MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Feb 17 2016, 8:26 am

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.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Donald E. Wertheimer                                     Bryan H. Babb
South Bend, Indiana                                      Alan S. Townsend
                                                         Nathan T. Danielson
                                                         Bose McKinney & Evans LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

RYYZ, LLC; RYYZ 2, Corp.;                                February 17, 2016
and Joseph Jusewitz,                                     Court of Appeals Case No.
Appellants/Cross-Claim                                   45A03-1504-MF-131
Appellees/Defendants,                                    Appeal from the Lake Superior
       v.                                                Court
                                                         The Honorable Michael N.
Fannie Mae,                                              Pagano, Special Judge
Appellee/Cross-Claim                                     Trial Court Cause No.
Appellant/Plaintiff.                                     45D09-1308-MF-1



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 1 of 20
[1]   In September of 2012, Appellee/Cross-Claim Appellant/Plaintiff Fannie Mae

      initiated a foreclosure action against Appellants/Cross-Claim

      Appellees/Defendants RYYZ, LLC; RYYZ 2, Corp.; and Joseph Jusewitz

      (collectively, “Appellants”) in connection with two commercial real estate

      loans. As a part of the foreclosure action, Fannie Mae sought a money

      judgment and decree of foreclosure relating to an apartment complex located in

      Gary, commonly known as Westbrook Apartments (the “Apartment

      Complex”), which served as collateral for the loans. During the course of the

      underlying proceedings, Appellants caused numerous delays and committed

      numerous discovery violations. As an eventual sanction for Appellants’

      numerous discovery violations, on February 5, 2015, the trial court issued an

      order of default in favor of Fannie Mae.


[2]   Appellants appeal the trial court’s order granting a default judgment in favor of

      Fannie Mae arguing that, while it may have been appropriate to impose

      sanctions against them in light of their admitted numerous discovery violations,

      the trial court nonetheless abused its discretion in imposing the “ultimate

      sanction” rather than other potential lesser sanctions. We affirm the judgment

      of the trial court.



                            Facts and Procedural History




      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 2 of 20
              I. The Appellants, Loans, and Loan Documents
                                          A. The Appellants
[3]   Jusewitz owns 95% of the ownership of RYYZ, LLC (the “LLC”) and RYYZ

      2, Corporation (the “Corporation”). Jusewitz resides in New York. He also

      appears to maintain a residence in Israel. Nediva Schwarz serves as Jusewitz’s

      secretary, the managing member of the LLC, and a principal of both the LLC

      and the Corporation.


                           B. The Loans and Loan Documents
[4]   The commercial loans at issue (the “Loans”) are secured by the Apartment

      Complex and guaranteed by Jusewitz. The Loans are cross-defaulted, with a

      breach under any of the loan documents executed in connection with the Loans

      (collectively, the “Loan Documents”) constituting a beach under all other Loan

      Documents.


                      1. The Phase I Loan and Associated Loan Documents

[5]   On March 19, 2007, the LLC executed and delivered to Arbor Commercial

      Funding, LLC (“Arbor”) a promissory note in the original amount of

      $10,500,000.00 (the “Phase I Note”). Also on March 19, 2007, to secure its

      obligations associated with the Phase I Note, the LLC executed and delivered a

      mortgage, assignment of rents, and security agreement (“Phase I Mortgage”) on

      the portion of the Apartment Complex commonly known as Westbrook

      Apartments Phase I, which includes 356 rental units and all associated property

      (collectively, the “Phase I Mortgaged Property”). The Phase I Mortgage was

      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 3 of 20
      recorded in the Lake County Recorder’s Office and the liens associated with the

      Phase I Mortgaged Property were perfected via the filing and recording of

      various financing statements. To further secure its obligations under the Phase

      I Note, the LLC also executed a replacement reserve and security agreement

      with Arbor (the “Phase I Replacement Reserve Agreement”). An

      “Acknowledgment and Agreement of Key Principal to Personal Liability for

      Exceptions to Non-Recourse Liability” (“Key Principal Agreement”) was also

      executed by Jusewitz and attached to the Phase I Loan. Pursuant to the Key

      Principal Agreement, Jusewitz is personally liable for all amounts for which the

      LLC is personally liable under the Phase I Note. The Phase I Loan and Loan

      Documents were assigned by Arbor to Fannie Mae on March 19, 2007.


                     2. The Phase II Loan and Associated Loan Documents

[6]   On January 2, 2009, the Corporation executed and delivered to Arbor a

      promissory note in the original amount of $3,005,800.00 (the “Phase II Note”).

      Also on January 2, 2009, to secure its obligations associated with the Phase II

      Note, the Corporation executed and delivered a mortgage, assignment of rents,

      and security agreement (“Phase II Mortgage”) on the portion of the Apartment

      Complex commonly known as Westbrook Apartments Phase II, which includes

      140 rental units and all associated property (collectively, the “Phase II

      Mortgaged Property”). The Phase II Mortgage was recorded in the Lake

      County Recorder’s Office and the liens associated with the Phase II Mortgaged

      Property were perfected via the filing and recording of various financing

      statements. To further secure its obligations under the Phase II Note, the

      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 4 of 20
      Corporation executed a replacement reserve and security agreement with Arbor

      (the “Phase II Replacement Reserve Agreement”). Jusewitz and the LLC also

      each executed an absolute, unconditional, and irrevocable personal guaranty,

      pursuant to which they each guaranteed the payment of the Phase II Note.

      Jusewitz’s guaranty was executed by Jusewitz, personally (the “Jusewitz

      Guaranty”), and the LLC’s personal guaranty was executed by Jusewitz as the

      LLC’s “Sole Member.” Appellee’s App. p. 354. The Phase II Loan and the

      Loan Documents were assigned by Arbor to Fannie Mae on January 2, 2009.


                                          3. Collateral Mortgage

[7]   In order to further secure the obligations due and owing under the Loan

      Documents, the LLC executed and delivered a second mortgage on the Phase I

      Mortgaged Property (the “Collateral Mortgage). The Collateral Mortgage was

      executed by Jusewitz as “Member” of the LLC. Appellee’s App. p. 359. The

      Collateral Mortgage was recorded in the Lake County Recorder’s Office and it

      secures the indebtedness due under both the Phase I and Phase II Notes.


      4. Jusewitz’s Financial Reporting Requirements Under the Jusewitz Guaranty

[8]   Sections seventeen and eighteen of the Jusewitz Guaranty impose the following

      financial reporting requirements on Jusewitz:


              17. [Jusewitz] shall furnish to Lender within 45 days after the
              end of each fiscal quarter of the Borrower (i) a statement signed
              by [Jusewitz] disclosing all real estate holdings located in the
              United States of America owned by [Jusewitz], and (ii) copies of
              [Jusewitz’s] most recent bank and brokerage account statements
              which verify the amount of Liquid Assets in accounts maintained

      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 5 of 20
              in the United States financial institutions.

              18. [Jusewitz] covenants and agrees to maintain at all times
              during the Loan term (i) Net Worth of not less than
              US$5,000,000.00 in real estate holdings located in the United
              States of America and (ii) a minimum of US$500,000.00 in
              Liquid Assets in accounts maintained in United States financial
              institutions.


      Appellee’s App. p. 347. The Jusewitz Guaranty defined the terms “Net Worth”

      and “Liquid Assets” and indicated that “[f]ailure of [Jusewitz] to comply with

      the terms and conditions of Sections 17 and 18 above shall and may be deemed

      by the Lender to be a default under the Loan Documents.” Appellee’s App. pp.

      347-48.


[9]   Over a fourteen-month period between January of 2010 and March of 2011,

      Arbor, which maintained custodial duties relating to the Loans and Loan

      Documents, made five separate requests for updated personal financial

      statements from Jusewitz. No statements were provided until April of 2011 and

      November of 2011. Neither the April nor the November statement reflected the

      liquid assets required by the Jusewitz Guaranty. A March 21, 2012 bank

      statement for Jusewitz’s personal bank account indicated an account balance of

      $500,122.00. However, an April 1, 2012 bank statement provided for the same

      account showed $0.00 in liquid assets.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 6 of 20
       II. The 2010 Fire, Payment Issues, and Mechanic’s Liens
                                            A. The 2010 Fire
[10]   On May 22, 2010, a fire affecting four apartment units occurred at the

       Apartment Complex. The fire was first reported to Arbor, via telephone call,

       on July 6, 2010. During the July 6, 2010 telephone call, Arbor explained the

       procedures and requirements under the Loan Documents effective in the event

       of a fire. The matters discussed during the July 6, 2010 telephone call were

       reiterated in email correspondence delivered by Arbor to the Appellants’

       representatives.


[11]   On December 28, 2010, insurance proceeds associated with the fire (the “Fire

       Proceeds”) were received by Arbor. The next day, on December 29, 2010,

       Arbor placed those funds into an interest-bearing insurance escrow account. In

       emails dated January 5, February 14, August 31, September 1, and September

       16, 2011, Arbor informed the Appellants of various requirements under the

       Loan Documents relating to the fire loss and the distribution of the Fire

       Proceeds, including actions that must be taken by the Appellants. In these

       emails, Arbor also warned the Appellants that they were not currently

       complying with the requirements of the Loan Documents in connection with

       their handling of the fire loss.


[12]   In February and April of 2011, Arbor conducted telephone conferences with

       Schwarz, during which a number of the requirements necessary for release of

       the Fire Proceeds to the Appellants were explained. During these


       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 7 of 20
       conversations, Arbor clarified that the Appellants’ perceived failures to comply

       with the requirements of the Loan Documents, including Jusewitz’s failure to

       provide financial information as required by the Jusewitz Guaranty, had to be

       resolved before the Fire Proceeds could be distributed. These conversations

       were confirmed in a series of emails from Arbor to Schwarz dated between

       February 24, 2011 and April 28, 2011.


[13]   Arbor subsequently determined that the repairs necessary to complete the fire

       restoration would cost approximately $106,000.00, which exceeded the amount

       of Fire Proceeds received by Arbor. In August of 2011, Arbor informed the

       Appellants that co-payable checks could be arranged to pay a third-party

       contractor for the restoration if the restoration work was completed in a manner

       consistent with the requirements of the Loan Documents. The Appellants,

       however, never completed any restoration work. As a result, the Fire Proceeds

       were never distributed.1


                                           B. Payment Issues
[14]   Payments on the Phase I Loan were delinquent and paid after their due dates

       for all months between October of 2011 and March of 2012. Payments on the

       Phase II Loan were delinquent and paid after their due dates for the months of




       1
         Fannie Mae’s judgment provides a credit to the Appellants for the portion of the Fire
       Proceeds remaining in the insurance escrow account, plus interest, less a small payment that
       was made to an insurance adjuster.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 8 of 20
       October and December of 2011 and February of 2012. No monthly payments

       were made on either Loan after July of 2012.


                                         C. Mechanic’s Liens
[15]   In the spring of 2012, mechanic’s liens totaling approximately $29,500.00 were

       filed against the Phase I Mortgaged Property (the “Liens”). Fannie Mae

       demanded that the LLC and Jusewitz take the necessary steps to have the Liens

       released, but the Liens were never released. The holders of the Liens were

       named as defendants in the Amended Complaint, and a judgment foreclosing

       and barring any interests of these parties was entered on October 22, 2013.


        III. The Parties’ Pre-Trial Actions and the Trial Court’s
                              Default Order
             A. Initiation of Lawsuit and Fannie Mae’s Motion for
                               Summary Judgment
[16]   On September 26, 2012, Fannie Mae filed its complaint, seeking to foreclose on

       the mortgages. Fannie Mae sought leave to file an amended complaint to

       modify the relief sought because of the Liens that had been filed against the

       property but not released. The trial court granted Fannie Mae’s request, and on

       June 4, 2013, Fannie Mae filed its amended complaint. The amended

       complaint added a count seeking personal liability against Jusewitz under

       certain provisions of the Phase I Loan Documents.


[17]   On November 15, 2013, Fannie Mae filed a motion for summary judgment,

       supporting designation of evidence, and memorandum. After numerous delays,

       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 9 of 20
       Appellants filed their response to Fannie Mae’s motion and supporting

       documentation on January 31, 2014. Also on January 31, 2014, Appellants

       filed a counterclaim against Fannie Mae. On May 12, 2014, the trial court

       conducted a hearing on Fannie Mae’s motion. Following the hearing, the trial

       court issued an order indicating that in light of issues raised in Appellants’

       counter-claim, the issues presented in Fannie Mae’s summary judgment motion

       needed to be re-briefed.


[18]   Pursuant to the trial court’s order, Fannie Mae filed a second motion for

       summary judgment, supporting designation of evidence, and memorandum on

       June 13, 2014. Appellants filed a response to Fannie Mae’s motion on July 18,

       2014. Following a September 29, 2014 hearing, the trial court issued an order

       denying Fannie Mae’s second motion for summary judgment.


                                B. Issues Relating to Discovery
[19]   After denying Fannie Mae’s motion for summary judgment, the trial court

       issued a scheduling order in which it set a discovery deadline of December 19,

       2014. The trial court’s order indicated that with respect to discovery, “[n]o

       extensions will be permitted without court approval.” Appellee’s App. p. 950.

       The trial court also issued the following warning to the parties: “And

       gentlemen, I will sanction if there’s what I consider obstreperous or

       inappropriate delays in scheduling [depositions] and the like. And that sanction

       could include the ultimate one, so be warned.” 9/29/2014 Tr. p. 45.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 10 of 20
[20]   The parties subsequently filed an agreed request for an extension to complete

       discovery because Appellants had not yet completed their written discovery

       responses or made Schwarz or Jusewitz available for depositions. The trial

       court granted the parties’ joint request, ordering “that all discovery in this

       matter shall be completed by no later than January 16, 2015.” Appellee’s App.

       p. 956 (emphasis added).


                                            1. Written Discovery

[21]   Fannie Mae served requests for the production of certain documents,

       interrogatories, and requests for admissions on the Appellants on October 14,

       2014 and October 20, 2014. Fannie Mae’s written discovery requests included

       requests for materials relating to Appellants’ counterclaim, the Apartment

       Complex, the fire, the accounts associated with the Replacement Reserve

       Agreements, and all relevant correspondence between Appellants and Arbor or

       Fannie Mae. In a December 29, 2014 email correspondence between counsel

       for Appellants and counsel for Fannie Mae, Appellants’ counsel indicated that

       the Appellants would provide their responses to Fannie Mae’s written discovery

       requests on or before December 31, 2014, but may not be able to provide any

       responsive documents until January 13, 2015, the date set for the depositions of

       Schwarz and Jusewitz.


[22]   On December 31, 2014, Appellants served their respective written responses to

       Fannie Mae’s requests for admissions and interrogatories. Fannie Mae’s

       interrogatories to Jusewitz included requests that Judewitz identify all accounts,

       real estate, and entities in which he owns or owned an interest. Jusewitz’s
       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 11 of 20
       response to each of these interrogatories was “[t]his answer will be provided.”

       Appellee’s App. pp. 1011-02. Jusewitz never provided any supplemental

       responses to these interrogatories. Appellants did not provide any responses to

       Fannie Mae’s request for the production of documents on December 31, 2014,

       and the only responsive documents Fannie Mae ever received consisted of two

       pages which were handed to counsel for Fannie Mae by Schwarz during her

       deposition.


                                                 2. Depositions

[23]   Fannie Mae first attempted to schedule depositions for Jusewitz and Schwarz

       on October 20, 2014. In written correspondence dated November 24,

       December 8, December 11, December 18, and December 22, 2014, counsel for

       Fannie Mae again requested deposition dates for Jusewitz and Schwarz. On

       December 22, 2014, counsel for Fannie Mae notified Appellants’ counsel that

       because no deposition dates had been offered, Fannie Mae intended to take the

       depositions of Jusewitz and Schwarz on January 13, 2015, at Appellants’

       counsel’s office. Notices of these depositions were delivered on December 23,

       2014. In emails dated December 26, 2014 and January 8, 2015, counsel for

       Fannie Mae attempted to confirm that Jusewitz and Schwarz would be made

       available for depositions on January 13, 2015. Appellants’ counsel eventually

       confirmed that Schwarz would be available, but indicated that he was uncertain

       whether Jusewitz would be available.


[24]   Counsel for Fannie Mae took Schwarz’s deposition on January 13, 2015.

       Immediately prior to Schwarz’s deposition, Appellants’ counsel provided
       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 12 of 20
       Fannie Mae’s counsel with a handwritten note which was purported to be

       written by Jusewitz’s doctor in Israel. This note indicated that Jusewitz had a

       “common cold” and would not be available for a deposition on January 13,

       2015, as he could not fly to the United States between January 11 and January

       15, 2015. Appellee’s App. p. 1023. The note did not indicate why Jusewitz

       had been unable to travel to the United States for a deposition prior to January

       11, 2015. At the conclusion of Schwarz’s deposition, counsel for Fannie Mae

       again inquired as to when Jusewitz would be available for a deposition.


[25]   In email and telephone correspondence with Appellants’ counsel on January 16

       and January 19, 2015, counsel for Fannie Mae again requested deposition dates

       for Jusewitz. No dates were provided at this time. In email correspondence

       dated January 19, 2015, counsel for Fannie Mae indicated that if Jusewitz

       would not make himself available for a deposition on January 22, 2015, Fannie

       Mae would be forced to seek assistance or relief from the trial court. On

       January 20, 2015, Appellants’ counsel informed counsel for Fannie Mae via

       email that Jusewitz would not be available for a deposition on January 22,

       2015. Jusewitz failed to make himself available for a depositions despite at least

       ten requests from Fannie Mae’s counsel over a period of more than thirteen

       weeks.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 13 of 20
        C. Fannie Mae’s Request for Sanctions and the Trial Court’s
                             Default Order
[26]   Pursuant to the scheduling order issued by the trial court, Fannie Mae filed its

       witness list, exhibit list, and contentions on January 19, 2015. Appellants never

       filed a witness list, exhibit list, or any contentions.


[27]   On January 22, 2015, Fannie Mae filed a verified motion seeking sanctions for

       Appellants’ numerous discovery violations (the “Sanctions Motion”). Fannie

       Mae also requested a telephonic conference for the purpose of discussing

       scheduling issues, outstanding discovery issues, and the Sanctions Motion.


[28]   On January 23, 2015, the trial court conducted a telephonic hearing on the

       Sanctions Motion. Counsel for both parties appeared by telephone and were

       given the opportunity to present argument regarding the allegations made in the

       Sanctions Motion. Counsel for Appellants did not contest the allegations made

       in the Sanctions Motion during the hearing. At the conclusion of the hearing,

       the trial court granted the Sanctions Motion. Specifically, the trial court stated

       the following:

               Well, gentlemen, I have rarely seen a case that has been the result
               of a defendant stonewalling quite as bad as this one. Um, I
               believe, uh, Fannie Mae lays it out fairly well in their brief - - or
               in their motion toward the end where they summarize the
               difficulties, uh, regarding foot-dragging and stonewalling. That is
               exactly the way I am gonna characterize it.

               And in [this] rare instance, given the totality of the circumstances
               of this case, I am going to grant the ultimate sanction of default.
               And I am going to dismiss with prejudice the Counterclaim.
       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 14 of 20
       1/23/2015 Tr. pp. 10-11. The trial court then entered an order (the “Sanctions

       Order”), in which it found that in light of the largely-uncontested allegations

       contained in the Sanctions Motion, dismissal of Appellants’ Counterclaim and

       the entry of default judgment in favor of Fannie Mae on all claims was

       appropriate. The Sanctions Order vacated the scheduled trial date and

       instructed Fannie Mae to tender a proposed entry of judgment, supported by

       affidavits and consistent with the Sanctions Order, within fourteen days.


[29]   On February 5, 2015, Fannie Mae filed a proposed judgment and supporting

       affidavits. On February 5, 2015, the trial court entered judgment in favor of

       Fannie Mae; a decree of foreclosure; and a dismissal, with prejudice, of

       Appellants’ counterclaim.


[30]   On March 6, 2015, Appellants’ filed a motion to correct error. This motion was

       not supported by affidavit or verified statements. On March 9, 2015,

       Appellants filed a supplemental submission of Jusewitz and additional

       purported medical records. The trial court denied Appellants’ motion to correct

       error on March 10, 2015. This appeal follows.



                                  Discussion and Decision
[31]   Appellants contend that the trial court abused its discretion in entering default

       judgment in favor of Fannie Mae as a sanction for Appellants’ admitted

       discovery violations.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 15 of 20
                                      I. Standard of Review
[32]   Trial Rule 37(B)(2)(c) provides that one of the appropriate sanctions for failure

       to comply with a discovery order is “rendering a judgment by default against

       the disobedient party.” The Indiana Supreme Court has held that appellate

       courts “assign the selection of an appropriate sanction for a discovery violation

       to the trial court’s sound discretion.” Whitaker v. Becker, 960 N.E.2d 111, 115

       (Ind. 2012) (citing McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind.

       1993)). This is in large part because “[t]rial judges stand much closer than an

       appellate court to the currents of litigation pending before them, and they have

       a correspondingly better sense of which sanctions will adequately protect the

       litigants in any given case, without going overboard, while still discouraging

       gamesmanship in future litigation.” Id. “Discretion is a privilege afforded a

       trial court to act in accord with what is fair and equitable in each case.”

       McCullough, 605 N.E.2d at 180 (citing Myers v. Myers, 560 N.E.2d 39, 42 (Ind.

       1990)).


[33]   As such, when faced with a challenge to a sanction imposed by a trial court, we

       review the trial court’s sanction only for an abuse of its discretion. Whitaker,

       960 N.E.2d at 115.


               An abuse of discretion occurs when the trial court’s decision is
               against the logic and natural inferences to be drawn from the
               facts of the case. [Smith v. Smith, 854 N.E.2d 1, 4 (Ind. Ct. App.
               2006)]. Because of the fact-sensitive nature of discovery issues, a
               trial court’s ruling is given a strong presumption of correctness.
               Id. “Absent clear error and resulting prejudice, the trial court’s


       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 16 of 20
               determinations with respect to violations and sanctions should
               not be overturned.” Id. at 4-5.


       Peters v. Perry, 877 N.E.2d 498, 499 (Ind. Ct. App. 2007).


                                               II. Analysis
[34]   Fannie Mae argues that Appellants have waived their appellate challenge to the

       alleged error because Appellants have failed to present cogent argument

       supported by citation to relevant authority and portions of the record in support

       of their contention. Fannie Mae additionally argues that Appellants have

       waived their appellate challenge to the alleged error because Appellants’ brief

       contains numerous violations of the Appellate Rules 2 which, combined with

       their failure to provide cogent argument, substantially impedes our review of

       the issue presented on appeal. We agree.


[35]   Indiana Appellate Rule 46(A)(8)(a) provides that the argument section of an

       appellant’s brief “must contain the contentions of the appellant on the issues

       presented, supported by cogent reasoning. Each contention must be supported

       by citations to the authorities, statutes, and the Appendix or parts of the Record




       2
         In addition to alleging that Appellants failed to present cogent arguments supported by
       citation to relevant authority and portions of the record, Fannie Mae alleges that Appellants’
       statement of facts is largely devoid of any citation to the record, is not set forth in narrative
       form, and is “rife with argument.” Appellee’s Br. p. 13. Fannie Mae also alleges that
       Appellants’ summary of the argument is filled with allegations which contradict and go
       beyond the record and that Appellants improperly utilize a footnote citation method which
       contravenes Indiana’s Appellate Rules. After reviewing Appellants’ brief, we find these
       allegations to be true.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 17 of 20
       on Appeal relied on[.]” An appellant’s failure to comply with Appellate Rule

       46(A)(8)(a) results in waiver of the appellant’s claim on appeal. See generally,

       Pitman v. Pitman, 717 N.E.2d 627, 633 (Ind. Ct. App. 1999) (providing that we

       will not consider a claimant’s assertions on appeal where the claimant has not

       presented a cogent argument supported by legal authority and references to the

       record as required by the rules). While we generally prefer to decide cases on

       the merits rather than on technicalities, we will deem alleged errors waived

       where an appellant’s noncompliance with the Indiana Appellate Rules is so

       substantial that it impedes our consideration of said alleged errors. See Nehi

       Beverage Co., Inc. of Indpls. v. Petri, 537 N.E.2d 78, 81 (Ind. Ct. App. 1989).

       Further, because appellants bear the burden of demonstrating error, we will not

       sift through a record to locate any potential error so as to state an appellant’s

       case for him. Id.


[36]   In arguing that the trial court abused its discretion in entering default judgment

       for Fannie Mae, Appellants do not claim on appeal that they should not have

       been sanctioned for their failure to comply with the discovery rules as they

       acknowledge that they have committed various discovery violations.

       Appellants merely make the bald assertion that the trial court should have

       imposed a lesser sanction against them. In making this assertion, however,

       Appellants fail to cite to any relevant authority or evidence in the record which

       would support their position. Further, although Appellants’ brief also contains

       the bald assertions that the trial court “did not gather all relevant information

       before making its decision” and should not have found Jusewitz’s claim of poor


       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 18 of 20
       health to be suspect, see Appellant’s Br. p. 9, Appellants’ brief contains no

       explanation as to what relevant information the trial court should have gathered

       before making its decision or citation to any evidence suggesting that Jusewitz’s

       alleged poor health legitimately prevented his ability to travel or appear for a

       deposition.


[37]   Our review of Appellants’ brief reveals that Appellants have not presented a

       cogent argument supported by legal authority and references to the record in

       support of their claim as is required by Appellate Rule 46(A)(8)(a). As it is not

       our place to do so, we will not comb through the record in an attempt to make

       Appellants’ case for them. See Petri, 537 N.E.2d at 81. We therefore conclude

       that Appellants have waived their appellate challenge to the propriety of the

       trial court’s award of default judgment for Fannie Mae. 3 Further, because we




       3
         Appellants also assert that default judgment was inappropriate because their counsel (1) was
       allegedly misled by counsel for Fannie Mae and (2) was asked to comment on a document
       which he had not been afforded an opportunity to review. However, we note that Appellants
       not only fail to provide citation to relevant authority or relevant portions of the record in
       support of these assertions in their appellate brief, but also that review of the record reveals
       that these claims were not even presented before the trial court. With respect to Appellants’
       claim that their counsel was misled by Fannie Mae’s counsel, review of the record reveals that
       Appellants’ counsel never indicated at any point during the proceedings that he felt that he
       had been misled by Fannie Mae’s counsel. With respect to the assertion that Appellants’
       counsel was asked to comment on a document he had not been afforded an opportunity to
       review, the record indicates that the document in question was provided to Appellants’
       counsel the day before the hearing and counsel explicitly stated during the hearing in which
       the document was discussed that he was familiar with its contents and was prepared to address
       the allegations set forth therein. The fact that Appellants failed to raise either of these
       assertions below provides an additional reason why these assertions may not be presented on
       appeal. See Pitman, 717 N.E.2d at 633 (providing that when an issue is not presented before
       the trial court, appellate review of that issue is waived).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 19 of 20
       reach this conclusion, we need not consider the alternative counter-claim

       arguments presented by Fannie Mae.


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


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-MF-131 | February 17, 2016   Page 20 of 20
