      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                   Jul 31 2020, 8:53 am

      court except for the purpose of establishing                                    CLERK
                                                                                  Indiana Supreme Court
      the defense of res judicata, collateral                                        Court of Appeals
                                                                                       and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Thomas D. Seal                                            Timothy K. Ryan
      Law Office of Thomas D. Seal                              Steven T. Henke
      Richmond, Indiana                                         Hackman Hulett LLP
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Robert J. White,                                          July 31, 2020
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                19A-CT-2764
              v.                                                Appeal from the Wayne Superior
                                                                Court
      Estate of Robert L. White,                                The Honorable Charles K. Todd,
      Appellee-Defendant.                                       Jr., Judge
                                                                Trial Court Cause No.
                                                                89D01-1512-CT-59



      Najam, Judge.


                                        Statement of the Case
[1]   Robert J. White appeals the trial court’s entry of summary judgment in favor of

      the Estate of Robert L. White (“Estate”) on White’s second amended
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020                       Page 1 of 11
      complaint, which alleged fraud and waste. 1 White raises three issues for our

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

      it entered summary judgment in favor of the Estate.


[2]   We affirm.

                                   Facts and Procedural History
[3]   David Showalter, Jr. had a longstanding oral agreement with White’s father.

      Pursuant to that oral agreement, White’s father gave Showalter the right to

      farm nearly 500 acres of farmland (“the Property”) in exchange for rent

      payments in the amount of $150 per tillable acre. Following the death of

      White’s father, the Estate continued this agreement with Showalter on an

      annual basis. White was aware that his father rented out the farm property, and

      he saw both Showalter’s father and Showalter farming tillable acreage on the

      Property. However, White never asked Showalter about the terms of the lease.


[4]   After his father died, White filed a will contest action that resulted in a

      Mediated Settlement Agreement (“Agreement”). According to the Agreement,

      the Estate agreed to sell the Property to White for $1,715,000. Also, White

      agreed that his possession of the Property is “subject to the rights of crop

      tenants to cultivate, tend and harvest growing crops for the 2015 crop year.”

      Appellee’s App. Vol. 2 at 18 (emphasis removed). White was aware of that




      1
        White also filed a claim for trespass against David. However, the trial court dismissed that claim on
      February 2, 2017.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020                     Page 2 of 11
      clause but did not know what the crop tenant’s rights were. However,

      following a conversation with his attorney, White concluded that he would

      have the right to unrestricted immediate possession of the entire Property.


[5]   At the closing on September 30, 2015, the executors of the Estate executed an

      Executors’ Deed and conveyed the Property to White subject to the same rights

      of the crop tenants. Following the closing, Showalter continued to “permit[]

      various pieces of equipment” to remain on the real estate. Id. at 31. Showalter

      also “asserted” to White that he and not White had the “exclusive right” to

      possession of all tillable acres pursuant to the oral agreement. Id. at 34.


[6]   Thereafter, White filed a complaint against the Estate, which, as amended,

      alleged that the Estate had committed fraud and waste. In particular, White

      alleged that the Estate was aware that White did not know about the terms of

      the oral lease and that, “in an effort to fraudulently induce” White into

      purchasing the Property, the Estate “failed to disclose” to him that the tillable

      acres were subject to the oral lease, which lease deprived him of the right to

      immediate unrestricted access to the Property. Id. at 34. He also alleged that

      the Estate had “damaged the [the Property] by recklessly removing items from

      the land.” Id. at 36. Furthermore, White alleged that the Estate had

      “abandoned numerous equipment [sic] . . . on the . . . Property,” which items

      White had to remove. Id.


[7]   In response, the Estate filed a motion for summary judgment. In that motion,

      the Estate asserted that White’s claim for fraud sounded in “constructive fraud


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020   Page 3 of 11
      rather than actual fraud.” Id. at 9 (emphasis removed). Specifically, the Estate

      alleged that White’s complaint failed to demonstrate that a duty existed

      between him and the Estate; that, even if a duty existed, White’s complaint

      failed to demonstrate a breach of that duty; and that White’s complaint

      demonstrated that he did not rely on the Estate’s silence but, rather, that he

      relied on the opinion of his attorney. As to White’s claim for waste, the Estate

      asserted that that claim must fail because the undisputed evidence demonstrated

      that no representative of the Estate entered the Property after the closing. In

      support of its motion, the Estate designated as evidence the mediated settlement

      agreement, the Executors’ Deed, and White’s deposition. White failed to

      respond to the motion or otherwise file any responsive pleadings to the motion

      for summary judgment. 2


[8]   Following a hearing on the Estate’s motion, the trial court found:


              Respectfully, the Court sees no need to go into significant detail
              in this Order regarding the elements for fraud, constructive fraud,
              or waste. . . . The Court finds that as a matter of law, and based
              solely on the designated evidence properly before the Court, that
              there is an absence of a genuine factual issue on at least one
              element of [White’s] claimed causes of action, which then is fatal
              to [White’s] claims. In summary, [the Estate] made a prima facie
              showing that there are no genuine issues of material fact and that
              [the Estate] is entitled to summary judgment as a matter of law
              on the claims within [White’s] complaint and [White] has not




      2
        White filed a brief in opposition to the Estate’s motion for summary judgment on January 24, 2019, but, on
      January 29, he filed a motion to withdraw the brief as untimely. The trial court granted White’s motion.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020                  Page 4 of 11
               designated specific facts in evidence pursuant to Trial Rule 56
               demonstrating the existence of a genuine issue for trial.


       Id. at 3-4 (footnote and citation omitted). Accordingly, the court entered

       summary judgment in favor of the Estate. This appeal ensued.


                                      Discussion and Decision

[9]    White asserts that the trial court erred when it entered summary judgment in

       favor of the Estate on his claims of fraud and waste. The trial court found, and

       White concedes, that he failed to timely respond to the Estate’s motion, to

       designate factual matters in dispute, or to designate any evidence in opposition

       to the Estate’s motion under Trial Rule 56(C). Thus, the resolution of the

       Estate’s motion depends entirely upon the Estate’s designated evidence

       although, as the trial court correctly noted, the Estate must still meet its burden

       to show that there is no genuine issue of material fact and that the Estate is

       entitled to judgment as a matter of law.


[10]   In addition, on appeal, White has failed to file an appendix or otherwise direct

       us to portions of the record where we could find the relevant documents or the

       facts that support his contentions. The Indiana Appellate Rules require

       appellants to include in their brief an argument section that “contain[s] the

       contentions of the appellant on the issues presented, supported by cogent

       reasoning. Each contention must be support by citation to the authorities,

       statutes, and the Appendix or parts of the Record on appeal relied on[.] Ind.

       Appellate Rule 46(A)(8)(a). Here, White has failed to comply with the

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020   Page 5 of 11
       appellate rules and, as a result, has failed to meet his burden on appeal to

       demonstrate that the trial court erred. Nevertheless, given that the Estate filed

       an appendix that includes the documents relevant to White’s appeal, and our

       preference for resolving issues on the merits, we will consider White’s

       arguments.


                                              Standard of Review

[11]   Our Supreme Court recently stated that:


               “When . . . review[ing] a grant or denial of a motion for
               summary judgment, we “stand in the shoes of the trial court.”
               We ask, “whether there is a genuine issue of material fact, and
               whether the moving party is entitled to judgment as a matter of
               law.” The party moving for summary judgment bears the burden
               of making a prima facie showing that there is no issue of material
               fact and that it is entitled to judgment as a matter of law. The
               burden then shifts to the non-moving party to show the existence
               of a genuine issue. On appellate review, we resolve “[a]ny doubt
               as to any facts or inferences to be drawn therefrom . . . in favor of
               the non-moving party.”


       Burton v. Benner, 140 N.E.3d 848, 851 (Ind. 2020) (internal citation and

       quotation omitted). “A defendant is entitled to judgment as matter of law when

       undisputed material facts negate at least one element of [a] plaintiff’s claim.”

       Colen v. Pride Vending Serv., 654 N.E.2d 1159, 1162 (Ind. Ct. App. 1995). The

       absence of a genuine factual issue on even just one element of a cause of action

       is fatal to that claim. Woods v. Qual-Craft Indus., Inc., 648 N.E.2d 1198, 1202

       (Ind. Ct. App. 1995).

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020   Page 6 of 11
[12]   On appeal, White asserts that the trial court erred when it granted summary

       judgment in favor of the Estate because it relied on the wrong standard of

       review and because there are genuine issues of material fact as to White’s

       claims for fraud and waste. 3 We address each argument in turn.


                                       Trial Court’s Standard of Review

[13]   White first asserts that the trial court misstated the holding in Woods and relied

       on the wrong standard of review when it stated that the “absence of a genuine

       factual issue on even just one element of a cause of action is fatal to that claim.”

       Appellee’s App. Vol. 2 at 3. Specifically, White asserts that that statement by

       the trial court “is not an accurate representation of the principle actually

       enunciated in the Woods case.” Appellant’s Br. at 12. However, White has not

       provided cogent argument to explain how the trial court misstated the holding

       in Woods. On the contrary, White acknowledges that it “is undisputed that [he]

       must prove all of the elements of its cause of action in order to recover.

       Consequently, if [the Estate] can prove, with undisputed facts, that negate at

       least one of the elements, [he] cannot prevail.” Id. at. 13. White has wholly

       failed to show that the trial court either misstated or misapplied the holding in

       Woods.




       3
         The trial court also found that no genuine issue of material fact existed on White's claim of constructive
       fraud. However, White does not make any argument regarding constructive fraud on appeal.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020                      Page 7 of 11
                                                       Fraud

[14]   White next contends that the court erred when it entered summary judgment in

       favor of the Estate because there are genuine issues of material fact as to

       White’s claim for fraud. To prevail on a claim for fraud, White must show that

       the Estate made a material misrepresentation of a past or existing fact which

       was untrue, with knowledge of or in reckless ignorance of the

       misrepresentation’s falsity and with the intent to deceive, that he rightfully

       relied upon the misrepresentation, and that his reliance proximately caused the

       injury or damage complained of. See Kesling v. Hubler Nissan, Inc., 997 N.E.2d

       327, 335 (Ind. 2013). On appeal, White specifically asserts that the Estate had

       informed him that he would have immediate unrestricted access to the Property

       after the closing, which representation the Estate knew was false, and that he

       relied on the Estate’s false representation to his detriment.


[15]   Here, in support of its motion for summary judgment, the Estate designated as

       evidence the Agreement, which demonstrated that White acquired the Property

       “subject to the rights of crop tenants to cultivate, tend and harvest growing

       crops for the 2015 crop year.” Appellee’s App. Vol. 2 at 18 (emphasis

       removed). The Estate also designated the Executors’ Deed, which contained

       the same provision. Further, the Estate designated as evidence White’s

       deposition, which showed that no party to the Agreement represented to White

       that he would have the right to immediate unrestricted possession of the

       Property. See id. at 59-60. Rather, the designated evidence shows that it was

       White’s attorney, not a representative of the Estate, who asserted to White that

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020   Page 8 of 11
       he had the right to immediate unrestricted possession of the Property. See id. at

       57.


[16]   In addition, White acknowledged during his deposition that he was aware that

       Showalter rented and farmed tillable acres on the Property. See Appellant’s

       App. Vol. II at 53, 54. That evidence demonstrated, that, at a minimum, White

       was on inquiry notice concerning the crop tenancy agreement. The law has

       always imputed to a purchaser of land all information which would have been

       conveyed by an actual view of the premises, and when one purchases property

       where a visible state of things exists which could not legally exist without the

       property being subject to some burden, he is taken to have notice of the nature

       and extent of the burden. Fenley Farms, Inc. v. Clark, 404 N.E.2d 1164, 1171-72

       (Ind. Ct. App. 1980). When the property was conveyed to White, as a matter

       of law, he was charged with knowledge of the crop tenancy agreement and with

       notice of the nature and extent of the burden represented by that agreement.

       See id at 1172. Accordingly, the Estate met its burden as the summary judgment

       movant to demonstrate that the Estate did not make a material

       misrepresentation to White which was untrue. As such, the Estate met its

       burden to negate the first element of White’s claim for fraud.


[17]   At that point, the burden shifted to White to designate evidence to demonstrate

       that a genuine issue of material fact existed. But White did not designate any




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020   Page 9 of 11
       such evidence. 4 Accordingly, the trial court did not err when it granted

       summary judgment in favor of the Estate on White’s fraud claim.


                                                           Waste

[18]   Finally, White asserts that the court erred when it entered summary judgment

       in favor of the Estate on his claim for waste. This Court has previously stated:

       “At common law, the owner or a person with an interest in real property may

       bring an action for waste for the destruction, misuse, alteration or neglect of the

       premises by one lawfully in possession of the premises.” Wright Motors, Inc. v.

       Marathon Oil Co., 631 N.E.2d 923, 927 n.3 (Ind. Ct. App. 1994). On appeal,

       White specifically contends that, “notwithstanding [the Estate’s] representation

       to the contrary, [White’s] testimony d[id] state that the Estate, or its agents,

       [had] commit[ed] affirmative acts of destruction by ransacking the trucks,

       throwing junk out, and making things worse.” Appellant’s Br. at 19.


[19]   However, the Estate designated as evidence White’s deposition, which

       demonstrated that the alleged waste happened after closing and that no

       representative of the Estate entered the Property after that date. Appellee’s

       App. Vol. 2 at 61, 74. That designated evidence negated one element of




       4
          White also appears to suggest that, because the trial court did not go into detail about every element of his
       fraud claim, it failed to consider the claim. But White ignores the fact that the Estate was only required to
       negate one element of White’s claim in order to be entitled to summary judgment. Accordingly, once the
       trial court found that there is no genuine issue on one element, it did not have the obligation to address the
       other elements.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020                      Page 10 of 11
       White’s waste claim, namely, that it was the Estate that had committed the

       alleged waste. The burden then shifted to White to demonstrate that a genuine

       issue of material fact existed. But, again, White did not designate any such

       evidence. Therefore, the trial court did not err when it granted summary

       judgment in favor of the Estate on White’s claim for waste.


[20]   In sum, the trial court did not err when it entered summary judgment in favor

       of the Estate. Accordingly, we affirm the trial court.


[21]   Affirmed.



       Bradford, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2764 | July 31, 2020   Page 11 of 11
