      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                              Jan 20 2016, 10:35 am
      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
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Thomas F. Bedsole                                        F. Anthony Paganelli
      Maggie L. Smith                                          Paganelli Law Group
      Frost Brown Todd, LLC                                    Indianapolis, Indiana
      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      2007 East Meadows, LP,                                   January 20, 2016
      Appellant-Defendant/Counterclaim                         Court of Appeals Case No.
      Plaintiff,                                               49A05-1407-PL-300

              v.                                               Appeal from the Marion Superior
                                                               Court

      RCM Phoenix Partners, LLC,                               The Honorable James B. Osborn,
                                                               Judge
      Appellee-Plaintiff/Counterclaim
                                                               Trial Court Cause No.
      Defendant                                                49D14-0807-PL-34494



      Mathias, Judge.


[1]   2007 East Meadows, LP (“Meadows”) appeals from the order of the Marion

      Superior Court granting summary judgment in favor of RCM Phoenix Partners,

      LLC (“Phoenix”) in Meadows’s counter-claim against Phoenix alleging breach

      Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016      Page 1 of 18
      of contract and fraud and requesting specific performance. On appeal,

      Meadows presents four issues, which we restate as whether the trial court

      properly granted summary judgment in favor of Phoenix on Meadows’ claims

      of breach of contract and fraud and its request for specific performance.

[2]   We affirm.


                                            Statement of Facts

[3]   Phoenix is a Connecticut-based company that owns the Phoenix Apartments

      (“the Apartments”), a housing complex in Indianapolis.1 The Apartments are

      located in a depressed and economically distressed area and serve to house

      poorer residents through the U.S. Department of Housing and Urban

      Development (“HUD”). HUD paid Phoenix a monthly “Housing Assistance

      Payment” (“HAP”) pursuant to an agreement between HUD and Phoenix.

[4]   In July of 2007, Phoenix entered into a written Purchase and Sale Agreement

      (“the Agreement”) with Texas-based Eureka Holdings Acquisitions, LP

      (“Eureka”), in which Eureka agreed to purchase the Apartments for a price of

      $9,050,000. Three months later, on September 5, 2007, Eureka assigned all of

      its rights under the Agreement to Indiana-based Meadows.


[5]   The Agreement contained at least three essential requirements: (1) that HUD

      approve assigning the HAP to Meadows; (2) Meadows tendering a cash



      1
       The apartments are located south of 42nd Street, in the area between North Keystone Avenue and North
      Sherman Drive, east of the State Fairgrounds.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016      Page 2 of 18
      payment at closing; and (3) Meadows assuming roughly $6,850,000 of

      Phoenix’s loan and mortgage obligations (“the Mortgage”) with Wachovia

      Bank (“Wachovia”). Thus, the contract required Meadows to pay the purchase

      price through a combination of cash and assuming the existing multi-million

      dollar Wachovia mortgage. Meadows had secured the cash required for closing

      and presumed that Wachovia’s approval of the assignment of the Mortgage

      would be a “formality” because the loan was secured by both the real property

      and the HUD Housing Assistance Payment.


[6]   The Agreement called for a closing date in October 2007. However, as of

      October 1, 2007, Wachovia had not yet approved Meadows to assume the

      Mortgage. Accordingly, Meadows’ counsel sent an email to Phoenix’s counsel

      invoking a provision of the Agreement that allowed the closing date to be

      extended by thirty days if the lender had not yet approved assumption of the

      Mortgage. The closing date was then set for late in November 2007. However,

      by late October, Meadows had still not received approval and became

      concerned that the approval process was taking too long. In an email sent on

      October 31, 2007, Meadows indicated that it might need another extension of

      the closing date to secure the approval from Wachovia. On November 19, 2007,

      Phoenix’s counsel sent a letter to Meadows’s counsel complaining about the

      delays in securing financing and threatening to cancel the transaction. The

      following day, Meadows requested another extension of the closing date, and

      the parties eventually agreed to amend the Agreement, with the closing date




      Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016   Page 3 of 18
      changed to be “on or before January 7, 2008. TIME BEING OF THE

      ESSENCE.” Appellant’s App. p. 128.

[7]   Meadows was still having trouble obtaining Wachovia’s approval of the

      mortgage assumption, and on November 28, 2007, Meadows’ chief financial

      officer Mike Wallis (“Wallis”) accused Wachovia in an email of “sitting on its

      hands” with regard to the mortgage assumption request. In an internal memo

      on that same date, Wallis informed his colleagues at Meadows that Wachovia

      had all of the information it needed to approve the loan, yet Wachovia was not

      even willing to send Meadows the draft loan documents for Meadows’ counsel

      to review.

[8]   Tragically, at some point in November 2007, a three-year-old child was killed

      by her parents in one of the units at the Apartments.2 This incident caused a

      public outcry, and on December 5, 2007, the Indianapolis Housing Authority

      began an enforcement action3 against Phoenix regarding the condition of the

      Apartments. The enforcement action sought “[r]ecovery of Federal Funds due

      to the allegations of civil and/or criminal fraud,” “[h]ousing fraud due to a

      number of reasons, including alleged poor housing conditions, failure to

      disclose ownership change, and violations of the HAP agreement.” Appellant’s

      App. p. 215. The action sought changes in the management and operation of




      2
          No evidence indicates that this incident had any connection with Phoenix.
      3
        Meadows insists upon referring to the enforcement action as a “criminal” action, whereas Phoenix
      contends that it was merely a “civil” enforcement action.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016        Page 4 of 18
       the Apartments in addition to recovery of governmental funds the Apartments

       had received. Id.


[9]    One of the key points of contention in the present case is whether Phoenix

       notified Meadows of this incident. Phoenix claims, and the trial court found,

       that Phoenix did notify Meadows regarding the child’s death and the

       subsequent enforcement action. Meadows, however, designated some evidence

       that it learned of the enforcement action as it was making the final preparations

       for closing.

[10]   Meadows also designated evidence indicating that, prior to the closing date,

       HUD informed it that it would not approve of the transfer of the HAP because

       of the enforcement action against Phoenix.4 Meadows also designated evidence

       indicating that it could not obtain Wachovia’s approval without HUD agreeing

       to transfer the Housing Assistance Payment.

[11]   By December 7, 2007, Wachovia had still not approved of Meadows’s request

       to assume the mortgage on the Apartments. Even so, that same day,

       Meadows’s counsel emailed Phoenix’s counsel informing him that Meadows

       hoped to have the approval documents soon. However, approval was not

       forthcoming, and on the scheduled closing date, January 7, 2008, Meadows’

       counsel asked Phoenix for another thirty-day extension of the closing date.




       4
         Correspondence between HUD and Block indicated that HUD failed to approve of the HAP transfer
       because HUD had concerns regarding the conditions at another property in Texas with which Meadows was
       involved. See Appellant’s App. pp. 314-16.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016    Page 5 of 18
       Phoenix declined to agree to an extension. Later that day, Meadows’ counsel

       announced that Meadows was not going to close on the agreement, giving the

       enforcement action as the reason. Despite the fact that it had not secured

       Wachovia’s approval, Meadows asserted that it was ready, willing, and able to

       close but claimed that Phoenix was in breach of the contract because of the

       enforcement action.

                                             Procedural History

[12]   Meadows initially brought suit against Phoenix in Texas on January 22, 2008.

       In its suit, Meadows claimed breach of contract and fraud and sought a

       declaratory judgment, constructive trust, and specific performance. The Texas

       trial court dismissed the action for lack of personal jurisdiction over Phoenix,

       and Meadows appealed. While the appeal was pending, Phoenix filed suit in

       Indiana (in Marion Circuit Court) on July 31, 2008, seeking a declaratory

       judgment that Meadows’ allegations of breach of contract and fraud were

       meritless. Because the parties were in settlement negotiations, they both

       requested on October 10, 2008, that the Indiana action be stayed, which request

       the trial court granted. On April 14, 2010, the Texas Court of Appeals affirmed

       the Texas trial court’s decision that it had no personal jurisdiction over

       Phoenix. See 2007 East Meadows, L.P. v. RCM Phoenix Partners, L.L.C., 310

       S.W.3d 199 (Tex. App. 2010), reh’g overruled, review denied.


[13]   On July 27, 2011, Meadows filed a motion asking that the stay in the Indiana

       case be lifted. The trial court granted this motion, and Meadows subsequently

       filed a counter-claim asserting the claims it had originally brought in the Texas
       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016   Page 6 of 18
       case. After lengthy pre-trial discovery, the trial court set a trial date of July 14,

       2014.

[14]   In the meantime, on February 6, 2014, Phoenix entered into an agreement to

       sell the Apartments to the Meadows Community Foundation5 (“the

       Foundation”) for $10,481,611. Accordingly, Phoenix moved to advance the

       trial date to May 2014 to facilitate its selling of the Apartments to the

       Foundation. The trial court denied this request. Then, on March 31, 2014, both

       parties moved for summary judgment. Meadows sought partial summary

       judgment in its favor on the claims of breach of contract and specific

       performance. Phoenix sought partial summary judgment on the issues of breach

       of contract and fraud. Subsequently, the Foundation sought leave to intervene

       in the action.6 Over Meadows’ objection, the trial court granted the motion. On

       June 16, 2014, the trial court held a hearing on the summary judgment motions,

       and both parties subsequently filed proposed findings and conclusions.


[15]   On June 26, the trial court entered findings of fact and conclusions of law

       granting partial summary judgment in favor of Phoenix. Meadows filed a notice

       of appeal on July 7, 2014, and on July 17, 2014, Phoenix filed a motion in this

       Court seeking to expedite Meadows’ appeal. On July 25, 2014, Meadows filed a




       5
           The Foundation appears to be a completely separate entity from Meadows.
       6
         Phoenix’s agreement to sell the property to the Foundation also later fell through. See Appellant’s App. pp.
       516-18 (stating in motion that “counsel for the [Foundation] represented to and notified East Meadows that
       the purchase agreement for the Property has been terminated, and that there is no planned purchase and sale
       transaction at this time.”).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016            Page 7 of 18
       motion to correct error in the trial court. On August 14, 2014, Meadows filed a

       motion in this Court to remand the case to the trial court for consideration of its

       motion to correct error. We granted this request on September 17, 2014, and

       this case was remanded so that the trial court could rule on Meadows’ motion

       to correct error. After a hearing held on October 9, 2014, the trial court denied

       Meadows’ motion to correct error the next day. Meadows now appeals.

                                            Standard of Review

[16]   Our standard for reviewing a trial court’s order granting a motion for summary

       judgment is well settled:


               A trial court should grant a motion for summary judgment only
               when the evidence shows that there is no genuine issue as to any
               material fact and that the moving party is entitled to a judgment
               as a matter of law. The trial court’s grant of a motion for
               summary judgment comes to us cloaked with a presumption of
               validity.	An appellate court reviewing a trial court summary
               judgment ruling likewise construes all facts and reasonable
               inferences in favor of the non-moving party and determines
               whether the moving party has shown from the designated
               evidentiary matter that there is no genuine issue as to any
               material fact and that it is entitled to judgment as a matter of law.
               But a de novo standard of review applies where the dispute is one
               of law rather than fact. We examine only those materials
               designated to the trial court on the motion for summary
               judgment. Our standard of review is not altered by the fact that
               the parties filed cross motions for summary judgment. Here, the
               trial court made findings of fact and conclusions of law in
               support of its entry of summary judgment. Although we are not
               bound by the trial court’s findings and conclusions, they aid our
               review by providing reasons for the trial court’s decision. We


       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016   Page 8 of 18
               must affirm the trial court’s entry of summary judgment if it can
               be sustained on any theory or basis in the record.


       Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind. Ct. App. 2012) (citations and

       internal quotations omitted).


                                  I. Meadows’ Inability to Perform

[17]   Meadows first contends that it was entitled to summary judgment on the issue

       of whether Phoenix breached the Agreement. Meadows notes that Phoenix had

       several obligations under the Agreement, including: not engaging in any

       activity or transaction with respect to the Property that is outside the normal

       and ordinary course of business; operating the Property in the same manner as

       its operation prior to the Agreement; turning over the Property in substantially

       the same condition; and not entering into any new contracts affecting the

       Property without the consent of Meadows. Phoenix also warranted in the

       Agreement that no civil, administrative, or other actions, suits, or proceedings

       were pending or threatened against or affecting the Property.


[18]   Meadows claims that by becoming embroiled in the enforcement action and

       negotiating a settlement agreement with the Indianapolis Housing Authority to

       resolve the enforcement action, Phoenix breached these terms of the

       Agreement. Phoenix claims that it did not breach the Agreement, but it also

       argues that Meadows cannot now seek to enforce the Agreement because

       Meadows was unable to perform its own obligations under the Agreement.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016   Page 9 of 18
       Thus, the first question we address is whether Meadows was, in fact, able to

       perform.


       A. Meadows’ Ability to Perform

[19]   Meadows asserts that it was ready, willing, and able to perform its obligations

       under the Agreement.7 Meadows strongly contests the position of Phoenix and

       the trial court that Meadows itself breached the Agreement by not being able to

       obtain Wachovia’s approval to assume the mortgage obligations. Meadows

       denies that not obtaining the Bank’s approval was the reason it did not close on

       the Agreement; it instead claims that the only reason it did not close was the

       existence of the enforcement action which prevented Meadows from obtaining

       the required approvals and excused it from closing due to the changed

       conditions in the property. This is where Meadows’ recitation of the facts

       becomes, at best, selective.


[20]   Meadows correctly notes that performance of the Agreement required three

       things: (1) that Meadows tender a cash payment at closing; (2) that HUD

       approve the assignment of the HAP to Meadows; and (3) that Meadows assume




       7
         Meadows also claims that the trial court erred in concluding that it could not seek specific performance and
       also recover monetary damages. We agree. Granting specific performance does not preclude a monetary
       award. Estate of Collins v. McKinney, 936 N.E.2d 252, 260-61 (Ind. Ct. App. 2010). Although a grant of specific
       performance precludes “legal damages,” it does not necessarily preclude a monetary award. See Kesler, 792
       N.E.2d at 897 (noting that the compensation awarded as incident to specific performance are not for breach
       of contract and therefore not “legal damages,” and are instead awarded to adjust the rights of the parties and
       equalize any losses occasioned by the delay by offsetting them with money payments). Therefore, Meadows
       is correct that, in addition to specific performance, it may also seek monetary damages if such damages are
       necessary under the circumstances. However, we conclude infra that Meadows is not entitled to specific
       performance.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016           Page 10 of 18
       roughly $6,850,000 of Phoenix’s loan and mortgage obligations with Wachovia.

       We focus our analysis on the third obligation.

[21]   In portions of its brief, Meadows appears to claim that it did secure such

       approval. For example, Meadows’ brief includes a heading which states,

       “Seller’s Bank had approved Purchaser’s assumption of Seller’s loan and was prepared

       to close on the sale by January 7, 2008.” Appellant’s Br. p. 24 (emphasis

       added). Meadows also writes in its brief, “After the Contract was amended and

       a new closing date was established, Purchaser continued working with Seller’s

       Bank to obtain approval for the assumption of Seller's mortgage. These efforts

       were successful and, on December 7, 2007, Purchaser reported to Seller that

       Seller's Bank had declared it was preparing to close on the sale by December 14,

       2007.” Id. (emphasis added).


[22]   However, these assertions are not supported by the record. To support its claim

       that its efforts to assume the mortgage were successful, Meadows refers to page

       308 of its Appendix, but this page contains a copy of an email sent from

       Meadow’s agent, Harris Block (“Block”) in which he stated:

               Wachovia’s counsel told me yesterday afternoon that they hope
               to have documents out by the end of the day today [December 7,
               2007]. They also anticipate having a conference call, with you
               and me, sometime early next week. While I believe it is
               aggressive, they said they hope to be ready to close by next
               Friday, Dec. 14. In my own opinion, I think that a closing by
               Friday, Dec. 21 is more realistic and likely.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016   Page 11 of 18
       Appellant’s App. p. 308 (emphasis added). This email does not state that

       Wachovia had approved the mortgage assumption. It merely expresses Block’s

       hopes and beliefs that such approval was forthcoming.


[23]   Moreover, after clearly stating in its brief that the efforts to assume the

       mortgage “were successful,” Meadows then admits to the exact opposite one

       sentence later, stating, “there is abundant evidence that the lender approval did

       not exist as of the January 7, 2008 closing date.”8 Appellant’s Br. p. 25. The

       designated evidence clearly indicates that Wachovia had not approved of the

       mortgage assumption as of the January 7, 2008 closing date.9

[24]   Thus, despite Meadows’ reliance on the letter it sent to Phoenix on the closing

       date stating that Meadows was “ready, willing, and able” to close on the

       Agreement, the fact remains that Meadows was not able to close on the

       Agreement because it had yet to secure Wachovia’s approval of the mortgage

       assumption. In other words, the fact that Meadows claimed to be ready, willing,

       and able to close is not evidence that it was actually ready, willing, and able to

       perform. Without approval to assume the mortgage, Meadows was unable to




       8
         Although Meadows admits in this sentence that Wachovia’s approval had not been secured by the
       January 7, 2008, closing date, it claims that this was “because of [Phoenix]’s actions or omissions.” Id.
       However, Meadows never explains precisely how Phoenix is at fault for Wachovia’s failure to approve the
       loan assumption. Although it plays no part in our decision, it is not surprising that Meadows ran into
       obstacles in obtaining approval of the mortgage assumption given the well-known mortgage crisis that was
       occurring at the time. In fact, Wachovia did not survive the mortgage crisis and was acquired by Wells
       Fargo. See http://www.federalreserve.gov/newsevents/press/orders/20081012a.htm.
       9
        The record indicates that Meadows did not gain approval to assume the mortgage until February 22, 2010,
       when it received an approval letter from Wells Fargo.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016        Page 12 of 18
       perform the Agreement. However, what are the consequences of this inability to

       perform?


       B. Specific Performance

[25]   Because Meadows was unable to perform, it is not entitled to specific

       performance of the Agreement. Specific performance is an equitable remedy.

       Kesler v. Marshall, 792 N.E.2d 893, 896 (Ind. Ct. App. 2003), trans. denied. When

       dealing with contracts for the purchase of real estate, Indiana courts routinely

       order specific performance because “each piece of real estate is considered

       unique, without an identical counterpart anywhere else in the world.” Id. Still,

       the power of a court to order the equitable remedy of specific performance is an

       extraordinary power that is not available to a party as a matter of right. Id.

       Courts should not exercise equitable powers when there is an adequate remedy

       at law. Id. at 897.


[26]   It is well established that a party seeking specific performance of a real estate

       contract must prove that he has substantially performed his contractual

       obligations or offered to do so. Salin Bank & Trust Co. v. Violet U. Peden Trust, 715

       N.E.2d 1003, 1007 (Ind. Ct. App. 1999). Because Meadows was unable to

       perform the Agreement as of the January 7, 2008, closing date, it was not entitled




       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016   Page 13 of 18
       to specific performance.10 See id. Accordingly, the trial court properly granted

       summary judgment denying Meadows’ claim for specific performance.11


       C. Damages for Breach of Contract

[27]   Phoenix claims that, because Meadows was unable to perform, Meadows

       cannot seek to enforce the Agreement at all. In support of this argument,

       Phoenix cites Melton v. Coffelt, 59 Ind. 310 (1877). In that case, the court held

       that, in an action based on a mutual agreement of the parties, “the party

       pleading the same must aver performance, or a sufficient excuse for non-

       performance, of the stipulations of the agreement on his part performed, or the

       pleading will be held insufficient on a demurrer thereto[.]” Id. at 314. Meadows




       10
        Because Meadows was not entitled to specific performance, we do not address Phoenix’s argument that
       Meadows’ request for specific performance is barred by the equitable doctrine of laches.
       11
          The parties also argue at length regarding HUD’s failure to approve the transfer of the HAP to Meadows.
       Meadows lays the blame for this failure on Phoenix. Phoenix claims that the evidence Meadows designated
       in support of this claim was inadmissible hearsay. Specifically, Block testified during deposition that “[HUD]
       indicated that because of the action at the property they were going to have to delay the final approval [of the
       HAP transfer].” Appellant’s App. at 235. Phoenix claims that this is inadmissible hearsay that cannot be
       relied upon in summary judgment proceedings. See Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct. App.
       2007) (“Inadmissible hearsay contained in an affidavit may not be considered in ruling on a summary
       judgment motion.”). We agree with Phoenix that Block’s testimony regarding what HUD told him was
       hearsay—out-of-court statements offered to prove the truth of the matter of what was asserted in the
       statements, i.e., that HUD delayed approval of the HAP transfer because of the enforcement action involving
       the Apartments.
       Meadows notes, however, that this rule prohibiting the consideration of hearsay on summary judgment was
       modified by our supreme court in Reeder v. Harper, 788 N.E.2d 1236 (Ind. 2003). In Reeder, the court held that
       “an affidavit that would be inadmissible at trial may be considered at the summary judgment stage of the
       proceedings if the substance of the affidavit would be admissible in another form at trial.” Id. at 2141-42.
       Thus, Block’s hearsay testimony could be considered on summary judgment if the substance of the statement
       would be admissible in another form at trial. However, we need not resolve this issue. Regardless of the
       reason for HUD’s failure to approve the HAP transfer by the closing date, the fact remains that Meadows
       was unable to perform on the closing date because of Wachovia’s failure to approve the mortgage
       assumption. The trial court properly denied Meadows’ request for specific performance for this reason alone.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016            Page 14 of 18
       does not directly deny the validity of this case, and indeed, the general rule

       appears to be that “[a] party who seeks to recover damages from another party

       for breach of contract must show himself or herself free from fault in respect to

       performance, and a party cannot recover on a contract without showing that he

       or she performed his or her responsibilities thereunder.” 17B C.J.S. Contracts §

       664 (2015). As explained in detail above, Meadows was unable to perform

       under the Agreement due to the failure to secure Wachovia’s approval of the

       loan assignment. Accordingly, the trial court properly granted summary

       judgment in favor of Phoenix on Meadows’ claim of breach of contract.


                                    II. Did Phoenix Commit Fraud?

[28]   Lastly, we address Meadows’ claim that a genuine issue of material fact exists

       regarding whether Phoenix committed fraud by failing to disclose the existence

       of the enforcement action to Meadows.


[29]   The tort of fraud consists of: (1) material misrepresentation of past or existing

       facts by the party to be charged, (2) which was false, (3) which was made with

       knowledge or reckless ignorance of the falseness, (4) was relied upon by the

       complaining party, and (5) proximately caused the complaining party injury.

       Johnson v. Wysocki, 990 N.E.2d 456, 460-61 (Ind. 2013).12 Here, the parties




       12
         Johnson was superseded by statute on other grounds as noted in Hays v. Wise, 19 N.E.3d 358 (Ind. Ct. App.
       2014).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016        Page 15 of 18
       dispute only whether Phoenix informed Meadows of the enforcement action

       initiated by the Indianapolis Housing Authority.

[30]   In support of its position, Phoenix designated the deposition testimony of its

       agent, Paul Morris (“Morris”), in which he testified that he told Meadows’

       agent Block about the enforcement action in December 2007. See Appellant’s

       App. pp. 319-20. This is sufficient for Phoenix to meet its burden of making a

       prima facie showing no genuine issue of material fact exists with regard to this

       issue. See M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App.

       2014) (noting that the party moving for summary judgment bears the burden of

       making a prima facie showing that there are no genuine issues of material fact),

       trans. denied. The burden then shifted to Meadows to demonstrate the existence

       of a genuine issue of material fact. See id.


[31]   Here, Meadows designated portions of Block’s deposition testimony in which

       he claimed that the action was not disclosed. Appellant’s App. p. 330 (“[T]he

       contract stipulated that any actions, government actions have to be disclosed to

       the buyer. It was not disclosed.”); Id. at 331 (“[T]hey did not tell us during the

       pendency of the contract until we found out from other sources.”).


[32]   However, Block’s deposition testimony was not entirely unambiguous. When

       pressed, Block back-pedaled from his earlier testimony and testified that he

       could not say that anyone from Phoenix lied to him about the enforcement

       action. Moreover, Block also testified in his deposition as follows:




       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016   Page 16 of 18
               Q.    As you sit hear today can you tell me for sure that Paul
               Morris did not notify you about that action in December?

               A.       Say that again?

               Q.     Sure. Can you tell me for certain that Paul Morris never
               notified you about that action during the month of December?

               A.       That he never notified me?

               Q.       Right. During December.

               A.     I can’t say that he never notified me. We had notification, and I
               believe – we had notification. I can’t say when it was. I can’t
               recall exactly when it came in.


       Id. at 370. Thus, Block admitted that no one from Phoenix lied to him, that he

       was unable to say that Morris never notified him, and that Meadows was

       notified about the enforcement action. Under these facts and circumstances, we

       cannot say that a genuine issue of material fact exists regarding the issue of

       Meadows notice of the enforcement action. Accordingly, the trial court

       properly granted summary judgment in favor of Phoenix on the issue of fraud.


                                                  Conclusion

[33]   The trial court did not err in granting summary judgment in favor of Phoenix

       on Meadows’ claims of breach of contract and its request for specific

       performance because there is no genuine issue of material fact regarding

       Meadows’ own inability to perform under the Agreement. Similarly, the trial

       court properly granted summary judgment in favor of Phoenix on Meadows’

       claim of fraud because no genuine issue of material fact exists with regard to


       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016   Page 17 of 18
       Meadows having notice of the enforcement action. Accordingly, we affirm the

       judgment of the trial court.

[34]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-PL-300 | January 20, 2016   Page 18 of 18
