the party seeking indemnity suffers loss or incurs damages. Id. at 757

      (quotation omitted).


[8]   Here, the plain meaning of the phrase “hold harmless” does not require Jones

      to assume the mortgage; the plain meaning of the provision requires Jones to

      reimburse Brunson if he suffers harm associated with the property. See id. at

      756. In addition, the Additional Documents Provision requires the parties

      execute all documents that may be reasonably required “for the purpose of

      giving full force and effect to the provisions” of the parties’ agreement.

      Appellant’s App. at 14. However, we need not look to this provision unless

      there is evidence showing the full force and effect of the agreement has been

      compromised, or in other words, evidence showing Jones failed to hold

      Brunson harmless. There was no such evidence. Brunson’s motion to compel

      was unverified; the Chase Bank records were uncertified; there was no evidence

      showing Brunson suffered harm; and there was no sworn testimony given at the

      hearing.

      Court of Appeals of Indiana | Memorandum Decision 45D03-0804-DR-408 | December 10, 2015   Page 5 of 6
[9]    We conclude the trial court committed prima facie error in granting Brunson’s

       motion to compel because there was no evidence Jones was not holding

       Brunson harmless.



                                              Conclusion
[10]   Jones has presented a case of prima facie error. Concluding there was no

       evidence Jones was not holding Brunson harmless, we reverse and remand.


[11]   Reversed and remanded.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45D03-0804-DR-408 | December 10, 2015   Page 6 of 6
