MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral                                   FILED
estoppel, or the law of the case.                                    Mar 18 2020, 9:59 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANTS
Robert J. Palmer
May • Oberfell • Lorber
Mishawaka, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Stanley C. Kinkade and Sherry                            March 18, 2020
Kinkade,                                                 Court of Appeals Case No.
Appellants-Plaintiffs,                                   19A-CC-2565
                                                         Appeal from the Madison Circuit
        v.                                               Court
                                                         The Honorable Andrew R.
Jason Silvey and Jennifer Silvey,                        Hopper, Judge
                                                         The Honorable Christopher A.
Appellees-Defendants.
                                                         Cage, Master Commissioner
                                                         Trial Court Cause No.
                                                         48C03-1601-CC-19



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020                Page 1 of 10
                                              Case Summary
[1]   Stanley and Sherry Kinkade (collectively, “Appellants”) purchased a trailer

      from Jason and Jennifer Silvey (collectively, “Appellees”) during the early part

      of 2015. At some point after completing the purchase, Appellants discovered

      damage to the trailer, which they claim should have been disclosed by

      Appellees at the time of the sale. In January of 2016, Appellants filed suit

      against Appellees, alleging misrepresentation and breach of contract.

      Following a bench trial, the trial court entered judgment in favor of Appellees.

      Appellants challenge the trial court’s judgment, arguing that they proved their

      claims against Appellees. Because we disagree, we affirm.



                              Facts and Procedural History                                    1




[2]   The trial court’s presentation of the underlying facts provide as follows: In late

      January/early February of 2015, Appellees sold a Coachman camper trailer to

      Appellants. The trailer was approximately seven years old and was located in

      the Dry Dock Campground in Huntington. Appellees cited their declining use

      of the trailer as the reason behind their decision to sell it. Appellants sought to

      purchase the trailer in order to spend more time with family “already located in

      the campground.” Appellants’ App. Vol. II p. 17.




      1
        Appellants rely on the trial court’s factual findings in their statement outlining what they deem to be the
      relevant facts. Given that the parties have not provided this court with a copy of the transcript of the July 31,
      2019 bench trial, we will do the same.

      Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020                      Page 2 of 10
[3]   Per campground rules, the sale of any trailer, which was sold and was to remain

      at the campground, was required to be conducted through the campground

      owner Kay Fetter as the go between. In that capacity, Fetter handled

      communications and paperwork related to the transaction in exchange for a ten

      percent commission. After learning of Appellees’ intent to sell the trailer, Fetter

      inquired as to whether Appellees had noticed any leaks or other problems.

      Jennifer Silvey replied that “everything works inside and there has [sic] been no

      leaks.” Appellants’ App. Vol. II p. 17.


[4]   Appellees last used the trailer in warmer weather and with all sides extended in

      the Fall of 2014. Appellants went to the campground and viewed the trailer in

      January of 2015. At the time, it was very cold and “no electricity was active to

      the trailer.” Appellants’ App. Vol. II p. 18. Also at the time of the viewing,

      Fetter conveyed Jennifer Silvey’s statement regarding the condition of the

      trailer to Appellants and the record indicates that the floors of the trailer were

      hard. Appellants walked around the entire trailer and did not notice any

      damage or problems with Sherry Kinkade saying “everything looked good.”

      Appellants’ App. Vol. II p. 18. Appellants did not, however, extend the slide

      outs or ask that they be extended.


[5]   After purchasing the trailer, Appellants next visited the trailer in either March

      or April of 2015. On this visit, they extended the sides of the trailer and found a

      large mushroom growing but did not notice any other problems apart from “a

      mildew smell.” Appellants’ App. Vol. II p. 19. However, Appellants claim that

      the next morning they discovered “a moldy smell” and “soft spots” in the floor

      Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020   Page 3 of 10
      under the carpeting. Appellants’ App. Vol. II p. 19. A week or so later, Fetter

      inspected the trailer. She observed that the carpet and flooring felt soft but did

      not notice any smell or odor. Appellants subsequently determined that they

      were unable to use the trailer due to the damage.


[6]   In January of 2016, Appellants filed suit against Appellees, alleging

      misrepresentation and breach of contract. A bench trial was held on July 31,

      2019, during which the parties offered competing expert testimony regarding

      the cause of the damage. On August 26, 2019, the trial court entered judgment

      in favor of Appellees. Appellants subsequently filed a motion to correct error,

      which was denied by the trial court on October 5, 2019.



                                Discussion and Decision
[7]   Initially, we note that Appellees have not filed an appellate brief.


              “When the appellee has failed to submit an answer brief we need
              not undertake the burden of developing an argument on the
              appellee’s behalf.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065,
              1068 (Ind. 2006). “Rather, we will reverse the trial court’s
              judgment if the appellant’s brief presents a case of prima facie
              error.” Id. (citing Gibson v. City of Indpls., 242 Ind. 447, 448, 179
              N.E.2d 291, 292 (1962)). “Prima facie error in this context is
              defined as, ‘at first sight, on first appearance, or on the face of
              it.’” Id. (citing Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct.
              App. 1999)). “Where an appellant is unable to meet this burden,
              we will affirm.” Id.


      Fifth Third Bank v. PNC Bank, 885 N.E.2d 52, 54 (Ind. Ct. App. 2008).


      Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020   Page 4 of 10
[8]   Appellants indicate that the trial court’s factual findings and conclusions

      thereon were entered sua sponte. In such cases, “‘the findings control our review

      and the judgment only as to the issues those specific findings cover. Where

      there are no specific findings, a general judgment standard applies and we may

      affirm on any legal theory supported by the evidence adduced at trial.’” Estate

      of Henry v. Woods, 77 N.E.3d 1200, 1204 (Ind. Ct. App. 2017) (quoting Samples

      v. Wilson, 12 N.E.3d 946, 949–50 (Ind. Ct. App. 2014)).


              We apply a two-tier standard of review to the sua sponte findings
              and conclusions. [Samples, 12 N.E.3d] at 950. First, we
              determine whether the evidence supports the findings and
              second, whether the findings support the judgment. Id. We will
              set aside findings and conclusions only if they are clearly
              erroneous, that is, when the record contains no facts or inferences
              supporting them. Id. In conducting our review, we consider only
              the evidence favorable to the judgment and all reasonable
              inferences flowing therefrom. Id. We do not reweigh the
              evidence nor do we assess witness credibility. Id.


      Id.


[9]   Further, because Appellants did not prevail at trial, they appeal from a negative

      judgment.


              A judgment entered against a party who bore the burden of proof
              at trial is a negative judgment. Garling v. Ind. Dep't of Natural Res.,
              766 N.E.2d 409, 411 (Ind. Ct. App. 2002). On appeal, we will
              not reverse a negative judgment unless it is contrary to law.
              Mominee v. King, 629 N.E.2d 1280, 1282 (Ind. Ct. App. 1994).
              To determine whether a judgment is contrary to law, we consider
              the evidence in the light most favorable to the appellee, together

      Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020   Page 5 of 10
                with all the reasonable inferences to be drawn therefrom. J.W. v.
                Hendricks Cnty. Office of Family & Children, 697 N.E.2d 480, 482
                (Ind. Ct. App. 1998). A party appealing from a negative
                judgment must show that the evidence points unerringly to a
                conclusion different than that reached by the trial court.
                Mominee, 629 N.E.2d at 1282.


       Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977 N.E.2d 1, 4 (Ind. Ct. App.

       2012).


                                       I. Misrepresentation
[10]   Appellants contend that the trial court erred in finding that they failed to prove

       their claim of misrepresentation. We note that while Appellants’ appellate brief

       presents their misrepresentation claim as a claim of negligent misrepresentation,

       both the trial court’s judgment and Appellants’ trial brief treat the

       misrepresentation claim as one of fraudulent misrepresentation. Given that

       Appellants and the trial court treated the misrepresentation claim as a claim of

       fraudulent misrepresentation at the trial-court level, we will treat the claim as

       such on appeal.


[11]            [T]o establish a cause of action for fraudulent misrepresentation
                Buyer must demonstrate: (1) Sellers made false statements of
                past or existing material facts; (2) Sellers made such statements
                knowing them to be false or made them recklessly without
                knowledge as to their truth or falsity; (3) Sellers made the
                statements to induce Buyer to act upon them; (4) Buyer
                justifiably relied and acted upon the statements; and, (5) Buyer
                suffered injury.




       Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020   Page 6 of 10
       Verrall v. Machura, 810 N.E.2d 1159, 1162 (Ind. Ct. App. 2004). In entering

       judgment in favor of Appellees, the trial court determined that while Appellants

       successfully proved the first, third, fourth, and fifth elements, Appellants failed

       to prove the second element, i.e., that Appellees made the statements regarding

       the condition of the trailer “knowing them to be false or made them recklessly

       without knowledge as to their truth of falsity.” Id. Appellants assert that this

       determination is clearly erroneous. We disagree.


[12]   With respect to the second element, the trial court reached the following

       conclusion:


               Now turning to the second and dispositive element concerning
               whether [Appellees’] statements were made by them knowing
               them to be false or recklessly without knowledge as to their truth
               or falsity. Put differently, it is not enough for [Appellants] to
               establish that the leak had be going on for a long time prior to the
               sale. They must prove that [Appellees] had actual knowledge or
               should have had knowledge of the damage at the time of the
               representations.

               Based upon the record presented to the Court, it cannot conclude
               that [Appellants] established by a preponderance standard; that
               [Appellees] had actual knowledge of the structural problems with
               the trailer at the time they sold the trailer to [Appellants]. There
               was no evidence presented by [Appellants] to show that
               [Appellees’] denials of any knowledge of leaks prior to the sale
               was intentionally or recklessly made. Jason Silvey testified
               emphatically that he never observed any evidence of any leaks;
               nor repaired any stains or other damage by water. No evidence
               of prior repairs, or prior damage was tendered. [Appellants’]
               expert witness acknowledged that even if the damage had
               occurred over a long period of time, the evidence of that damage

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020   Page 7 of 10
        can appear over a short period of time if the conditions are right.

        Failing the establishment of actual knowledge, the burden of
        proof was upon [Appellants] to alternatively establish that
        [Appellees] should have known of the existence of leaks or
        damage to the trailer; or that their statements were recklessly
        made. The Court finds that [Appellants] did not present
        sufficient direct or circumstantial evidence to meet this burden
        concerning the pre-sale condition of the trailer. No eyewitnesses,
        photographs, documentation ever were presented to prove to the
        Court that [Appellees] had prior knowledge that the existence of
        a leak or damage was present. Further, the only visible damage
        other than the mushroom in the slide out was that damage [that]
        was visible after the carpet was pulled up. There was no
        evidence that [Appellees] ever had reason to pull up or replace
        carpet or that the mushroom which was found growing, was
        present at the time [Appellees’] closed the trailer for the fall of
        2014.

        The absence of evidence that [Appellees] knew or ought to have
        known of the damage to the floor of the camper or the
        mushroom is fatal to [Appellants’] ability to prevail under a
        theory of fraud.


Appellants’ App. Vol. II pp. 22–23. Again, Appellants bore the burden to prove

that the evidence points “unerringly to a conclusion different than that reached

by the trial court.” Smith, 977 N.E.2d at 4. Appellants have failed to carry this

burden. As such, based on the limited record presented on appeal, we cannot

say that the trial court’s conclusions are clearly erroneous.




Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020   Page 8 of 10
                                      II. Breach of Contract
[13]   Appellants also contend that the trial court erred by failing to rule on their

       breach-of-contract claim. Specifically, Appellants argue that their trial brief

       “addressed only one of the two causes of action raised in their Complaint, i.e.

       breach of contract.… Despite [Appellants’] focus on the breach of contract

       claim, the trial court’s Judgement in favor of [Appellees] does not mention the

       breach of contract claim.” Appellants’ Br. p. 12. Appellants’ trial brief,

       however, did not address a breach-of-contract claim but rather included a

       detailed discussion of a prior decision involving a breach-of-warranty claim.

       Appellants’ App. Vol. II pp. 30–34 (discussing Art Hill, Inc. v. Heckler, 457

       N.E.2d 242 (Ind. Ct. App. 1983)). We have previously noted that “[a]lthough

       closely related, the two actions are not identical.” Nelson v. Marchand, 691

       N.E.2d 1264, 1271 n.8 (Ind. Ct. App. 1998). As such, we cannot agree with

       Appellants’ assertion that their trial brief addressed their breach-of-contract

       claim.


[14]   Further, as is noted above in footnote 1, the parties did not provide us with a

       copy of the transcript of the bench trial. Thus, while Appellants’ complaint for

       damages includes a breach-of-contract claim, we are unable to determine from

       the record presented on appeal whether Appellants fully developed this claim

       before the trial court. Without some indication from the record that Appellants




       Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020   Page 9 of 10
       did develop the breach-of-contract claim, we are unable to conclude that the

       trial court erred by failing to include a ruling on this claim in its judgment. 2


[15]   The judgment of the trial court is affirmed.


       Robb, J., and Altice, J., concur.




       2
         Furthermore, we do not agree with Appellants’ assertion that the trial court’s factual findings “establish
       [Appellees’] liability for breach of contract.” Appellants’ Br. p. 8.

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-2565 | March 18, 2020                    Page 10 of 10
