MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Mar 28 2019, 8:15 am
regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
John G. Shubat                                           Michael A. Wukmer
Robert J. Nice                                           Derek R. Molter
The Nice Law Firm, LLP                                   Ice Miller LLP
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Linkmeyer Development II,                                March 28, 2019
LLC, Linkmeyer Development                               Court of Appeals Case No.
Services, LLC, Brian R. Bischoff,                        18A-PL-1421
and Steve T. Linkmeyer,                                  Appeal from the Dearborn Circuit
Appellants-Plaintiffs,                                   Court
                                                         The Honorable James D.
        v.                                               Humphrey, Judge
                                                         Trial Court Cause No.
City of Lawrenceburg, Indiana,                           15C01-1512-PL-89
Appellee-Defendant.



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1421 | March 28, 2019                 Page 1 of 10
                                       Statement of the Case
[1]   Linkmeyer Development II, LLC; Linkmeyer Development Services, LLC;

      Brian R. Bischoff; and Steve T. Linkmeyer (“Steve”) (collectively “Linkmeyer”)

      appeal the trial court’s entry of summary judgment for the City of

      Lawrenceburg (“the City”). Linkmeyer presents two issues for our review,

      which we consolidate and restate as whether the trial court erred when it

      entered summary judgment in favor of the City.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Around June of 2009, Linkmeyer approached the City and requested a

      $3,000,000 loan to facilitate a development project on seventy-seven acres to be

      annexed by the City. That project included the Waterview apartment complex,

      which would be located on sixteen of the seventy-seven acres. Thereafter,

      Linkmeyer planned to submit an application to the Indiana Housing and

      Community Development Authority for approval of tax credits for additional

      funding of the project. In an effort to maximize the amount of tax credits it

      would receive, Linkmeyer had to show “government participation” in the

      project. Tr. at 6. Accordingly, on November 13, Mayor Bill Cunningham and

      an officer of the Lawrenceburg Municipal Utilities, Charles Davis, signed a

      letter that stated as follows:


              The City of Lawrenceburg, Indiana, wishes to encourage
              development of quality affordable housing.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1421 | March 28, 2019   Page 2 of 10
              Therefore, the City of Lawrenceburg has approved, through the
              Lawrenceburg Planning Commission, funding that specifically
              enhances the Water[v]iew Apartment Development.

              This funding, or monetary contribution, will be provided by the
              City to the Water[v]iew Development in the form of
              infrastructure (utility lines). The area in which the development
              is to be constructed is a previously undeveloped area of the City
              and the utility lines will serve only the Water[v]iew Apartments
              at this time. The value of the approved utility line installation
              contribution to the Water[v]iew Development [is] estimated to be
              in excess of $295,000.00.


      Appellants’ App. Vol. II at 40 (“the Letter”).


[4]   On November 30, Linkmeyer and the City executed a contract entitled

      “Development Agreement Between the City of Lawrenceburg, Indiana and

      Linkmeyer Development, LLC.” Id. at 93. In addition, the parties executed a

      $3,000,000 promissory note and a mortgage in favor of the City. And on

      January 19, 2010, the City adopted a resolution approving a fiscal plan for the

      annexed property. That fiscal plan stated that Linkmeyer was solely

      responsible for constructing certain improvements to the annexed property,

      including water lines and sewer lines, and that the City would “incur no

      expense for these improvements.” Appellants’ App. Vol. II at 105.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1421 | March 28, 2019   Page 3 of 10
[5]   In conjunction with Linkmeyer’s construction of the Waterview apartment

      complex, the City ran electricity to the complex,1 but the City did not construct

      water or sewer lines running to the complex.2 Rather, the City informed

      Linkmeyer that Linkmeyer was responsible for the cost of the water and sewer

      line extensions. Thereafter, Linkmeyer defaulted on the promissory note and

      filed a complaint against the City alleging breach of contract. The City filed an

      answer and asserted counterclaims and a third party complaint. The City

      alleged in its counterclaims and third party complaint that Linkmeyer and some

      of the third-party defendants3 had defaulted on the promissory note, and it

      sought to foreclose on the mortgage.


[6]   On November 3, 2016, the City filed a motion for summary judgment, and

      Linkmeyer filed a response. Following a hearing, the trial court granted the

      City’s motion. This appeal ensued.4




      1
        The fiscal plan stated that Linkmeyer was responsible for reimbursing Duke Energy “for any expenses
      incurred” in running electricity to the complex. Appellants’ App. Vol. II at 105.
      2
        Linkmeyer states that “the City stopped the [water and sewer] lines more than a mile away” from the
      apartment complex. Appellants’ Br. at 20.
      3
          Steven, Bischoff, and their respective wives signed personal guaranties to secure the promissory note.
      4
        Linkmeyer purports to appeal from a final judgment. However, our review of the record shows that claims
      against one or more third-party defendants are still pending. The summary judgment order does not resolve
      all claims against all parties, and the trial court did not include in its order the “magic language” required
      under Indiana Trial Rule 56(C). Regardless, because the trial court’s order includes an order for the sale of
      the possession of real property, this appeal is an interlocutory appeal as of right under Indiana Appellate Rule
      14(A).



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1421 | March 28, 2019                      Page 4 of 10
                                     Discussion and Decision
[7]   We review an order for summary judgment de novo, which is the same standard

      of review applied by the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

      2014). The moving party must “affirmatively negate an opponent’s claim” by

      demonstrating that the designated evidence raises no genuine issue of material

      fact and that the moving party is entitled to judgment as a matter of law. Id.

      (internal quotation marks omitted). The burden then shifts to the nonmoving

      party to demonstrate a genuine issue of material fact. Id. However, the party

      appealing from a summary judgment decision has the burden of persuading this

      Court that the grant or denial of summary judgment was erroneous. Knoebel v.

      Clark Cty. Sup. Ct. No. 1, 901 N.E.2d 529, 531-32 (Ind. Ct. App. 2009). A trial

      court’s findings on summary judgment aid our review by giving insight into the

      rationale for its decision, but they are neither required nor binding, and they do

      not change our standard of review. Kesling v. Kesling, 83 N.E.3d 111, 116 (Ind.

      Ct. App. 2017), trans. denied. We will affirm the trial court’s entry of summary

      judgment if it can be sustained on any basis supported by the evidence. Id.


[8]   In its order, the trial court found in relevant part that the City was entitled to

      summary judgment on Linkmeyer’s breach of contract claim because the Letter

      “is not a contract because there was no consideration for the City’s promise to

      provide utilities.” Appellants’ App. Vol. II at 25. The court also found that

      summary judgment for the City was warranted on Linkmeyer’s promissory

      estoppel claim because Linkmeyer could not show reasonable reliance on the

      City’s alleged promise to run utilities to Waterview. On appeal, Linkmeyer

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1421 | March 28, 2019   Page 5 of 10
       maintains that genuine issues of material fact preclude summary judgment on

       both claims. We address each in turn.


                                              Breach of Contract

[9]    To prove breach of contract, Linkmeyer must prove the existence of a contract,

       that the City breached the contract, and damages. Gerdon Auto Sales, Inc. v. John

       Jones Chrysler Dodge Jeep Ram, 98 N.E.3d 73, 78 (Ind. Ct. App. 2018), trans.

       denied. The initial burden was on the City, as the summary judgment movant,

       to demonstrate the absence of any genuine issue of material fact with respect to

       whether the Letter included consideration and, thus, was a contract. The trial

       court found that the Letter “is not a contract because there was no

       consideration for the City’s promise to provide utilities.” Appellants’ App. Vol.

       II at 25. Thus, the court concluded that the City had satisfied its burden to

       negate an element of Linkmeyer’s breach of contract claim and that Linkmeyer

       had not demonstrated a genuine issue of material fact.


[10]   On appeal from the entry of summary judgment, Linkmeyer has the burden of

       persuasion to show that the City had failed to negate an element of Linkmeyer’s

       breach of contract claim. See Knoebel, 901 N.E.2d at 531-32. However, in its

       ten-page argument addressing breach of contract, Linkmeyer fails to cite any

       legal authority other than that setting out our standard of review. Remarkably,

       Linkmeyer neither sets out the elements of a valid contract nor the elements of

       a breach of contract claim. See Ind. Appellate Rule 46(A)(8)(a). And the word

       “consideration” does not appear anywhere in Linkmeyer’s brief on appeal.

       Linkmeyer’s argument consists only of legally unsupported assertions that the
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1421 | March 28, 2019   Page 6 of 10
       City had “promise[d] to take the utilities to the Waterview site” and that the

       designated evidence “establishes the factual basis for the allegation that a

       contract was formed” by the Letter. Appellants’ Br. at 7, 12.


[11]   Further, the trial court found that, “[p]ursuant to the integration clause [in the

       November 30 development agreement, Linkmeyer] cannot raise any prior

       understanding as a defense to the breach of [the] promissory note, mortgage

       and personal guarantee.” Appellants’ App. Vol. II at 29. In its brief on appeal,

       Linkmeyer does not challenge that finding or address the effect of the

       integration clause on its breach of contract claim. Rather, Linkmeyer only

       addresses the integration clause for the first time in its reply brief. Accordingly,

       Linkmeyer has waived that issue. See Naville v. Naville, 818 N.E.2d 552, 553 n.1

       (Ind. Ct. App. 2004).


[12]   Linkmeyer has not satisfied its burden to persuade us by cogent reasoning and

       citations to the authorities relied on that the City failed to negate an element of

       Linkmeyer’s breach of contract claim. See App. R. 46(A)(8)(a). Thus, we

       cannot say that the trial court erred when it entered summary judgment for the

       City on that claim.


                                             Promissory Estoppel

[13]   Linkmeyer also contends that the trial court erred when it concluded that there

       were no genuine issues of material fact precluding summary judgment on the

       promissory estoppel claim. As we recently explained:




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1421 | March 28, 2019   Page 7 of 10
               “Estoppel is not generally applicable against government entities
               for the actions of public officials.” Biddle v. BAA Indianapolis,
               LLC, 860 N.E.2d 570, 581 (Ind. 2007). . . . However, “estoppel
               may be appropriate where the party asserting estoppel has
               detrimentally relied on [a] governmental entity’s affirmative
               assertion or on its silence where there was a duty to speak.”
               Equicor Dev., Inc. v. Westfield-Washington Twp. Plan Comm’n, 758
               N.E.2d 34, 39 (Ind. 2001). “[A] party asserting promissory
               estoppel must establish five elements: ‘(1) a promise by the
               promissor (2) made with the expectation that the promisee will
               rely thereon (3) which induces reasonable reliance by the
               promisee (4) of a definite and substantial nature and (5) injustice
               can be avoided only by enforcement of the promise.” Biddle, 860
               N.E.2d at 581 (quoting First Nat’l Bank of Logansport v. Logan Mfg.
               Co., 577 N.E.2d 949, 954 (Ind. 1991)). Also, with respect to a
               government entity, the party asserting promissory estoppel must
               show “that estoppel is not inconsistent with the public interest.”
               Muncie Indus. Revolving Loan Fund Bd. v. Ind. Constr. Corp., 583
               N.E.2d 769, 771 (Ind. Ct. App. 1991).


       Grdinich v. Plan Comm’n for Town of Hebron, ---N.E.3d ---, Docket No., 2019 WL

       966155, at *6 (Ind. Ct. App. Feb. 28, 2019).


[14]   Here, on summary judgment, the City argued in relevant part, and the trial

       court found in relevant part, that Linkmeyer could not have reasonably relied

       on the Letter when the fiscal plan, passed only two months later, on January

       19, 2010, expressly provided that Linkmeyer was “responsible for water and

       sanitary sewer utility costs.” Appellants’ App. Vol. II at 30. On appeal,

       Linkmeyer does not even set out the elements of a promissory estoppel claim




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1421 | March 28, 2019   Page 8 of 10
       but merely states, without citation to the record, 5 that the designated evidence

       shows that it reasonably relied on the City’s promise to run the utilities to

       Waterview. Further, Linkmeyer asserts, without citation to the designated

       evidence or relevant legal authority, that the fiscal plan does not negate the

       reasonable reliance element of equitable estoppel because it was “ambiguous”

       and “was not directly contradictory to Linkmeyer[]’s understanding of the

       City’s intent” to run utilities to the site. Id. at 20. Once again, Linkmeyer has

       not satisfied its burden of persuasion on appeal, and we cannot say that the trial

       court erred when it entered summary judgment for the City on the promissory

       estoppel claim.


                                                       Conclusion

[15]   A court which must search the record and make up its own arguments because

       a party has not adequately presented them runs the risk of becoming an

       advocate rather than an adjudicator. Young v. Butts, 685 N.E.2d 147, 151 (Ind.

       Ct. App. 1997). An appellate brief should not only present the issues to be

       decided on appeal, but it should be of material assistance to the court in

       deciding those issues. Id. On review, we will neither search the record to find a

       basis for a party’s argument nor search the authorities cited by a party in order

       to find legal support for its position. Id. A trial court’s summary judgment




       5
          Linkmeyer does not direct us to a single piece of designated evidence in its argument section on promissory
       estoppel. Linkmeyer’s broad reference to “the facts discussed, supra” at the opening of this section of its brief
       is woefully insufficient to satisfy its burden on appeal. Appellants’ Br. at 17.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1421 | March 28, 2019                      Page 9 of 10
       ruling is clothed with a presumption of validity, and the losing party has the

       burden of establishing that the trial court erred. Thomson Inc. v. Ins. Co. of N.

       Am., 11 N.E.3d 982, 994 (Ind. Ct. App. 2014), trans. denied. Linkmeyer has not

       met its burden of persuasion to show that the City failed to negate an element of

       Linkmeyer’s breach of contract or promissory estoppel claims, and we thus

       cannot say that the entry of summary judgment for the City was erroneous.


[16]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1421 | March 28, 2019   Page 10 of 10
