      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                    FILED
      regarded as precedent or cited before any
      court except for the purpose of establishing                        Dec 29 2016, 8:28 am

      the defense of res judicata, collateral                                  CLERK
                                                                           Indiana Supreme Court
      estoppel, or the law of the case.                                       Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Thomas K. Hoffman                                       Francis A. Veltri
      Merrillville, Indiana                                   Merrillville, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Douglas K. Hoffman, as                                  December 29, 2016
      successor trustee of the Hoffman                        Court of Appeals Case No.
      HF Land Trust, and TDM                                  45A03-1604-CC-743
      Farms, Inc.,                                            Appeal from the Lake Superior
      Appellant-Plaintiffs,                                   Court
                                                              The Honorable Calvin D.
              v.                                              Hawkins, Judge
                                                              Trial Court Cause No.
      Andrew G. James and Susan G.                            45D02-1311-CC-754
      James,
      Appellees-Defendants.



      Mathias, Judge.


[1]   Douglas K. Hoffman (“Hoffman”), as the successor trustee to the Hoffman HF

      Land Trust (“the Trust”), and TMD Farms, Inc. (“TDM”) (collectively “the


      Court of Appeals of Indiana | Memorandum Decision 45A03-1604-CC-743 | December 29, 2016      Page 1 of 11
      Plaintiffs”), filed a complaint for damages and injunctive relief in Lake Superior

      Court alleging that Andrew G. James and Susan G. James (“the Jameses”)

      obstructed or interfered with the above-ground water course and severed the

      underground tile system, which drained the Plaintiffs’ farm. The trial court

      granted the Jameses’ motion for summary judgment. The Plaintiffs appeal and

      present two issues for our review, which we restate as: (1) whether the Jameses

      properly designated evidence in favor of their motion for summary judgment,

      and (2) whether the trial court properly granted summary judgment in favor of

      the Jameses. Finding the first issue dispositive, we reverse and remand for

      further proceedings.


                                    Facts and Procedural History

[2]   Hoffman is the successor trustee of the Trust. The Trust owns certain real

      property in Lake County that is used for farming. Hoffman is also a principal of

      TDM Farms, Inc., which leases the Trust’s real estate. The Jameses own real

      property in Lake County that is located adjacent to Trust’s property on its south

      end. Both of the properties are drained by an above-ground water course and an

      underground tile drainage system.

[3]   In 2010, the Jameses excavated a portion of their property and created a pond

      on the property. This resulted in an alteration to the drainage of Hoffman’s land

      and subsequent flooding of the crops. Hoffman claimed that this caused




      Court of Appeals of Indiana | Memorandum Decision 45A03-1604-CC-743 | December 29, 2016   Page 2 of 11
      damage to his land and crops, and at some point in 2010,1 the parties entered

      into settlement negotiations, which resulted in Hoffman signing a General

      Release,2 which generally provides that, in exchange for $60,000, he and TDM

      Farms would release the Jameses


               from any and all claims, demands, damages, actions, causes of
               action or suits of any kind or nature whatsoever, and particularly
               on account of all injuries, known and unknown, both to person
               and property, which have resulted, or may in the future develop,
               from an incident/accident which occurred on or about JUNE 1,
               2010, at or near CLARK STREET, in the County of LAKE, City
               of Crown Point, State of Indiana, including, but not limited to,
               all claims which were or could have been result [sic] of the above
               described incident/accident.


      Appellant’s App. p. 33.


[4]   Three years later, on October 20, 2013, the Plaintiffs filed an action against the

      Jameses, again claiming damages to their farmland and crops. The complaint

      alleged in relevant part:


               4. There exists and has existed on the lands of the Plaintiffs and
               Defendants a natural aboveground water course, together with
               an underground drain tile system, that drains the lands of both




      1
       On appeal, Hoffman notes that the release itself is undated. However, at the summary judgment hearing,
      Hoffman’s counsel admitted that the release was from 2010.
      2
        As explained below, we conclude that, because it was unverified, the General Release should not have been
      considered by the trial court in ruling on the Jameses’ motion for summary judgment. Still, it is a part of the
      record before us, and we quote from it to better explain the parties’ arguments.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1604-CC-743 | December 29, 2016            Page 3 of 11
        Plaintiffs and Defendants, running generally in a north to
        south/southwesterly direction.
        5. Water naturally flows aboveground over and underground
        through the drain tile system from and through the land of
        Plaintiffs to, over and through the land of Defendants when the
        aboveground water course and underground drain tile system are
        not obstructed.
        6. During the course of and since the time of the construction of
        a pond by Defendants upon Defendants’ land, Defendants
        obstructed and continue to obstruct the aboveground water
        course and severed the underground drain tile system which
        drained the land of Plaintiffs.
        7. By obstructing the aboveground water course and by severing
        the underground drain tile, Defendants have interfered and
        continue to interfere with the natural drainage of water from the
        land of Plaintiffs.
        8. As a direct and proximate result of Defendants’ actions,
        water has remained on the lands of Plaintiffs from time to time,
        flooding Plaintiffs’ land and causing damage to Plaintiff’s crops.
        9. A portion of Plaintiffs’ real estate fails to have normal
        drainage as the same existed prior to the obstruction of the
        aboveground water course and the severance of the underground
        drain tile by Defendants.
        10. As a direct proximate result of the obstruction of the
        aboveground water course and the severance of the underground
        drain tile by Defendants, and the resulting failure of Plaintiffs’
        lands to drain normally, Plaintiffs’ lands and the crops grown
        thereon have been adversely affected.
        11. The crop yield for corn and soybeans grown by Plaintiff,
        TDM Farms, on the above-described real estate have been less
        for the 2011, 2012 and 2013 crop years than the yields would
        have been had there been no obstruction of the aboveground
        water course and/or severance of the underground drain tile by
        Defendants

Court of Appeals of Indiana | Memorandum Decision 45A03-1604-CC-743 | December 29, 2016   Page 4 of 11
        12. The conduct of Defendants in obstructing the aboveground
        water course and severing the underground drain tile is contrary
        to Indiana law.
        13. Defendants’ actions constitute unreasonable use of property
        by Defendants causing injury to Plaintiffs and remain a
        continuing nuisance.
        14. Despite due demand by Plaintiffs upon Defendants for the
        removal of the obstruction to the aboveground water course and
        for repair of the underground drain tile causing damage to
        Plaintiffs, Defendants have wholly failed and refused to take
        remedial action in a timely manner and to the extent necessary to
        eliminate or mitigate ongoing damages to Plaintiffs.
        15. The obstruction of the aboveground water course and
        severance of the underground drain tile by Defendants have
        caused and will continue to cause damages to Plaintiffs until such
        time as the obstructions to the aboveground water course are
        removed and repairs are made to the underground drain tile
        system.
        16. Defendants actions in causing and inaction in removing the
        aboveground water course obstructions and in severing and
        failing to repair the underground drain tile system were and are
        willful and wanton, intentional, and without justification and are
        done with a reckless disregard for the consequences.
        WHEREFORE, Plaintiffs, and each of them, pray for judgment
        against Defendants, individual and jointly, in the following
        respects:
        1. For compensatory damages for the loss to Plaintiffs’ reduced
        yield for 2011, 2012 and 2013 crop yields;
        2. For punitive damages for Defendants’ conduct which was
        willful, wanton, intentional or done with a reckless disregard for
        the consequences;
        3. For the costs to remove the obstructions of the aboveground
        water course and to repair the underground drain tile system;


Court of Appeals of Indiana | Memorandum Decision 45A03-1604-CC-743 | December 29, 2016   Page 5 of 11
              4. For a permanent injunction, enjoining Defendants from
              causing or creating further obstruction of the aboveground water
              course or causing any further damage to or interference with the
              underground drain tile system to the detriment of Plaintiffs;
              5. For the costs of this action; and
              6. For all other just and proper relief in the premises.


      Appellant’s App. pp. 10-13.


[5]   The Jameses filed an answer to the complaint on December 20, 2013, in which

      they denied the Plaintiffs’ claims. In addition, the Jameses asserted several

      affirmative defenses, including release, accord and satisfaction, and payment.

      Appellant’s App. p. 17.


[6]   On January 22, 2016, the Jameses filed a motion for summary judgment, a

      memorandum in support thereof, and a designation of evidence in support of

      the motion, which delineated four items of evidence: (1) the April 15, 2011

      letter Hoffman sent to the Jameses, (2) the General Release, (3) the Plaintiffs’

      complaint, and (4) a letter sent by the Plaintiffs’ counsel to the Jameses’ insurer.

      The Plaintiffs filed a response to the motion for summary judgment, including

      designated evidence in support thereof, on February 29, 2016. The trial court

      held a hearing on the summary judgment motion on March 9, 2016, and

      granted the Jameses’ motion for summary judgment that same day. The

      Plaintiffs now appeal.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1604-CC-743 | December 29, 2016   Page 6 of 11
                                           Summary Judgment

[7]   The standard of review we apply on review of a trial court’s order granting or

      denying summary judgment is well settled: we review summary judgment de

      novo, applying the same standard as the trial court. Rapkin Grp., Inc. v. Cardinal

      Ventures, Inc., 29 N.E.3d 752, 756 (Ind. Ct. App. 2015), trans. denied (citing

      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)). Drawing all reasonable

      inferences in favor of the nonmoving parties, summary judgment is appropriate

      if the designated evidentiary matter 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. at 756-57. A fact is material if its resolution would affect the outcome

      of the case, and an issue is genuine if a trier of fact is required to resolve the

      parties’ differing accounts of the truth, or if the undisputed material facts

      support conflicting reasonable inferences. Id. at 756. The initial burden is on the

      movant to demonstrate the absence of any genuine issue of fact as to a

      determinative issue, at which point the burden shifts to the nonmovant to come

      forward with contrary evidence showing an issue for the trier of fact. Id.

      Although the nonmoving party has the burden on appeal of persuading us that

      the grant of summary judgment was erroneous, we carefully assess the trial

      court’s decision to ensure that he was not improperly denied his day in court.

      Id.


                                       Discussion and Decision

[8]   The Plaintiffs argue that the Jameses failed to properly designate the evidence

      they relied on in their motion for summary judgment. We first note that the

      Court of Appeals of Indiana | Memorandum Decision 45A03-1604-CC-743 | December 29, 2016   Page 7 of 11
       Jameses fail to respond to this argument on appeal and instead argue only that

       the trial court properly granted summary judgment in their favor.


[9]    An appellee’s failure to respond to an issue raised in an appellant’s brief is akin

       to failing to file a brief as to that issue. Elliott v. Rush Mem’l Hosp., 928 N.E.2d

       634, 639 (Ind. Ct. App. 2010), trans. denied. Although the appellee’s failure does

       not relieve us of our obligation to correctly apply the law to the facts in the

       record in order to determine whether reversal is required, it is still the appellee’s

       responsibility to controvert arguments raised by the appellant. Id. When an

       appellee fails to respond to an issue raised in the appellant’s brief, the appellant

       need only establish prima facie error in the trial court’s ruling. Id. In this

       context, prima facie means “‘at first sight, on first appearance, or on the face of

       it.’” Id. (quoting Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 837 (Ind.

       Ct. App. 2005), trans. denied). With this more less strict standard in mind, we

       address the Plaintiffs’ claims.


[10]   The Jameses filed a motion for summary judgment, a memorandum in support

       of the motion, and a separate designation of evidence, the latter of which

       provides:

               Defendants, Andrew G. James and Susan G. James, by counsel,
               pursuant to Trial Rule 56 of the Indiana Rules of Trial
               Procedure, in support of their Motion for Summary Judgment,
               designate the following evidence:
               1.      Letter dated April 15, 2011, Exhibit A
               2.      General Release, Exhibit B



       Court of Appeals of Indiana | Memorandum Decision 45A03-1604-CC-743 | December 29, 2016   Page 8 of 11
               3.      Complaint, Exhibit C
               4.      Letter dated May 26, 2011, Exhibit D

       Appellant’s App. p. 29. The referenced documents were attached to the

       designation. The Plaintiffs argue that the trial court should not have considered

       this evidence designated by the Jameses because the designated materials were

       not verified.


[11]   As noted above, Exhibit A consists of a letter from Hoffman, Exhibit B is the

       General Release, Exhibit C is the Plaintiffs’ complaint, and Exhibit D is a letter

       sent by Plaintiffs to the Jameses’ insurer.


[12]   The Plaintiffs correctly note that Indiana courts have long held that unsworn

       statements and unverified exhibits do not qualify as proper Rule 56 evidence

       and should not be considered when ruling on a motion for summary judgment.

       Ford v. Jawaid, 52 N.E.3d 874, 877 (Ind. Ct. App. 2016) (citing Stafford v.

       Szymanowski, 31 N.E.3d 959, 964 (Ind. 2015); Smith v. Delta Tau Delta, Inc., 9

       N.E.3d 154, 159 (Ind. 2014); Ind. Univ. Med. Ctr., Riley Hosp. for Children v.

       Logan, 728 N.E.2d 855, 858 (Ind. 2000)); see also Wallace v. Indiana Ins. Co., 428

       N.E.2d 1361, 1365 (Ind. Ct. App. 1981) (“An unsworn statement or unverified

       exhibit does not qualify as proper evidence.”); Pomerenke v. Nat’l Life & Acc. Ins.

       Co., 143 Ind. App. 472, 474, 241 N.E.2d 390, 392 (1968) (“[W]e agree with

       appellant that it was not proper to consider the unverified exhibit filed with the

       motion [for summary judgment] in this case.”).




       Court of Appeals of Indiana | Memorandum Decision 45A03-1604-CC-743 | December 29, 2016   Page 9 of 11
[13]   Despite this clear requirement, practitioners often secure the admission of

       unverified exhibits for summary judgment, such as correspondence, by the

       agreement of opposing counsel. This is a courtesy, so that counsel need not

       prepare the routine, verification affidavit(s) for, or call or depose witnesses to

       verify, such common pieces of evidence shared by, and often originated

       between, the parties. However, in this instance, counsel for the plaintiffs

       repeatedly objected to the admission of the unverified exhibits at the hearing on

       the motion for summary judgment and carried the objections forward in this

       appeal.


[14]   Nothing in the record indicates that Exhibits A, B, and D, which were

       designated by the Jameses and attached to their motion for summary judgment,

       were verified. Instead, it appears as if the Jameses simply attached unverified

       copies of these items to their designation of evidence without the agreement of

       Plaintiffs’ counsel. This was improper but is likely to be quickly remedied in the

       trial court below.


[15]   We are therefore constrained to conclude that the Plaintiffs have established

       prima facie error on the part of the trial court for considering these unverified

       materials on summary judgment. The only remaining evidence that the Jameses

       designated is the Plaintiffs’ complaint, which in no way supports the Jameses’

       motion for summary judgment. Thus, the Jameses failed to support their

       motion for summary judgment with any properly designated evidence that

       would demonstrate that they were entitled to judgment as a matter of law.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1604-CC-743 | December 29, 2016   Page 10 of 11
       Accordingly, the trial court erred in granting summary judgment in favor of the

       Jameses.


                                                  Conclusion

[16]   Because the Jameses failed to properly designate the evidence in support of

       their motion for summary judgment, we reverse the trial court’s grant of

       summary judgment in favor of the Jameses and remand for further proceedings

       consistent with this opinion.


[17]   Reversed and remanded.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1604-CC-743 | December 29, 2016   Page 11 of 11
