FOR PUBLICATION                                    May 08 2014, 11:04 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

JAMES E. AYERS                               THOMAS G. BURROUGHS
Wernle, Ristine & Ayers                      MICHAEL W. HILE
Crawfordsville, Indiana                      Katz & Korin, PC
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

DON MORRIS,                                  )
                                             )
      Appellant-Plaintiff,                   )
                                             )
             vs.                             )        No. 32A04-1306-PL-321
                                             )
BIOSAFE ENGINEERING, LLC,                    )
                                             )
      Appellee-Defendant.                    )


                   APPEAL FROM THE HENDRICKS SUPERIOR COURT
                           The Honorable Mark A. Smith, Judge
                              Cause No. 32D04-1208-PL-91



                                     May 8, 2014


                             OPINION - FOR PUBLICATION


NAJAM, Judge
                                 STATEMENT OF THE CASE

      Don Morris appeals the trial court’s entry of summary judgment for BioSafe

Engineering, Inc. (“BioSafe”). Morris raises a single issue for our review, namely,

whether the trial court erred when it entered summary judgment for BioSafe.

      We affirm.

                          FACTS AND PROCEDURAL HISTORY

      The facts underlying this appeal were stated by this court in a prior appeal:

      The facts most favorable to Morris and [Randy] Coakes,[1] the non-movants
      for summary judgment, are as follows. In 2006, Morris was employed by
      Waste Recovery, which provided biological effluent destruction systems
      products[, that is, products used in the management of animal carcasses].
      When it became apparent that the company was insolvent, Morris
      approached [Richard] Redpath in regard to forming a new company to
      “take control of the niche industry.” On November 15, 2006, Waste
      Recovery ceased doing business; Morris paid a rent installment and agreed
      to execute a five-year lease for the premises previously occupied by Waste
      Recovery. He initiated remodeling of the premises and began to investigate
      financing.

             Later in November, [Brad] Crain, Coakes, Redpath, and Morris
      conducted a conference call regarding the new business. Morris and
      Coakes drafted a spreadsheet of proposed ownership shares (45% to
      Morris, as President, 25% and 20% to Crain and Redpath, respectively, as
      Vice-Presidents, and 2% each to Coakes, [Steven] Biesecker, [Tyler]
      Johnson, [Brandon] Ross, and [Chris] Sollars). After negotiation, the
      shares allocation was changed to 40% for Morris, 30% for Crain, and 20%
      for Redpath (with the others retaining 2% each).

             Marketing materials were distributed indicating that Redpath,
      Morris, and Crain were “principals” of BioSafe. Nonetheless, in January of
      2007, Articles of Organization for BioSafe were filed with the Indiana
      Secretary of State, indicating that Crain and Redpath were the sole
      members, each having 50% ownership.




      1
          Although Coakes is a named plaintiff, he does not participate in the instant appeal.
                                                     2
       In August of 2007, Crain advised Morris that a building in
Brownsburg had been leased in anticipation of acquiring Waste Recovery
assets. The following month, Morris asked Crain about signing to purchase
Waste Recovery assets, and was told that Crain and Redpath had been
representing that they were each 50/50 owners. Later that month, BioSafe
successfully bid for the assets of Waste Recovery. Redpath advised Morris
that new investors now owned 50% of BioSafe.

       The new owners of record were Justin Bisland (“Bisland”) and LPM
Investments, LLC. In October of 2007, Bisland came into the BioSafe
offices and fired Morris. Morris was unable to locate the electronic
document he had drafted with regard to shared ownership; he reached the
conclusion that it had been deleted from the company files.

        On March 5, 2010, Morris and Coakes filed their complaint. An
amended complaint asserted that Morris and Coakes had equitable interests
and contractual rights in BioSafe and that they had standing to bring a
shareholder derivative action. They sought the appointment of a receiver,
an accounting and disgorgement of funds, and BioSafe’s dissolution. The
defendants answered, denying that Redpath and Crain had created a false
document, made false representations, brought about the plaintiff’s ouster,
diverted funds, or met with Morris to discuss ownership participation. The
defendants also denied that Morris and Coakes held an equitable interest, or
that they had standing to bring a shareholder derivative claim.

       On February 8, 2011, the majority of the defendants[, including
BioSafe,] moved for summary judgment; Crain and Redpath subsequently
joined in the motion. The parties made their respective designations of
materials. The trial court conducted a hearing on July 26, 2011, at which
argument of counsel was heard. BioSafe’s counsel argued that the
shareholder derivative claims were unfounded or, at a minimum, were
premature, and that the case distilled to “a case of an oral contract at best
between Mr. Crain and Mr. Redpath and Mr. Morris and Mr. Coakes . . . of
dubious merit.” Counsel for Crain and Redpath argued that there had, at
most, been discussion about a business yet to be formed, “an offer that was
never accepted.”

      On the following day, the trial court issued an order dismissing
[some] defendants . . . and ordering the remaining parties to submit
documents:

       1. Plaintiffs, within ten (10) days, must file with the Court a
       document stating with specificity the legal theories the
       Plaintiffs assert against the Defendants.
                                     3
              2. Within ten (10) days thereafter, the Defendants must file a
              document stating with specificity the legal elements of the
              Plaintiffs theories that the Defendants assert have not been
              met.

       On August 8, 2011, Morris and Coakes submitted a document indicating
       that their theories of recovery were breach of contract, unjust enrichment,
       and estoppel. Crain and Redpath jointly, and BioSafe separately, submitted
       “statements of elements not met by plaintiffs.”

             On August 19, 2011, the trial court granted summary judgment to all
       defendants in an order providing in pertinent part:

              Plaintiff[s’] theory is in contract.       The Defendant[s’]
              Statement of Elements Not Met of Defendants BioSafe
              Engineering LLC, Steve Biesecker, Tyler Johnson, Brandon
              Ross and Chris Sollars correctly sets out the current state in
              the law regarding Plaintiffs[’] complaint.

              Based upon application of the law to the facts of this case at
              this pleading stage, the court must GRANT the Defendant[s’]
              Motion for Summary Judgment for the reasons set out in the
              Statement of Elements Not Met filed 8-16-11 and enters
              Summary Judgment on behalf of the Defendants and against
              the Plaintiffs. There is no reason for any delay in this Order.

       This appeal ensued.

Morris v. Crain, 969 N.E.2d 119, 121-23 (Ind. Ct. App. 2012) (footnotes and citations to

the record omitted) (“Morris I”).

       In a footnote, we clarified the plaintiffs’ claims in light of the events following the

summary judgment hearing:

       The Amended Complaint sought a declaratory judgment regarding
       ownership of BioSafe as well as the appointment of a receiver and an
       accounting of funds. The averments of the Amended Complaint included
       allegations of fraud; additionally, the Plaintiffs contended “this case is also
       brought as a derivative action to establish, fix, and determine the rights of
       the LLC for recoupment from Brad Crain and Richard Redpath and
       disgorgement by Defendants to the LLC of any benefits, property, or funds
                                              4
       received improperly.” However, after the summary judgment hearing, the
       trial court ordered the plaintiffs to clarify, in writing, the causes of action
       upon which they were proceeding. The plaintiffs responded that their
       theories of recovery were breach of contract, unjust enrichment, and
       estoppel.

Id. at 120 n.2 (citations to the record omitted). And, in another footnote, we declared that

the plaintiffs’ “shareholder derivative claim” had been “abandoned.” Id. at 121 n.3.

       In Morris I, we reversed the trial court’s entry of summary judgment on the

ground that the judgment had been “improvidently granted.” Id. at 125. In particular, we

noted that, one day after the summary judgment hearing, the court had ordered Morris

and Coakes to clarify their causes of action in writing within ten days. They did so by

counsel, limiting their theories of recovery to “breach of contract, unjust enrichment[,]

and equitable estoppel.” Id. at 123; see Appellee’s App. at 124-25. Following the

plaintiffs’ clarification, “[t]he trial court ordered the defendants to identify how the

plaintiffs had failed to meet the elements of the specified claims.” Morris I, 969 N.E.2d

at 124. We rejected the procedure employed by the trial court:

       This effectively challenged the plaintiffs to establish each of their claims in
       order to withstand summary judgment. Indeed, as there had been no trial of
       issues, the documents purporting to “state elements not met” necessarily
       assumed that all factual disputes had been resolved in the defendants’ favor.
       The focus upon the plaintiff[s’] purported failure to establish a claim is not
       consistent with our summary judgment standard.

Id. (footnotes omitted).    Accordingly, we reversed the court’s entry of summary

judgment.

       Following this court’s decision in Morris I, on March 27, 2013, BioSafe filed a

second motion for summary judgment against Morris and Coakes. In particular, BioSafe

moved for summary judgment on “each of the three (3) claims asserted by the Plaintiffs,”
                                             5
namely, “breach of contract, unjust enrichment[,] and equitable estoppel[.]” Appellant’s

App. at 8. In response, Morris and Coakes merely stated that their claims against BioSafe

included an action for declaratory judgment, a shareholder derivative action, and a

demand for an accounting. See Appellant’s App. at 138. But Morris and Coakes made

no mention of their August 8, 2011, representation to the trial court that they were only

pursuing theories of breach of contract, unjust enrichment, and equitable estoppel against

BioSafe. After a hearing, on May 29 the court entered summary judgment for BioSafe

“on each of the Plaintiffs’ three (3) claims.” Id. at 181. On September 24, the court

entered a nunc pro tunc order in which the court clarified that its May 29 entry of

summary judgment was a final judgment for BioSafe. This appeal ensued.

                           DISCUSSION AND DECISION

      Morris appeals the trial court’s entry of summary judgment for BioSafe. Our

standard of review for summary judgment appeals is well established:

      When reviewing a grant of summary judgment, our standard of review is
      the same as that of the trial court. Considering only those facts that the
      parties designated to the trial court, we must determine whether there is a
      “genuine issue as to any material fact” and whether “the moving party is
      entitled to a judgment a matter of law.” In answering these questions, the
      reviewing court construes all factual inferences in the non-moving party’s
      favor and resolves all doubts as to the existence of a material issue against
      the moving party. The moving party bears the burden of making a prima
      facie showing that there are no genuine issues of material fact and that the
      movant is entitled to judgment as a matter of law; and once the movant
      satisfies the burden, the burden then shifts to the non-moving party to
      designate and produce evidence of facts showing the existence of a genuine
      issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009)

(citations omitted). The party appealing from a summary judgment decision has the


                                            6
burden of persuading this court that the grant or denial of summary judgment was

erroneous. Knoebel v. Clark Cnty. Superior Ct. No. 1, 901 N.E.2d 529, 531-32 (Ind. Ct.

App. 2009).

        The only clear legal argument that Morris proffers on appeal is that summary

judgment for BioSafe was inappropriate with respect to Morris’ shareholder derivative

claim.2 See Appellant’s Br. at 8-19. BioSafe asserts in response that Morris cannot argue

this theory of liability because he has abandoned it. In his Reply Brief, Morris asserts

that this claim is “clearly set out in the Complaint and the Amended Complaint” and that

it was “always before” the trial court. Reply Br. at 2.

        To “abandon” a claim means “to cease to assert or exercise an interest, right, or

title” to it, especially “with the intent of never again resuming or reasserting it.”

Webster’s 3d New Int’l Dictionary 2 (2002). An attorney can make an admission to a

trial court that is binding upon his client. Heyser v. Noble Roman’s, Inc., 933 N.E.2d 16,

19 (Ind. Ct. App. 2010), trans. denied. And such a binding admission may include the

abandonment of a claim. In Heyser, the trial court asked the plaintiffs’ counsel to clarify

whether the plaintiffs were claiming actual fraud or constructive fraud against a

defendant, and the plaintiffs’ counsel admitted that the plaintiffs were claiming actual

        2
           Morris also makes a passing reference to his claim for a declaratory judgment, see Appellant’s
Br. at 9, and he emphasizes some factual disputes in the record. But, insofar as Morris desired to make
any legal argument on appeal aside from his shareholder derivative claim, Morris has not supported such
arguments with cogent reasoning or citation to authority, and it is not this court’s place to make
arguments for Morris. As such, any other possible legal arguments—including any possible arguments
relating to claims against BioSafe for breach of contract, unjust enrichment, or equitable estoppel—are
waived. Ind. Appellate Rule 46(A)(8)(a). Further, Morris’ insistence on certain factual disputes is not by
itself enough to preclude the entry of summary judgment. An issue of fact will preclude the entry of
summary judgment only if it is a genuine issue of material fact. Ind. Trial Rule 56(C). As explained
below, Morris’ only legal issues against BioSafe were for breach of contract, unjust enrichment, and
equitable estoppel. Because Morris does not cogently defend any of those legal theories on appeal, there
are no genuine issues of material fact to preclude the entry of summary judgment for BioSafe.
                                                    7
fraud only. We held that this admission “was binding upon the [plaintiffs] throughout the

lawsuit,” and we affirmed the trial court’s entry of summary judgment against the

plaintiffs on their “subsequent attempt to plead constructive fraud.” Id. at 20.

        Similarly, in American Savings, FSB v. Tokarski, 959 N.E.2d 909, 915 (Ind. Ct.

App. 2011), trans. denied, the trial court questioned the plaintiff’s attorney as to whether

one of the plaintiff’s claims against the defendant was based in tort or in contract. The

plaintiff’s attorney expressly stated that the claim was based in contract and not in tort,

and the court entered summary judgment for the defendant on any theories of tort within

that claim. The plaintiff appealed that aspect of the trial court’s summary judgment, and

we affirmed, stating:

        An attorney can make an admission to a trial court that is binding upon his
        client. A statement which contains ambiguities or doubt is not to be
        regarded as a binding admission. The unambiguous statements by
        [plaintiff’s] counsel constituted a binding admission that Count I does not
        state a claim for conversion, failure to exercise ordinary care, or any other
        tort. We therefore conclude that [plaintiff] has abandoned any tort claims
        in Count I. Further, because [plaintiff] abandoned these claims altogether
        and not merely for the purposes of his summary judgment motion, we need
        not address whether [the defendant] has established that it is not liable for
        conversion or failure to exercise ordinary care for the purposes of its own
        summary judgment motion.

Id. (citations and footnote omitted).3

        Based on the record in the instant appeal, we must conclude that Morris

unambiguously abandoned his shareholder derivative claim against BioSafe.                         Here,

similar to Heyser and American Savings, the trial court asked Morris, by counsel, to “file

with the Court a document stating with specificity the legal theories the Plaintiffs assert


        3
            Although BioSafe expressly relies on American Savings in its brief on appeal, Morris does not
discuss it in his Reply Brief.
                                                   8
against the Defendants.” Appellee’s App. at 123. Morris did so on August 8, 2011,

when he informed the trial court that his specific legal theories against the defendants,

including BioSafe, were breach of contract, unjust enrichment, and equitable estoppel.

Id. at 124-25. As we noted in Morris I, Morris’ submission to the trial court limited his

causes of action to those three claims. 969 N.E.2d at 120 n.2. Indeed, we expressly

stated that Morris’ “shareholder derivative claim” had been “abandoned” in light of his

written response to the trial court’s request. Id. at 121 n.3.

        Morris did not petition this court for rehearing in Morris I on the ground that those

statements were incorrect.          Further, BioSafe relied on Morris’ abandonment of his

shareholder derivative claim when it filed its March 27, 2013, motion for summary

judgment, which BioSafe expressly limited to “each of the three (3) claims asserted by

the Plaintiffs . . . for breach of contract, unjust enrichment[,] and equitable estoppel[.]”

Appellant’s App. at 8. Morris did not respond to BioSafe’s motion by asserting that

BioSafe, this court in Morris I, or the trial court in the first summary judgment

proceeding had erroneously restricted his theories of liability.                    Neither did Morris

respond to BioSafe’s March 27, 2013, motion by asserting that he had not abandoned his

shareholder derivative claim.4           Rather, Morris merely stated that his claims in the

amended complaint included a claim for a shareholder derivative action and he proceeded



        4
            Morris does not make this argument in his initial brief on appeal and it is, therefore, waived.
App. R. 46(A)(8)(a). Even if he had made this argument, it is well settled that “[i]ssues not raised before
the trial court on summary judgment cannot be argued for the first time on appeal and are waived.”
Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004). And insofar as Morris may have
attempted to raise this argument in his Reply Brief, he does not do so cogently, and, regardless, “[t]he law
is well settled that grounds for error may only be framed in an appellant’s initial brief and[,] if addressed
for the first time in the reply brief, they are waived.” Monroe Guar. Ins. Co. v. Magwerks Corp., 829
N.E.2d 968, 977 (Ind. 2005).
                                                     9
to describe designated evidence in support of that claim. Id. at 138. Of course, merely

asserting a claim that has been abandoned will not salvage it. See, e.g., American

Savings, 959 N.E.2d at 915; Heyser, 933 N.E.2d at 19.

       Further, contrary to Morris’ argument in his Reply Brief, our holding in Morris I

did not “nulli[f]y” Morris’ August 8, 2011, admission to the trial court that he was no

longer pursuing his claim for declaratory judgment, his derivative action, or his demand

for an accounting. See Reply Br. at 2. Although we reversed the court’s entry of

summary judgment in Morris I, we nonetheless made it a point to explain Morris’

admission, which we used to frame our discussion of the legal issues that remained for

summary judgment. See Morris I, 969 N.E.2d at 121-22 nn.2, 3. And we did not hold

that the trial court improperly ordered Morris to specify his legal claims. Indeed, such an

order was well within the trial court’s discretion, see, e.g., American Savings, 959 N.E.2d

at 915; Heyser, 933 N.E.2d at 19, and Morris has never asserted that the trial court’s

order was erroneous in this respect. Rather, our holding was that the court’s additional

order that the defendants “identify how the plaintiffs had failed to meet the elements of

[their] specified claims” improperly shifted the burden on summary judgment from the

movant to the nonmovant. Morris I, 969 N.E.2d at 124. Our holding in Morris I did not

affect Morris’ admission.

       In sum, Morris expressly and unambiguously abandoned his shareholder

derivative claim in August of 2011 when, in response to the trial court’s demand that he

specify his legal claims, Morris admitted to the court that his claims were for breach of

contract, unjust enrichment, and equitable estoppel. This court acknowledged Morris’


                                            10
abandonment of his shareholder derivative claim in Morris I, and nothing in our prior

opinion nullified Morris’ express admission to the trial court. Both the trial court and

BioSafe relied on and had the right to rely on Morris’ admission. See American Savings,

959 N.E.2d at 915; see also Maldonado ex rel. Maldonado v. Gill, 502 N.E.2d 1371, 1372

(Ind. Ct. App. 1987) (recognizing that a party’s admission “relieves the opposing party of

the duty to present evidence on that issue”), trans. denied.      Morris was, therefore,

estopped from asserting a claim he had abandoned. Thus, Morris’ exclusive theory on

appeal—that the trial court erred when it entered summary judgment because he has a

legitimate shareholder derivative claim against BioSafe—is not grounds to deny

BioSafe’s motion for summary judgment. See American Savings, 959 N.E.2d at 915;

Heyser, 933 N.E.2d at 19. We affirm the trial court’s entry of summary judgment for

BioSafe.

      Affirmed.

VAIDIK, C.J., and BROWN, J., concur.




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