                                                                                FILED
                                                                            Mar 07 2017, 8:54 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
James E. Ayers                                            Sean M. Clapp
Wernle, Ristine & Ayers                                   Ian T. Keeler
Crawfordsville, Indiana                                   Clapp Ferrucci
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Don Morris and Randy Coakes,                              March 7, 2017
Appellants-Plaintiffs,                                    Court of Appeals Case No.
                                                          32A05-1604-PL-761
        v.                                                Appeal from the Hendricks
                                                          Superior Court
Brad Crain and Richard                                    The Honorable Mark A. Smith,
Redpath,                                                  Judge
Appellees-Defendants                                      Trial Court Cause No.
                                                          32D04-1208-PL-91



Crone, Judge.




Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017                     Page 1 of 17
                                              Case Summary
[1]   Don Morris and Randy Coakes (collectively “Plaintiffs”) appeal the trial court’s

      entry of summary judgment in favor of Brad Crain and Richard Redpath

      (“Crain”).1 The sole restated issue presented for our review is whether the trial

      court erred when it entered summary judgment for Crain. Concluding that

      genuine issues of material fact remain for trial, we reverse and remand for

      further proceedings.


                                  Facts and Procedural History
[2]   This is essentially the third appeal surrounding an alleged business relationship

      that existed among these parties. In one of those prior appeals, this Court set

      out the relevant underlying facts and procedural history.

              The facts most favorable to [Plaintiffs], the non-movants for
              summary judgment, are as follows. In 2006, Morris was
              employed by Waste Recovery, which provided biological effluent
              destruction systems products. When it became apparent that the
              company was insolvent, Morris approached 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.




      1
       The record indicates that Richard Redpath passed away on May 22, 2015. Crain’s attorneys state that they
      do not represent Redpath’s heirs or estate and that Plaintiffs have taken no steps to substitute Redpath’s
      estate or heirs as a defendant in this case. Accordingly, Crain is the sole appellee here.

      Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017                      Page 2 of 17
        Later in November, 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, Biesecker, Johnson, Ross, and 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.


        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

Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017   Page 3 of 17
        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 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
        defendants Biesecker, Johnson, Ross, and Sollars 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.


        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.


Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017     Page 4 of 17
              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 [sic] Statement
              of Elements Not Met of Defendants BioSafe Engineering LLC,
              [Biesecker, Johnson, Ross and Sollars] correctly sets out the
              current state in [sic] 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 [sic]
              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.


      Morris v. Crain, 969 N.E.2d 119, 122-23 (Ind. Ct. App. 2012) (footnotes and

      citations to record omitted) (“Morris 1”).


[3]   On appeal in Morris 1, we reversed the trial court’s entry of summary judgment

      in favor of Crain 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 Plaintiffs 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. Following that clarification, “[t]he trial court ordered the

      Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017     Page 5 of 17
      defendants to identify how the plaintiffs had failed to meet the elements of the

      specified claims.” Id. at 124. We rejected this procedure employed by the trial

      court, specifically concluding:

              This effectively challenged [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 [Plaintiffs’] purported failure to establish a claim is not
              consistent with our summary judgment standard.


      Id. (footnotes omitted). Thus, we reversed the entry of summary judgment in

      favor of Crain. Id.


[4]   Thereafter, BioSafe filed a second motion for summary judgment against

      Plaintiffs on ‘“each of the three (3) claims asserted by the Plaintiffs,’ namely,

      ‘breach of contract, unjust enrichment[,] and equitable estoppel[.]’” Morris v.

      BioSafe Eng’g, Inc., 9 N.E.3d 195, 198-99 (Ind. Ct. App. 2014) (citations

      omitted) (“Morris 2”), trans. denied. Plaintiffs responded by stating that their

      claims against BioSafe included an action for declaratory judgment, a

      shareholder derivative action, and a demand for an accounting. They made no

      mention of their previous representation to the trial court that they were only

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

      estoppel against all defendants, including BioSafe. Following a hearing, the

      trial court entered summary judgment for BioSafe “‘on each of the Plaintiffs’




      Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017     Page 6 of 17
      three (3) claims’” and later clarified by order that its entry of summary

      judgment was a final judgment for BioSafe. Id. at 199.


[5]   Morris appealed,2 and in Morris 2, we affirmed the trial court’s entry of

      summary judgment in favor of BioSafe. Specifically, we noted that “[t]he only

      clear legal argument that Morris proffers on appeal is that summary judgment

      for BioSafe was inappropriate with respect to Morris’ shareholder derivative

      claim.” Id.3 Concluding that Morris expressly and unambiguously abandoned

      his shareholder derivative claim when he admitted to the trial court that his

      only claims were for breach of contract, unjust enrichment, and equitable

      estoppel, we determined that Morris was estopped from asserting that claim as

      grounds to deny summary judgment in favor of BioSafe. Id. at 201.


[6]   Following this Court’s decision in Morris 2, Crain filed a motion for summary

      judgment on Plaintiffs’ claims for breach of contract, unjust enrichment, and

      equitable estoppel. In the motion, Crain assumed, arguendo, that Plaintiffs can

      prove that the parties had a contract and that the contract was breached by

      Crain. Crain’s sole argument for purposes of summary judgment was that

      Plaintiffs have suffered no damages relating to any of those three claims.


[7]   In response, Plaintiffs filed a second amended complaint raising additional

      claims for conversion, breach of fiduciary duty, and interference with a business



      2
          Coakes did not participate in the appeal.
      3
       Because Morris failed to present cogent argument regarding the trial court’s entry of summary judgment on
      any other legal theory, we concluded that those arguments were waived. See Morris 2, 9 N.E.3d at 199 n.2.

      Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017                     Page 7 of 17
      relationship. Crain filed a motion to strike the amended complaint, but the trial

      court denied that motion. Accordingly, Crain filed a renewed motion for

      summary judgment and designation of evidence on all of Plaintiffs’ claims

      again arguing that Plaintiffs had suffered no damages. Plaintiffs responded by

      designating two affidavits from Morris in opposition to summary judgment.

      Crain filed his reply and a motion to strike certain portions of the affidavits.


[8]   The trial court held a hearing on Crain’s summary judgment motion and his

      motion to strike on February 24, 2016. On March 7, 2016, the trial court

      entered an order granting summary judgment in favor of Crain and an order

      striking certain portions of Plaintiffs’ affidavits. The trial court subsequently

      corrected a clerical mistake upon motion by Crain, and entered its final

      summary judgment order on April 5, 2016. This appeal ensued.


                                      Discussion and Decision

          Section 1 – The trial court abused its discretion in striking
             certain portions of Plaintiffs’ designated evidence.
[9]   Before addressing the propriety of the trial court’s entry of summary judgment,

      we must first address Plaintiffs’ assertion that the trial court abused its

      discretion in granting Crain’s motion to strike certain portions of Morris’s

      affidavits designated by Plaintiffs in opposition to summary judgment. Indiana

      Trial Rule 56(E) requires that supporting and opposing affidavits “shall be

      made on personal knowledge, shall set forth such facts as would be admissible

      in evidence, and shall show affirmatively that the affiant is competent to testify


      Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017     Page 8 of 17
       to the matters stated therein.” The requirements of Trial Rule 56(E) are

       mandatory and a court considering a motion for summary judgment should

       disregard inadmissible information contained in supporting or opposing

       affidavits. Guzik v. Town of St. John, 875 N.E.2d 258, 265 (Ind. Ct. App. 2007),

       trans. denied (2008). A trial court has broad discretion in ruling on the

       admissibility of evidence. Price v. Freeland, 832 N.E.2d 1036, 1040 (Ind. Ct.

       App. 2005). “This discretion extends to rulings on motions to strike affidavits

       on the grounds that they fail to comply with the summary judgment rules.” Id.

       “We will determine that a trial court has abused its discretion when the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before it.” Williamson v. U.S. Bank Nat’l Ass’n, 55 N.E.3d 906,

       911 (Ind. Ct. App. 2016).


[10]   Here, one of Morris’s affidavits designated in opposition to summary judgment

       contains the transcript of a tape-recorded conversation between Morris and

       Crain that took place in October 2007 in which they discussed the parties’

       agreement to form the new business and in which they debated the current and

       prospective value of the business. Crain moved to strike a substantial portion of

       the affidavit on hearsay, relevancy, and best evidence grounds, and the trial

       court granted the motion. We think that the trial court abused its discretion in

       doing so. Although the trial court struck the entire portion of the affidavit

       consisting of the transcribed conversation between Morris and Crain, for

       purposes of this appeal and our subsequent discussion in section 2 of this

       opinion, we are concerned primarily with the following statement made by


       Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017   Page 9 of 17
       Crain: “Right now, the company is worth about 6 million. That’s the way I

       look at it.” Appellants’ App. at 72. 4


[11]   First, Crain argues that this statement is inadmissible hearsay because it is an

       out-of-court statement made by Crain. Hearsay is “a statement, other than one

       made by the declarant while testifying at the trial or hearing, offered in evidence

       to prove the truth of the matter asserted,” see Ind. Evidence Rule 801(c), and it

       is generally not admissible. Ind. Evidence Rule 802. However, a statement is

       not hearsay if it is a statement made by an opposing party that is offered into

       evidence against him. Ind. Evidence Rule 801(d)(2)(A). While Crain’s out-of-

       court statement would ordinarily be hearsay, it constitutes a statement by an

       opposing party and is therefore not hearsay.


[12]   Next, we address whether the statement is relevant. Relevant evidence is

       defined as evidence having any tendency to make the existence of any pertinent

       fact more probable or less probable than it would be without the evidence. Ind.




       4
         We believe that the entire transcribed conversation contained in Morris’s affidavit is admissible and should
       not have been stricken by the trial court. However, because Crain has narrowed the issue on appeal solely to
       damages, we specifically address only one statement of material fact which is pertinent to our resolution.
       Even though we address that single statement, we reject Crain’s assertion that Plaintiffs were required to
       specifically designate that one sentence to the trial court as creating a material issue of fact, and that their
       designation of the affidavit containing the entire transcribed conversation violated the specificity
       requirements of Indiana Trial Rule 56(C). See Angel v. Powelson, 977 N.E.2d 434, 443 (Ind. Ct. App. 2012) (a
       party should designate materials with “sufficient specificity to identify the relevant portions of a document.”).
       This Court has explained that designating documents, such as affidavits, in their entirety may be necessary
       and appropriate on summary judgment. Id. at 443-44. The affidavit at issue here contains ample relevant
       information that puts the business relationship among the parties into context, and it is neither overly long
       nor complex. Accordingly, the designation of it in its entirety was necessary and sufficiently specific to
       inform the trial court of the material upon which Plaintiffs relied in opposition to summary judgment. For
       that same reason, we reject Crain’s argument that Plaintiffs have waived our consideration of the statement
       upon appellate review of the trial court’s entry of summary judgment.

       Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017                          Page 10 of 17
       Evidence Rule 401. To determine whether evidence concerns a material fact,

       we look to the nature of the case and the issues being litigated, which are

       usually set out in the pleadings. State Farm Mut. Auto. Ins. Co. v. Earl, 33 N.E.3d

       337, 341 (Ind. 2015) (citing MCCORMICK ON EVIDENCE § 185 (7th ed. 2013)).

       Crain argues that the statement is irrelevant and does not have a tendency to

       make the existence of pertinent facts more probable or less probable than it

       would be without the statement. Crain’s statement concerns the value of the

       business shortly after he allegedly deprived the Plaintiffs of their ownership

       interests. As we will discuss more fully below, this statement is relevant to the

       damages Plaintiffs allegedly suffered as a result of Crain’s actions, an issue that

       is squarely before us on summary judgment. The statement is relevant.


[13]   Finally, Crain maintains that the statement, which is part of a larger transcribed

       recorded conversation, violates the best evidence rule. The best evidence rule

       requires that the original writing, recording, or photograph be produced to

       prove the content of such unless otherwise provided by the rules or by statute.

       Ind. Evidence Rule 1002. Specifically, Crain argues that the actual tape

       recording of the conversation should have been produced at the summary

       judgment hearing rather than Morris’s affidavit which includes a transcription

       of the conversation. Our supreme court has explained that the purpose of the

       best evidence rule “is to assure that the trier of the facts has submitted to it the

       evidence upon any issue that will best enable it to arrive at the truth.” Crosson v.

       State, 268 Ind. 511, 518, 376 N.E.2d 1136, 1141 (1978).




       Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017   Page 11 of 17
[14]   Our review of the summary judgment proceedings reveals that the purpose of

       the rule was met here. The record indicates that the actual tape recording had

       been given to Crain and also had been “utilized in earlier proceedings” before

       the trial court. Tr. at 9, 14. Crain makes no specific challenge regarding the

       accuracy of the transcription, nor does he claim that he did not make the

       relevant statement. An effective best evidence objection “must identify an

       actual dispute over the accuracy of the secondary evidence.” Lopez v. State, 527

       N.E.2d 1119, 1125 (Ind. 1988). Moreover, Morris, having been a party to the

       conversation with Crain, has personal knowledge of the facts and would be

       permitted to testify regarding the contents of his conversation with Crain. See

       id. at 1125 (best evidence rule will not bar a witness’s testimony relating the

       contents of a recorded conversation). Under the circumstances, we decline

       Crain’s invitation to strike the statement on best evidence grounds. The

       statement is admissible, and the trial court abused its discretion in concluding

       otherwise.


            Section 2 – The trial court erred in granting summary
        judgment in favor of Crain because genuine issues of material
                            fact remain for trial.
[15]   Plaintiffs contend that the trial court erred in granting Crain’s summary

       judgment motion.


               We review such rulings de novo. Pursuant to Indiana Trial Rule
               56(C), a summary judgment movant must make a prima facie
               showing that there are no genuine issues of material fact and that
               it is entitled to judgment as a matter of law. If the movant

       Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017   Page 12 of 17
               satisfies this burden, the nonmoving party may not rest on its
               pleadings, but must designate specific facts demonstrating the
               existence of a genuine issue for trial. A “genuine issue” is one
               upon which the parties proffer differing accounts of the truth, or
               as to which conflicting inferences may be drawn from the parties’
               consistent accounts; a “material fact” is one that affects the
               outcome of the case. We must construe all evidence and resolve
               all doubts in favor of the non-moving party, so as to avoid
               improperly denying that party’s day in court. Summary
               judgment is not a summary trial, and it is inappropriate merely
               because the nonmoving party appears unlikely to prevail at trial.
               The party that lost in the trial court has the burden of persuading
               the appellate court that the trial court erred. Our review of a
               summary judgment motion is limited to those materials
               designated to the trial court. An appellate court may affirm
               summary judgment if it is proper on any basis shown in the
               record.


       Bah v. Mac's Convenience Stores, LLC, 37 N.E.3d 539, 546 (Ind. Ct. App. 2015)

       (citations and some quotation marks omitted), trans. denied (2016).


[16]   While federal practice permits the moving party to merely show that the party

       carrying the burden of proof lacks evidence on a necessary element, we impose

       a more onerous burden—to affirmatively negate an opponent’s claim. Hughley

       v. State, 15 N.E.3d 1000, 1004 (Ind. 2014). Only after the moving party carries

       its burden is the non-moving party then required to present evidence

       establishing the existence of a genuine issue of material fact. Knighten v. E.

       Chicago Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). “Summary judgment is a

       lethal weapon and courts must be mindful of its aims and targets and beware of

       overkill in its use.” Southport Little League v. Vaughan, 734 N.E.2d 261, 269 (Ind.


       Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017   Page 13 of 17
       Ct. App. 2000), trans. denied (2001). Indeed, “Indiana consciously errs on the

       side of letting marginal cases proceed to trial on the merits, rather than risk

       short-circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004.


[17]   Plaintiffs’ second amended complaint alleges numerous causes of action,

       including breach of contract, conversion, breach of fiduciary duty, and

       interference with a business relationship. For the purposes of summary

       judgment, Crain concedes that Plaintiffs can prove all the elements of each of

       their claims except for one element common to each claim: damages.5 Crain

       argues that his designated evidence demonstrates that Plaintiffs have not been

       harmed as a result of his actions but rather, even assuming that Plaintiffs had

       ownership interests in BioSafe, they have “been greatly benefited by not having

       to have suffered the significant investment losses” that Crain has sustained.

       Appellee’s Brief at 28. Accordingly, Crain contends that he has negated an

       essential element of each of Plaintiffs’ claims and thus, summary judgment in

       his favor is warranted. We cannot agree.



       5
         It is well settled that “[t]o recover for a breach of contract, a plaintiff must prove that: (1) a contract existed,
       (2) the defendant breached the contract, and (3) the plaintiff suffered damage as a result of the defendant’s
       breach.” Collins v. McKinney, 871 N.E.2d 363, 370 (Ind. Ct. App. 2007). “A prima facie case of conversion
       requires demonstration that the tortfeasor appropriated another’s personal property for the tortfeasor’s own
       use and benefit, in exclusion and defiance of the owner’s rights, and under an inconsistent claim of title.”
       Campbell v. Criterion Grp., 621 N.E.2d 342, 346 (Ind. Ct. App. 1993). With respect to a conversion claim,
       damages are restricted to actual losses sustained as a proximate result of the conversion. SJS Refractory Co. v.
       Empire Refractory Sales, Inc., 952 N.E.2d 758, 766 (Ind. Ct. App. 2011). A claim for breach of fiduciary duty
       requires proof of three elements: (1) the existence of a fiduciary relationship; (2) breach of the duty owed by
       the fiduciary to the beneficiary; and (3) harm to the beneficiary. Farmers Elevator Co. of Oakville, Inc. v.
       Hamilton, 926 N.E.2d 68, 79 (Ind. Ct. App. 2010), trans. denied. The elements of tortious inference with a
       business relationship are: (1) the existence of a valid relationship; (2) the defendant’s knowledge of the
       existence of the relationship; (3) the defendant’s intentional interference with that relationship; (4) the
       absence of justification; and (5) damages resulting from the defendant’s wrongful interference with the
       relationship. Levee v. Beeching, 729 N.E.2d 215, 222 (Ind. Ct. App. 2000).

       Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017                               Page 14 of 17
[18]   As the party moving for summary judgment, Crain must establish a prima facie

       case negating at least one of the dispositive elements of Plaintiffs’ claims. See

       Schmidt v. Ind. Ins. Co., 45 N.E.3d 781, 788 (Ind. 2015). Essentially, Crain’s “no

       damages” argument is this: BioSafe has been an unsuccessful business

       financially, so Plaintiffs cannot prove that they were harmed by being deprived

       of their ownership interests. Specifically, Crain designated financial statements

       and evidence indicating that BioSafe6 has realized net losses rather than profits

       since its formation and therefore, Plaintiffs cannot prove that they suffered

       damages as a result of Crain’s breach of any contract or duty and/or Crain’s

       interference with a business relationship or conversion of ownership rights.

       Crain’s argument oversimplifies the issue.


[19]   Merely alleging that Plaintiffs have not produced evidence of damages is

       insufficient to entitle Crain to summary judgment under Indiana law. See Jarboe

       v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).

       Our task on appeal is not to determine whether Plaintiffs have proven that they

       have suffered damages, we must determine whether Crain has adequately met

       his initial burden of proving that Plaintiffs have not suffered damages. The

       financial evidence designated by Crain is merely BioSafe’s financial balance

       sheet over a seven-year period. The designated evidence does not establish that

       BioSafe was without value when Plaintiffs were deprived of their ownership



       6
        In addition to financial information about BioSafe, the designated evidence also refers to Digestor, LLC,
       STI BioSafe, LLC, and STI Patent, LLC, which were separate entities formed after a restructuring of BioSafe
       at the end of 2007. Appellee’s App. at 95, 98-110.

       Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017                     Page 15 of 17
       interests or that Plaintiffs were not harmed by being deprived of such interests.

       Again, it is Crain’s burden on summary judgment to establish that BioSafe was

       without value, not Plaintiffs’ burden to prove that BioSafe had value.

       Moreover, BioSafe’s profitability or lack thereof since its formation is not the

       same as value. While BioSafe’s lack of profitability would be relevant to the

       amount of damages suffered by Plaintiffs, the business’s lack of profitability

       does not per se preclude damages. We conclude that Crain has not established

       a prima facie case negating an element of Plaintiffs’ claims and thus, the burden

       never shifted to Plaintiffs to present evidence establishing the existence of a

       genuine issue of material fact. In other words, summary judgment is not

       appropriate.


[20]   Moreover, even assuming that Crain met his initial burden of negating the

       damages element of Plaintiffs’ claims, Plaintiffs’ designated evidence in

       opposition to summary judgment is sufficient to create a genuine issue of

       material fact on the damages issue. As we discussed in section 1, Plaintiffs

       designated a statement by Crain regarding the value of the business in October

       2007. As an owner of BioSafe, Crain presumably possessed sufficient

       acquaintance with the business to estimate its value. His statement that the

       value of the business in October 2007 was around six million dollars is

       “sufficient, though minimally so, to raise a factual issue to be resolved at trial,

       and thus to defeat the … summary judgment motion.” Hughley, 15 N.E.3d at

       1004. Any lack of details to support his statement, or whether the statement is

       viewed as conclusory or speculative, goes to statement’s weight and credibility,


       Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017   Page 16 of 17
       not to whether it is adequate to create a question of fact. See Scott v. City of

       Seymour, 659 N.E.2d 585, 592-93 (Ind. Ct. App. 1995). It is well accepted that

       a designation of evidence in opposition to summary judgment need only clear a

       “low bar,” as we err “on the side of letting marginal cases proceed to trial on

       the merits.” Hughley, 15 N.E.3d at 1004. Viewing the facts in the light most

       favorable to Plaintiffs, as we must, there is conflicting evidence on the material

       issue of whether BioSafe had any value at the time the Plaintiffs were deprived

       of their ownership interests and the damages incurred by the Plaintiffs as a

       result, making summary judgment inappropriate.7


[21]   The trial court erred in granting summary judgment in favor of Crain. We

       therefore reverse the trial court’s judgment and remand for further proceedings.


[22]   Reversed and remanded.


       Kirsch, J., and May, J., concur.




       7
         Crain cites and relies heavily on Rauch v. Circle Theatre, 176 Ind. App. 130, 139-40, 374 N.E.2d 546, 553
       (1978), as an example of a breach of contract action where, despite a clear breach by the defendant, the trial
       court concluded that the plaintiffs failed to prove that they suffered any damages as a result of the breach.
       Rauch is factually distinguishable and inapposite to the instant case. Moreover, we note that Rauch involved
       a failure of proof following a full trial on the merits, not a summary judgment.



       Court of Appeals of Indiana | Opinion | 32A05-1604-PL-761 | March 7, 2017                        Page 17 of 17
