MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Jun 24 2019, 8:18 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Candace A. Bankovich                                     Kyle C. Persinger
Neal Bowling                                             Michael T. Hotz
Indianapolis, Indiana                                    Rebecca M.S. Johnson
                                                         Marion, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven L. McAtee,                                        June 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PL-2526
        v.                                               Appeal from the Grant Superior
                                                         Court
Arletty Ivisa Huber,                                     The Honorable Jeffrey D. Todd,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         27D01-1505-PL-42



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019                Page 1 of 17
                                                Case Summary


[1]   Arletty Ivisa Huber and Steven L. McAtee jointly formed McAtee Excavating

      Commercial and Residential Services, LLC (the Business) in 2012, with Huber

      personally financing the substantial start-up costs for the Business and McAtee

      providing the labor. At some point, while still a member of the Business,

      McAtee established a new company, McAtee Foundation Solutions, LLC (the

      New Business) for which he performed the same type of work using equipment

      owned by the Business. He did not account to the Business for the proceeds he

      received in compensation for his work through the New Business.


[2]   In 2015, Huber filed a complaint against McAtee for breach of fiduciary duty.

      She sought both damages and injunctive relief. Over the next three years,

      McAtee consistently failed to comply with an agreed preliminary injunction

      order and to respond to discovery requests, despite court orders to do both.

      Huber filed a motion for summary judgment in 2018, along with designated

      evidence and a memorandum of law. McAtee did not respond to the motion,

      designate evidence, or appear at the summary judgment hearing. The trial

      court granted summary judgment in favor of Huber and awarded her over

      $750,000. The court also entered a preliminary injunction and scheduled a

      hearing on a permanent injunction.


[3]   After the entry of summary judgment, McAtee retained counsel and filed a

      number of motions. Included among these was an emergency motion to

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 2 of 17
      dissolve the preliminary injunction and to dissolve the Business pursuant to Ind.

      Code § 23-18-9-2, which the trial court granted. Thereafter, Huber and McAtee

      each filed a motion to correct error. Following a hearing, the trial court denied

      the motions to correct error.


[4]   On appeal, McAtee challenges as inadmissible much of the evidence designated

      by Huber in support of her summary judgment motion. He also claims that this

      evidence, even if admissible, was insufficient to make a prima facie showing

      that she was entitled to summary judgment.


[5]   We affirm.


                                       Facts & Procedural History


[6]   The designated evidence establishes that Huber and McAtee formed the

      Business by entering into an operating agreement (the Operating Agreement) on

      March 10, 2012. Pursuant to the Operating Agreement, Huber owned 51% and

      McAtee owned 49% of the Business. The Operating Agreement provided for

      dissolution of the Business upon certain specified events, including a two-thirds

      vote of the members or a judicial decree of dissolution pursuant to the Indiana

      Limited Liability Company Act. There would be, according to the agreement,

      no automatic dissolution upon the disassociation or withdrawal of a member.


[7]   The primary purpose of the Business was to:


              perform foundation, basement, and concrete work; repair
              cracked, bowed basement walls; foundation repairs; repair
              leaking basement walls and wet crawl spaces; concrete baking,

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 3 of 17
               pole barn pads, and augured holes; septic systems, sewer lines,
               and drain lines; driveways, parking lots, and driveway grading;
               and top soil, fill dirt, ponds, finish grading and seeding.


       Appellant’s Appendix Vol. II at 83. Huber personally financed all costs for starting

       the Business, including the down payments for several pieces of excavating

       equipment. McAtee performed the labor for the Business and funds received on

       invoices were deposited into the Business’s bank account at MutualBank. The

       Business advertised its services, along with an address and phone number, in

       the local newspaper.


[8]    At some point in 2014, McAtee began performing the same type of work as the

       Business, utilizing the excavating equipment of the Business and the same

       address and phone number, but failed to deposit or otherwise account to the

       Business for the proceeds. He created the New Business in late 2014 and

       opened a bank account at MutualBank for the New Business on December 18,

       2014. Beginning in January 2015, McAtee made significant deposits into this

       new bank account each month. He did all of this without seeking to dissolve

       the Business pursuant to the Operating Agreement.


[9]    On May 19, 2015, Huber filed the instant complaint, alleging that McAtee was

       directly competing against the Business in which he remained a member.

       Huber sought damages and injunctive relief based on her claims of statutory

       and common law breach of fiduciary duty.


[10]   The parties entered into an agreed order on preliminary injunction (the Agreed

       Order), which the trial court approved on October 21, 2015. The Agreed Order
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 4 of 17
provided that McAtee “shall be permitted to continue to perform excavating

work” and shall use the Business’s excavating equipment only pursuant to the

terms of the court’s order. The Agreed Order set out strict conditions for

McAtee’s continued excavating work, including:


        a. McAtee shall provide to Huber by October 22, 2015, through
        their respective counsel, a copy of all estimates for Work that
        McAtee is presently performing … or for which McAtee will
        begin performance …, together with any future estimates for
        Work within 5 business days of providing such an estimate to
        any prospective customer;


        b. McAtee shall provide to Huber within 5 business days … a
        copy of each and every invoice which McAtee submits to any
        customer … for any Work performed by McAtee;


        c. McAtee shall provide to Huber … a true and accurate copy of
        any check, or money order, or in the event an invoice is paid in
        cash, a true and accurate copy of the receipt provided to the
        customer … for any Work performed by McAtee;


        d. McAtee shall provide … names, addresses and phone numbers
        for each and every customer for whom McAtee shall perform
        Work …;


        e. All net proceeds received by McAtee on after [sic] October 15,
        2015 for Work performed by McAtee shall be immediately
        deposited in the trust account of his counsel … to be distributed
        49% to McAtee and 51% to Huber until final disposition of this
        matter;


        f. McAtee shall provide … a full and accurate accounting for all
        Work he is performing … or will perform … within 5 business

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 5 of 17
               days of receipt of payment by McAtee for all Work performed by
               McAtee.


       Appellee’s Appendix Amended Vol. II at 2-4. In order to continue using the

       Business’s excavating equipment, the Agreed Order required McAtee to provide

       “a weekly report on the hours the Excavator, Bobcat and Tractor have been

       used during the week and the number of miles that the Dump Truck has been

       driven each week, which report shall include date stamped photographs of such

       hours and mileage.” Id. at 4. Further, the order provided: “This Agreement

       shall be in full force and effect until the Court issues its final judgment on

       Huber’s Complaint, the parties notify the Court of a modification …, or the

       parties notify the Court of a settlement ….” Id. at 5.


[11]   McAtee ignored the Agreed Order, which resulted in Huber filing a petition for

       rule to show cause in October 2016. In her petition, Huber alleged that McAtee

       had not provided any estimates, invoices, or copies of payments. Further,

       despite their agreement to split the net proceeds of his work during the

       pendency of the proceedings, no proceeds had been distributed to Huber and

       Huber believed that no deposits had been made into the trust account. Based

       on financial documents obtained by Huber through a non-party request for

       documents, Huber alleged that McAtee had made deposits into the New

       Business’s bank account at MutualBank in the approximate amount of

       $354,000 since the Agreed Order was issued.


[12]   Following a hearing on Huber’s petition for rule to show cause, as well as a

       motion to compel discovery, the trial court issued an order on November 30,
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 6 of 17
       2016. The trial court ordered McAtee to respond to Huber’s pending written

       discovery requests by December 31, 2016. The court also found McAtee in

       contempt for failing to comply with the Agreed Order. As a result, the court

       ordered McAtee to immediately surrender possession of the Business’s

       excavating equipment to Huber. As a further sanction for his discovery

       violations and failure to abide by the Agreed Order, the court ordered McAtee

       to pay attorney fees in the amount of $1500 to Huber’s counsel.


[13]   On January 10, 2017, Huber filed another petition for rule to show cause,

       alleging that McAtee had failed to respond to discovery requests and had

       provided no documentation pursuant to the Agreed Order. Following a

       hearing, the trial court issued an order on March 6, 2017, ordering McAtee to

       fully comply with all outstanding discovery requests by March 8, 2017 and to

       comply with all provisions of the Agreed Order. The court also assessed

       attorney fees against McAtee.


[14]   After a number of continuances, a bench trial was scheduled to start December

       5, 2017. On November 28, 2017, McAtee’s attorney filed a motion to withdraw

       appearance and a motion to continue the trial date to give McAtee an

       opportunity to obtain new counsel. 1 The trial court granted the motion to




       1
         McAtee’s counsel, Tia Brewer, had been found in possession of cocaine, marijuana, and drug paraphernalia
       in May 2017, which resulted in charges and an eventual guilty plea. See Matter of Brewer, 110 N.E.3d 1141
       (Ind. 2018) (disciplinary action in which Brewer was suspended from the practice of law in Indiana for at
       least three years without automatic reinstatement). Due to these personal issues, counsel was absent from
       her practice for six months and, thus, unaware of the December 2017 trial date until just before she filed the
       motions to withdraw and to continue.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019                    Page 7 of 17
       withdraw that same day and scheduled a hearing on the motion to continue.

       On December 1, 2017, the trial court continued the trial to May 9, 2018, over

       Huber’s objection.


[15]   On December 5, 2017, Huber sent a second request for admissions to McAtee,

       to which he never responded. Upon motion by Huber and following a hearing

       at which McAtee failed to appear, the trial court issued an order on March 6,

       2018, finding that the second request for admissions and all of its attached

       documents were deemed admitted as against McAtee. Among these

       admissions was an admission that McAtee had used the Business’s excavating

       equipment for the benefit of the New Business.


[16]   Thereafter, on March 30, 2018, Huber filed a motion for summary judgment

       and injunctive relief. She designated her own affidavit, along with numerous

       other supporting documents, and provided the trial court with a detailed

       memorandum of law in support of her motion. The trial court scheduled a

       summary judgment hearing for May 4, 2018. McAtee did not respond to the

       summary judgment motion, designate evidence, or show up at the hearing,

       which was held in his absence.


[17]   On May 10, 2018, the trial court issued its order granting summary judgment in

       favor of Huber and awarding her over $750,000 in damages. The damage

       amount was calculated by applying Huber’s 51% interest to amounts deposited

       into the New Business’s bank account between December 2014 and October

       2017, which totaled nearly $1.5 million. Additionally, the trial court entered a


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 8 of 17
       preliminary injunction enjoining McAtee from “continuing to perform

       foundation, basement, and/or concrete work on behalf of himself or any

       business.” Appellant’s Appendix Vol. II at 29-30. The court scheduled a

       permanent injunction hearing for June 8, 2018, which was later continued.


[18]   McAtee retained counsel after the entry of summary judgment. On June 11,

       2018, he filed a motion to reconsider (improperly designated as a motion to

       correct error 2), arguing that Huber failed to designate admissible evidence

       sufficient to make a prima facie showing that she was entitled to summary

       judgment. Thereafter, on July 3, 2018, McAtee filed an emergency motion to

       dissolve the preliminary injunction and to dissolve the Business pursuant to Ind.

       Code § 23-18-9-2, 3 which the trial court granted on July 20, 2018. By the same

       order, the trial court vacated the permanent injunction hearing.


[19]   Both parties timely filed motions to correct error, with Huber challenging the

       dissolution of the Business and McAtee challenging the summary judgment

       order. The trial court summarily denied both motions following a hearing on

       September 19, 2018. McAtee now appeals. Additional information will be

       provided below as needed.




       2
         “[M]otions to correct error are proper only after the entry of final judgment; any such motion filed prior to
       the entry of final judgment must be viewed as a motion to reconsider.” Snyder v. Snyder, 62 N.E.3d 455, 458
       (Ind. Ct. App. 2016).
       3
         On application by a member, a court “may decree dissolution of the limited liability company whenever it
       is not reasonably practicable to carry on the business in conformity with the … organization or operating
       agreement.” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019                       Page 9 of 17
                                             Standard of Review


[20]   We review a summary judgment ruling de novo, applying the same standard as

       the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). That is,

       drawing all reasonable inferences in favor of the non-moving party, summary

       judgment is appropriate if the designated evidence shows that there is no

       genuine issue as to any material fact and that the moving party is entitled to

       judgment as a matter of law. Id.; Ind. Trial Rule 56(C).


               A party moving for summary judgment bears the initial burden of
               showing no genuine issue of material fact and the
               appropriateness of judgment as a matter of law. If the movant
               fails to make this prima facie showing, then summary judgment
               is precluded regardless of whether the non-movant designates
               facts and evidence in response to the movant’s motion.


       Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind. 2005); see also

       Knowledge A-Z, Inc. v. Sentry Ins., 857 N.E.2d 411, 419 (Ind. Ct. App. 2006),

       trans. denied.


[21]   In ruling on summary judgment, a court may consider only admissible evidence

       designated to the court. See Hays v. Harmon, 809 N.E.2d 460, 465-66 (Ind. Ct.

       App. 2004) (“Because the court may consider only admissible evidence when

       ruling on a motion for summary judgment, inadmissible hearsay statements

       cannot create a genuine issue of material fact.”), trans. denied. Further,

       affidavits designated on summary judgment “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 to the matters
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 10 of 17
       stated therein.” T.R. 56(E). Although mere assertions of law or opinions will

       not suffice, “[a]n affidavit need not contain an explicit recital of personal

       knowledge when it can be reasonably inferred from its contents that the

       material parts thereof are within the affiant’s personal knowledge.” Kader v.

       State, Dep’t of Correction, 1 N.E.3d 717, 723-24 (Ind. Ct. App. 2013) (quoting

       Decker v. Zengler, 883 N.E.2d 839, 844 (Ind. Ct. App. 2008), trans. denied).


                                           Discussion & Decision


[22]   On appeal, McAtee seeks to have the trial court’s summary judgment order

       reversed. He contends that much of the designated evidence was inadmissible

       and, thus, improperly considered by the court and that Huber failed to present a

       prima facia case establishing her entitlement to summary judgment.


[23]   We turn first to his evidentiary arguments. McAtee contends that Huber’s

       affidavit (Exhibit A) “was replete with speculation and conclusory statements

       not based upon her personal knowledge.” Appellant’s Brief at 12. Despite this

       broad assertion, however, McAtee challenges only the following three

       paragraphs of the affidavit:


               11. McAtee eventually began performing the same type of work
               as the Business utilizing the Excavating Equipment and failed to
               deposit or otherwise account to the Business for the proceeds he
               received in compensation for completing said work.


                                                       ****




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 11 of 17
               16. McAtee began depositing the proceeds of his work into a new
               account in the new LLC’s name held by MutualBank as
               account…. Attached is a true and accurate copy of the “New
               Account Information” form for this account along with the
               applicable Business Records Certification attached hereto and
               incorporated as Exhibit “J”.


               17. True and accurate copies of statements of [the New
               Business’s] MutualBank account are attached hereto and
               incorporated herein, along with the applicable business records
               certifications, as Exhibit “K”.


       Appellant’s Appendix Vol. II at 84-85.


[24]   Further, McAtee challenges the admissibility of three other items of designated

       evidence – an advertisement in the local newspaper for the New Business from

       November 2016 (Exhibit I) and bank records from MutualBank for the New

       Business (Exhibits J and K). McAtee argues that the documents contained in

       these exhibits constitute hearsay and do not fall within the business records

       exception to the hearsay rule, Ind. Rule of Evidence 803(6), because the

       business records certification attached to each of the exhibits was deficient.


[25]   On its face, the evidence designated by Huber with her motion for summary

       judgment appears properly submitted and admissible. Her affidavit presents

       facts generally based on personal knowledge and does not rest on mere

       assertions of law or opinions. Moreover, Huber’s personal knowledge

       regarding McAtee’s new business pursuits using the Business’s excavating

       equipment for his own personal gain can be reasonably inferred. These

       statements are also supported by other designated evidence referenced in her
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 12 of 17
       affidavit and by McAtee’s own admission that he used the Business’s

       excavating equipment for the New Business. Indeed, the Agreed Order entered

       early in the case allowed McAtee to use this equipment and continue doing

       excavating work.


[26]   McAtee’s belated and rather technical attack of this evidence is not well taken.

       He had every opportunity to challenge Huber’s designated evidence either by

       designating his own evidence or moving to strike her evidence at or before the

       summary judgment hearing. Instead, McAtee chose not to participate in the

       summary judgment proceedings, which occurred just days before the scheduled

       trial. He cannot now be heard to complain that this evidence was considered

       by the trial court on summary judgment. See Paramo v. Edwards, 563 N.E.2d

       595, 600 (Ind. 1990) (“defendants did not file any motion to strike or object to

       any portions of the Cohen affidavit during the summary judgment proceedings”

       and Supreme Court “declin[ed] to excuse the lack of timely objection”); see also

       Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d 738, 749 (Ind. 1999)

       (“An affidavit which does not satisfy the requirements of T.R. 56(E) is subject

       to a motion to strike, and formal defects are waived in the absence of a motion

       to strike or other objection.”) (quoting Gallatin Group v. Central Life Assurance

       Co., 650 N.E.2d 70, 73 (Ind. Ct. App. 1995)); Lewis v. State, 511 N.E.2d 1054,

       1057 (Ind. 1987) (evidentiary challenge raised for the first time in motion to

       correct error was not timely raised at trial and, thus, allegation of error was

       waived for purposes of appellate review); Matter of S.L., 599 N.E.2d 227, 229




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 13 of 17
       (Ind. Ct. App. 1992) (“A party may not raise an issue for the first time in her

       motion to correct errors or on appeal.”).


[27]   In the alternative, McAtee argues that even if all of the designated evidence is

       admissible, it does not establish a prima facie case for Huber. He contests both

       the conclusion that he breached a fiduciary duty and the amount of damages.


[28]   To obtain summary judgment on her breach of fiduciary duty claim, Huber’s

       designated evidence needed to show: “(1) the existence of a fiduciary

       relationship; (2) a breach of that duty owed by the fiduciary to the beneficiary;

       and (3) harm to the beneficiary.” Rapkin Grp., Inc. v. Cardinal Ventures, Inc., 29

       N.E.3d 752, 757 (Ind. Ct. App. 2015), trans. denied.


[29]   As a closely-held corporation, the members of the Business – Huber and

       McAtee – had a fiduciary duty to deal fairly not only with the corporation but

       with each other. See DiMaggio v. Rosario, 52 N.E.3d 896, 905 (Ind. Ct. App.

       2016), trans. denied. “Shareholders in a closely-held corporation stand in a

       fiduciary relationship to each other, such that they must deal fairly, honestly,

       and openly with the corporation and with their fellow shareholders.” Id. at 907.

       This includes “a fiduciary duty not to appropriate to his own use a business

       opportunity that in equity and fairness belongs to the corporation.” Id.


[30]   The designated evidence establishes that Huber and McAtee created the

       Business by executing the Operating Agreement. The parties, as sole members

       of the Business, started operating under this agreement in early 2012, with

       Huber expending significant personal funds to start the Business and McAtee

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 14 of 17
       providing the labor. Around late 2014, McAtee began using the Business’s

       excavating equipment for his own business pursuits without communicating to

       Huber a desire to dissolve the Business or otherwise initiating dissolution under

       the express terms of the Operating Agreement. McAtee eventually formed the

       New Business, which provided the same services and used the same address

       and phone number as the Business. McAtee deposited approximately $1.5

       million dollars into the New Business’s bank account between December 2014

       and October 2017. 4 These facts amply establish a prima facie case that McAtee

       owed Huber a fiduciary duty, breached that duty, and caused her harm.


[31]   On appeal, McAtee argues that his actions manifested his intention to abandon

       the Business and that once Huber knew that he had abandoned the Business,

       which he claims was well before the complaint was filed, he became free to

       pursue his own business interests. This argument suffers from, at least, two

       fatal flaws. First, the argument was not asserted below – not even untimely in

       his motion to correct error. Therefore, this new issue is waived. Second, the

       Operating Agreement provided for dissolution of the Business only upon

       certain specified events, including a vote of the members or a judicial decree of

       dissolution. There would be, according to the Operating Agreement, no

       automatic dissolution upon the disassociation or withdrawal of a member.




       4
         Much of this time, from October 2015, the Agreed Order was in effect, which allowed McAtee to continue
       using the excavating equipment to perform the same work as the Business but with several caveats, including
       that funds were to be fully accounted for and deposited in a trust account. McAtee, however, wholly failed
       to comply with the Agreed Order.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019                 Page 15 of 17
       Here, McAtee did not expressly seek dissolution until he filed his emergency

       motion to judicially dissolve the Business in July 2018. Therefore, he cannot be

       heard to complain, belatedly, that he did not owe a fiduciary duty to Huber

       after he abandoned the Business by his actions. 5


[32]   Finally, McAtee challenges the amount of the damages award. He contends

       that Exhibits J and K, the bank records for the New Business, were insufficient

       to establish that Huber was entitled to damages in the amount of $750,220.46.

       In this regard, McAtee observes that the bank records do not establish the

       source of the deposits or whether the deposits were revenue or profits.


[33]   Exhibit J establishes that McAtee opened a new bank account at MutualBank

       for the New Business on December 18, 2014. He listed himself as the president

       and Kathie L. McAtee as the vice president of the New Business. With regard

       to the business entity information on the document, McAtee used the same

       address as that of the Business and indicated that the filing date in Indiana for

       the New Business was August 22, 2014.


[34]   Exhibit K contained account statements for the New Business from December

       2014 through October 2017. The statements documented total deposits for the

       New Business of nearly $1.5 million dollars over this time period, of which the




       5
        McAtee’s reliance on DiMaggio is misplaced. In that case, Rosario and DiMaggio had an oral contract with
       no specific agreement regarding dissolution of their closely-held corporation. Rosario eventually sent a letter
       of abandonment to DiMaggio and made clear his commitment to abandoning the joint business venture.
       When Rosario then acted consistently with that intent, DiMaggio acquiesced and did not file suit against
       Rosario for more than six years. We find the facts of DiMaggio distinguishable from the case at hand.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019                    Page 16 of 17
       trial court awarded Huber 51%. The record establishes that Huber’s attempts to

       obtain additional financial information, such as invoices and receipts for the

       New Business, were thwarted at every turn by McAtee. He did not respond to

       discovery requests and did not comply with the Agreed Order. His blatant

       defiance of court orders cannot be countenanced, and his claim that Huber

       failed to establish his actual profits from these deposits is disingenuous.


[35]   McAtee chose not to respond to the summary judgment motion or to designate

       evidence regarding damages. The trial court’s damage award was within the

       scope of the evidence, and we reject McAtee’s invitation to assume that there

       exists evidence regarding expenses that is nowhere found in the record.


[36]   McAtee pleads in his reply brief: “McAtee simply asks for his day in court. He

       seeks the chance to have this matter returned to the Trial Court so that it may

       be litigated on the merits.” Appellant’s Reply Brief at 7. We observe, however,

       that McAtee had ample opportunity for his day in court but rather chose to

       snub the judicial process for years. He is not entitled to a second chance.


[37]   Judgment affirmed.


       Kirsch, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2526 | June 24, 2019   Page 17 of 17
