      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                             FILED
      this Memorandum Decision shall not be                                          Jul 02 2019, 7:48 am

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


      APPELLANT PRO SE                                          ATTORNEY FOR APPELLEE
      Sabrina Graham                                            David A. Smith
      Brownsburg, Indiana                                       Bedford, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Sabrina Graham,                                           July 2, 2019
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                18A-PL-2262
              v.                                                Appeal from the Martin Circuit
                                                                Court
      Thomas S. Wininger,                                       The Honorable Lynne E. Ellis,
      Appellee-Defendant.                                       Judge
                                                                Trial Court Cause No.
                                                                51C01-1512-PL-243



      Tavitas, Judge.


                                              Case Summary
[1]   Sabrina Graham, pro se, appeals the trial court’s judgment regarding her claim

      against her brother, Thomas Wininger. We affirm.



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019                           Page 1 of 17
                                                     Issues
[2]   Graham raises numerous issues, which we restate as:


              I.       Whether the trial court’s judgment in favor of Wininger
                       regarding the alleged oral agreement is contrary to law.

              II.      Whether the trial court properly conducted the summary
                       judgment and bench trial proceedings.


                                                      Facts
[3]   This litigation concerns a family dispute over payment for services allegedly

      rendered to a sibling. Graham and Wininger are sister and brother. Graham is

      a registered nurse, and Wininger is a veteran, who was injured during his

      service in the Army in the late 1970’s. Wininger sustained a traumatic brain

      injury in a fall, which caused seizures, memory loss, and behavioral issues.

      According to Graham, between 1998 and 2013, she assisted Wininger with

      filing claims for veterans’ benefits and social security benefits, arranging

      medication and healthcare, and building a house.


[4]   Graham claims that, in 2001 or 2002, Graham and Wininger reached an oral

      agreement whereby, in exchange for Graham’s assistance, Wininger agreed to

      pay Graham thirty percent of any lump sum payment of veterans’ benefits that

      Wininger received. After Wininger received a lump sum payment in 2006,

      Wininger repaid Graham for funds that she spent building his house except for

      approximately $600.00. Graham contends that they also renegotiated their

      arrangement. According to Graham, Wininger agreed to give Graham fifty

      percent of any lump sum payment of veterans’ benefits if he received an earlier
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019   Page 2 of 17
      effective date of his benefits, which would result in a larger lump sum payment.

      In 2013, Wininger received a lump sum payment of veterans’ benefits of

      $442,148.00. Wininger was represented by Disabled American Veterans

      (“DAV”) during the proceedings regarding the veterans’ benefits. Graham

      argues that she is entitled to payment of $221,574.00 from Wininger, which

      Wininger has refused to pay.


[5]   In June 2015, Graham filed a complaint against Wininger alleging the

      following claims: (1) conversion; (2) fraud; (3) constructive fraud; (4)

      promissory estoppel and misrepresentation; (5) unjust enrichment and quantum

      meruit; (6) breach of oral contract; and (7) implied, constructive or quasi

      contract. 1 Graham also requested treble damages and attorney fees. Graham

      was represented by Attorney Gregory Black during the majority of the

      proceedings.


[6]   In December 2016, the trial court held a bench trial. At the end of Graham’s

      case-in-chief, Wininger moved for judgment on the evidence pursuant to

      Indiana Trial Rule 50. Graham argued that Trial Rule 50 did not apply in

      bench trials, and Wininger argued that, if a ruling under Trial Rule 50 was

      inappropriate, he was entitled to summary judgment under Trial Rule 56(B).

      The trial court denied Wininger’s motion for judgment under Trial Rule 50 and

      allowed Wininger to file a motion for summary judgment. During a hearing on




      1
          The complaint was originally filed in Hendricks County. It was later transferred to Martin County.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019                      Page 3 of 17
      Wininger’s motion for summary judgment, the trial court seemed inclined to

      find genuine issues of material fact, which would have precluded summary

      judgment. Wininger then filed a motion to withdraw his motion for summary

      judgment. Over Graham’s objection, the trial court granted Wininger’s motion

      to withdraw the motion for summary judgment on July 28, 2017. The trial

      court then set a date for the bench trial to resume.


[7]   Graham’s counsel filed a motion to withdraw, and Graham, pro se, then filed a

      motion for summary judgment. In response, Wininger filed a motion for

      extension of time, a motion for leave to take Graham’s deposition, and a

      motion to vacate the trial date. The trial court granted Wininger’s motions.

      After Wininger filed a response to Graham’s motion for summary judgment

      and Graham filed a reply, the trial court denied Graham’s motion for summary

      judgment on February 28, 2018. The trial court then set the matter for the

      bench trial to resume.


[8]   On May 21, 2018, the bench trial was completed. The trial court then entered

      the following order:


              1. Judgment in favor of the Plaintiff, Sabrina Graham, in the
              amount of Six Hundred Dollars ($600.00) and against
              Defendant, Thomas Wininger, for monies due and owing to the
              Plaintiff which she expended for the completion of the building
              of Defendant’s home.


              2. Judgment in favor of Defendant, Thomas Wininger, and
              against Plaintiff, Sabrina Graham, for all other claims and relief
              requested in Plaintiff’s Complaint.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019   Page 4 of 17
       Appellant’s App. Vol. II p. 29. Graham now appeals.


                                                    Analysis
[9]    Graham appeals the trial court’s denial of her claim for half of Wininger’s lump

       sum recovery of veterans’ benefits. Before addressing her arguments, we note

       that “a pro se litigant is held to the same standards as a trained attorney and is

       afforded no inherent leniency simply by virtue of being self-represented.”

       Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). “An appellant who

       proceeds pro se is held to the same established rules of procedure that trained

       legal counsel is bound to follow and, therefore, must be prepared to accept the

       consequences of his or her action.” Perry v. Anonymous Physician 1, 25 N.E.3d

       103, 105 n.1 (Ind. Ct. App. 2014), trans. denied, cert. denied, 136 S. Ct. 227

       (2015).


[10]   Although we prefer to decide cases on their merits, arguments are waived

       where an appellant’s noncompliance with the rules of appellate procedure is so

       substantial it impedes our appellate consideration of the errors. Id. Indiana

       Appellate Rule 46(A)(8)(a) requires that the argument section of a brief

       “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 on Appeal relied

       on . . . .” We will not consider an assertion on appeal when there is no cogent

       argument supported by authority and there are no references to the record as

       required by the rules. Id. We will not become an advocate for a party or


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019   Page 5 of 17
       address arguments that are inappropriate or too poorly developed or expressed

       to be understood. Id.


[11]   Because Graham did not prevail at trial, she appeals from a negative judgment. 2

       A judgment entered against a party who bore the burden of proof at trial is a

       negative judgment. Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977 N.E.2d

       1, 4 (Ind. Ct. App. 2012). On appeal, we will not reverse a negative judgment

       unless it is contrary to law. Id. To determine whether a judgment is contrary to

       law, we consider the evidence in the light most favorable to the appellee,

       together with all the reasonable inferences to be drawn therefrom. Id. A party

       appealing from a negative judgment must show that the evidence points

       unerringly to a conclusion different than that reached by the trial court. Id. We

       may neither reweigh the evidence nor judge the credibility of the witnesses.

       OVRS Acquisition Corp. v. Cmty. Health Servs., Inc., 657 N.E.2d 117, 125 (Ind. Ct.

       App. 1995), trans. denied.




       2
         Graham very briefly mentions the trial court’s lack of findings of fact and conclusions of law. Although
       Graham’s counsel filed a written request for findings of fact and conclusions of law pursuant to Indiana Trial
       Rule 52 and the parties submitted proposed findings, the trial court failed to issue findings of fact and
       conclusions of law. A better practice here would have been for the trial court to issue findings of fact and
       conclusions of law as required by Trial Rule 52, and we urge the trial court to issue the required findings of
       fact and conclusions of law in the future. Graham, however, made no argument in her brief regarding this
       issue and cites no authority, and accordingly, the issue is waived. See Ind. Appellate Rule 46(A)(8)(a). In
       fact, both parties apply a negative judgment standard of review. See Appellee’s Br. pp. 22-23; Appellant’s
       Reply Br. p. 9. We will, therefore, utilize a negative judgment standard of review.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019                      Page 6 of 17
                                                I. Oral Agreement

[12]   Each of Graham’s claims listed in her complaint, along with her requests for

       treble damages, punitive damages, and prejudgment interest, depends on the

       existence of an oral agreement between Graham and Wininger for Wininger to

       pay fifty percent of any lump sum payment of veterans’ benefits to Graham in

       exchange for services performed by Graham. 3


[13]   “‘[W]here one accepts valuable services from another the law implies a promise

       to pay for them.’” 4 Estate of Prickett v. Womersley, 905 N.E.2d 1008, 1012 (Ind.

       2009) (quoting Schwartz v. Schwartz, 773 N.E.2d 348, 354 (Ind. Ct. App. 2002).

       “Where services are performed by one not a member of the recipient’s family,

       an agreement to pay may be implied from the relationship of the parties, the

       situation, the conduct of the parties, and the nature and character of the services

       rendered.” Cole v. Cole, 517 N.E.2d 1248, 1250 (Ind. Ct. App. 1988). No one,

       however, can be held to pay for services unless there is an express or implied

       promise to pay. Crump v. Coleman, 181 Ind. App. 414, 418, 391 N.E.2d 867,

       870 (1979). “There must be a request and either an express agreement to pay or



       3
        The trial court did award Graham a judgment for $600.00 to reimburse her for expenses she paid to build
       Wininger’s residence. Neither party contests that judgment, and we do not address it further.
       4
        “[W]here the parties are family members living together, and the services are rendered in the family context,
       no implication of a promise to pay by the recipient arises.” Estate of Prickett, 905 N.E.2d at 1012 (quoting
       Schwartz, 773 N.E.2d at 355). Instead, in these circumstances, the rebuttable presumption is that services are
       gratuitous. “The public policy advanced by this presumption is that family members ‘have reciprocal, natural,
       and moral duties to support and care for each other.’” Id. (quoting Cole v. Cole, 517 N.E.2d 1248, 1250 (Ind.
       Ct. App. 1988)). In Cole, we defined “family” as “a collective body of persons who form one household,
       under one head, and is subject to one domestic government, and who have reciprocal, natural, and moral
       duties to support and care for each other.” Cole, 517 N.E.2d at 1250. There is no evidence that Graham and
       Wininger lived together during the time the alleged services were performed.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019                     Page 7 of 17
       circumstances from which a promise can be implied.” Id. “Whether the

       services or payments were rendered gratuitously or not is a question for the trier

       of fact.” Cole, 517 N.E.2d at 1250.


[14]   We also note that, in general, the existence of a contract is a question of law.

       Barrand v. Martin, 120 N.E.3d 565, 572 (Ind. Ct. App. 2019). The basic

       requirements of a contract are offer, acceptance, consideration, and a meeting

       of the minds of the contracting parties. Id. “‘For an oral contract to exist,

       parties have to agree to all terms of the contract.’” Id. (quoting Kelly v.

       Levandoski, 825 N.E.2d 850, 857 (Ind. Ct. App. 2005), trans. denied). If a party

       cannot demonstrate agreement on one essential term of the contract, then there

       is no mutual assent and no contract is formed. Id. “The party urging the

       validity of a contract bears the onus of proving its existence.” OVRS Acquisition

       Corp., 657 N.E.2d at 125. “When the evidence as to the terms of an oral

       contract is conflicting, or the meaning doubtful, it is for the [trier of fact] to

       ascertain the intention of the parties” and to determine the terms of the

       contract. Annadall v. Union Cement & Lime Co., 165 Ind. 110, 74 N.E. 893, 894

       (1905).


[15]   Graham bore the burden of demonstrating an oral contract between Graham

       and Wininger. Graham claims that, in 2001 or 2002, Graham and Wininger

       reached an oral agreement whereby, in exchange for Graham’s assistance,

       Wininger agreed to pay Graham thirty percent of any lump sum payment of

       veterans’ benefits that Wininger received. After Wininger received a lump sum

       payment in 2006, Wininger repaid Graham for most of the funds that she spent

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019   Page 8 of 17
       building his house. According to Graham, they renegotiated their arrangement,

       and Wininger agreed to give Graham fifty percent of any lump sum payment of

       veterans’ benefits if he received an earlier effective date of his benefits, which

       would result in a larger lump sum payment. Wininger, on the other hand,

       testified that he did not agree to this arrangement. 5


[16]   This case demonstrates the inherent difficulty in proving oral contracts. Our

       standard of review requires that we view the evidence in a light most favorable

       to Wininger. Graham’s arguments are merely a request that we reweigh the

       evidence as to the existence of an oral contract and the credibility of the parties,

       which we cannot do. Graham failed to meet her burden of demonstrating an

       oral contract between Graham and Wininger. See, e.g., Barrand, 120 N.E.3d at

       573 (“The trial court, therefore, did not err by finding that because Mother and

       Father had different understandings of their purported agreement, they did not

       have an enforceable agreement regarding Father’s child support obligation.”).

       Accordingly, the trial court’s judgment is not contrary to law.




       5
         Graham argues that Wininger’s testimony is incredibly dubious. “Within the narrow confines of the
       incredible dubiosity rule, a court may impinge upon a jury’s function to judge the credibility of a witness.”
       Dallas v. Cessna, 968 N.E.2d 291, 298 (Ind. Ct. App. 2012) (citing Love v. State, 761 N.E.2d 806, 810 (Ind.
       2002)). This rule, however, does not apply in civil actions. Id. at 299.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019                       Page 9 of 17
                                              I. Procedural Issues

                                            A. Bias of Trial Court

[17]   Graham argues that the trial court was biased against her because she felt

       “personally attacked, belittled, embarrassed, and humiliated by the public

       statements” of the trial court. Appellant’s Br. p. 41. Adverse rulings and

       findings by a trial judge are not sufficient reason to believe the judge has a

       personal bias or prejudice. L.G. v. S.L., 88 N.E.3d 1069, 1073 (Ind. 2018). The

       law presumes that a judge is unbiased and unprejudiced. Id. To overcome this

       presumption, the moving party must establish that the judge has personal

       prejudice for or against a party. Id.


[18]   Our extensive review of the record reveals no belittling or attacking of Graham

       by the trial court. Rather, the trial court was patient with Graham and

       Graham’s counsel despite repeated and protracted efforts to admit evidence that

       the trial court had excluded. The main basis of Graham’s claims, however,

       seems to be that the trial court repeatedly ruled against her. Adverse rulings do

       not demonstrate bias or prejudice. Graham’s argument fails.


                                          B. Admission of Evidence

[19]   Graham takes issue with the trial court’s exclusion of a voicemail left by

       Wininger allegedly offering to settle the claim for $200,000.00. The trial court

       excluded the evidence because the parties agreed there was never a contract for

       Wininger to give Graham $200,000.00; rather, the alleged agreement was for




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019   Page 10 of 17
       fifty percent of the lump sum payment. Graham complains, however, that the

       voicemail was an admission of the alleged original oral agreement.


[20]   Graham cites no relevant authority to demonstrate that this evidence was

       admissible. In fact, Graham cites only Indiana Trial Rule 36 and argues that

       Wininger’s admission was admissible at the bench trial. Admissions under

       Trial Rule 36 are not automatically admissible at a trial. Kerkhof v. Kerkhof, 703

       N.E.2d 1108, 1111 (Ind. Ct. App. 1998). “[A]n admission may be offered into

       evidence at the hearing where the facts established in that admission are not

       subject to dispute, but the admissibility of the facts may be challenged.” Id.

       Graham, consequently, must demonstrate the admissibility of the voicemail.

       Graham, however, has failed to make a cogent argument establishing the

       admissibility of the voicemail. See Ind. Appellate Rule 46(A)(8)(a).


[21]   Waiver notwithstanding, even if the evidence was admissible, any error in its

       exclusion was harmless. Graham does not argue that the voicemail resulted in

       a contract; rather, she argues it was simply more evidence of an oral agreement

       for her to receive fifty percent of Wininger’s lump sum award. The voicemail

       was merely cumulative of other evidence presented at the bench trial.


                        C. Summary Judgment and Bench Trial Proceedings

[22]   The remainder of Graham’s arguments pertain to the conduct of the summary

       judgment and bench trial proceedings. “Provided that a trial court fulfills its

       duty to conduct trials expeditiously and consistent with the orderly

       administration of justice, a trial court has discretion to conduct the proceedings


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019   Page 11 of 17
       before it in any manner that it sees fit.” J.M. v. N.M., 844 N.E.2d 590, 601

       (Ind. Ct. App. 2006), trans. denied. “We review the decisions that a trial court

       makes regarding the conduct of the proceedings for an abuse of that discretion.”

       Id.


[23]   Here, Graham presented her case-in-chief, and Wininger moved for judgment

       on the evidence pursuant to Indiana Trial Rule 50. Graham’s counsel pointed

       out that judgment on the evidence was improper in a bench trial, and

       Wininger’s counsel argued that, if Trial Rule 50 was inapplicable, summary

       judgment under Trial Rule 56 was applicable. The trial court then paused the

       bench trial proceedings to allow Wininger to file a motion for summary

       judgment. During a hearing on Wininger’s motion for summary judgment, the

       trial court indicated it believed that genuine issues of material fact existed.

       Wininger then withdrew his motion for summary judgment over Graham’s

       objection.


[24]   Graham then filed her own motion for summary judgment. As part of those

       summary judgment proceedings, Wininger requested permission to reopen

       discovery to take Graham’s deposition, which the trial court allowed. The trial

       court denied Graham’s motion for summary judgment and set a date for the

       bench trial to resume. At the bench trial, Graham, who had already completed

       presenting her evidence, sought to reopen her case and present more evidence.

       The trial court denied Graham’s motion, and the bench trial was completed.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019   Page 12 of 17
[25]   Graham makes several arguments concerning these proceedings. Graham

       argues: (1) the trial court erred by allowing Wininger to file a motion for

       summary judgment after Graham presented her case-in-chief; (2) the trial court

       erred by allowing Wininger to later withdraw his motion for summary

       judgment; (3) the trial court erred by allowing Wininger to conduct discovery

       after Graham filed a motion for summary judgment; and (4) the trial court erred

       by denying Graham’s request to reopen her case. 6 We will briefly address each

       argument.


[26]   The trial court was correct that a motion for judgment on the evidence pursuant

       to Indiana Trial Rule 50(B) was improper. See Alkhalidi v. Indiana Dep’t of

       Correction, 42 N.E.3d 562, 564 n.2 (Ind. Ct. App. 2015). In general, where such

       a motion is made during a bench trial, “it should have been treated as an

       Indiana Trial Rule 41(B) motion for involuntary dismissal.” 7 Id. The trial court




       6
         Although Graham contends that the trial court erred by denying her motion for summary judgment, she
       makes no argument concerning the actual substance of the motion for summary judgment. The issue,
       therefore, is waived for failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8)(a).
       7
           Indiana Trial Rule 41(B) provides:

                After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court
                without a jury, has completed the presentation of his evidence thereon, the opposing party,
                without waiving his right to offer evidence in the event the motion is not granted, may move for
                a dismissal on the ground that upon the weight of the evidence and the law there has been
                shown no right to relief. The court as trier of the facts may then determine them and render
                judgment against the plaintiff or may decline to render any judgment until the close of all the
                evidence. If the court renders judgment on the merits against the plaintiff or party with the
                burden of proof, the court, when requested at the time of the motion by either party shall make
                findings if, and as required by Rule 52(A). Unless the court in its order for dismissal otherwise
                specifies, a dismissal under this subdivision or subdivision (E) of this rule and any dismissal not
                provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an
                adjudication upon the merits.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019                         Page 13 of 17
       here, however, allowed Wininger to instead file a motion for summary

       judgment pursuant to Indiana Trial Rule 56(B).


[27]   Indiana Trial Rule 56(B), which governs summary judgment motions, provides:

       “A party against whom a claim . . . is asserted . . . may, at any time, move with

       or without supporting affidavits for a summary judgment in his favor as to all or

       any part thereof.” The trial court was, accordingly, within its discretion to

       pause the bench trial to allow Wininger to file a motion for summary judgment.


[28]   We pause, however, to note our concerns with this procedure. The whole

       purpose of summary judgment is to terminate litigation and avoid unnecessary

       trials where there is no factual dispute and the issue may be determined as a

       matter of law. Bragg v. Kittle’s Home Furnishings, Inc., 52 N.E.3d 908, 919 (Ind.

       Ct. App. 2016); Reeder v. Harper, 788 N.E.2d 1236, 1246 (Ind. 2003) (Boehm, J.,

       dissenting). By staying the bench trial to allow Wininger (and later Graham) to

       file motions for summary judgment, the bench trial was delayed significantly.

       The purpose of a motion for summary judgment is to save the parties from the

       expense of a trial where summary judgment is warranted. The procedure used

       here had the opposite effect. This defeats the purpose of a motion for summary

       judgment, and we do not believe this was the intent of Trial Rule 56. Given the

       language of Trial Rule 56 allowing a motion for summary judgment to be filed

       at any time, however, we cannot say the trial court abused its discretion by




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019   Page 14 of 17
       delaying the remainder of the trial to allow Wininger to file his motion for

       summary judgment. 8


[29]   We next address Graham’s argument regarding the withdrawal of Wininger’s

       motion for summary judgment. Given the trial court’s statements during the

       summary judgment hearing regarding the existence of genuine issues of

       material fact, we find no rule or authority that would have prevented the trial

       court from allowing Wininger to withdraw his motion for summary judgment.

       Graham, moreover, cites no relevant authority that would have prevented the

       withdrawal. Graham has waived this issue for failure to present cogent

       argument. 9 See Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, even

       if Wininger’s motion had been denied, it appears that the trial court would have

       denied Wininger’s motion for summary judgment. It is unclear how Graham’s

       substantial rights were impacted by the withdrawal. Although Graham

       contends that she was “compelled to file for summary judgment,” Graham’s

       argument is not cogent and is, therefore, waived. Appellant’s Br. p. 53.


[30]   As for the trial court allowing Wininger to perform discovery after Graham

       filed her motion for summary judgment, we note that Trial Rule 56(F) allows



       8
        We note that the Federal Rules of Civil Procedure require a motion for summary judgment to be filed “at
       any time until 30 days after the close of all discovery” unless “a different time is set by local rule or the court
       orders otherwise.” Fed. R. Civ. P. 56(b).
       9
         Graham also argues that the trial court erred by denying Graham’s motion for attorney fees and sanctions
       for Wininger’s withdrawal of his motion for summary judgment. Graham argues that she is entitled to fees
       based on Indiana Code Section 34-52-1-1 because the motion was “frivolous or litigated in bad faith.”
       Appellant’s Br. p. 49. Graham failed to demonstrate that the motion was frivolous or litigated in bad faith.
       This argument fails.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019                          Page 15 of 17
       the trial court to “order a continuance to permit affidavits to be obtained or

       depositions to be taken or discovery to be had” in responding to a motion for

       summary judgment. As a result, the trial court was within its discretion to

       allow Wininger to conduct discovery after Graham filed a motion for summary

       judgment. 10


[31]   Finally, as for the trial court’s refusal to allow Graham to reopen her case, we

       note that a trial court has discretion to allow a party to reopen its case to present

       more evidence. See Quigg Trucking v. Nagy, 770 N.E.2d 408, 410-13 (Ind. Ct.

       App. 2002). Graham sought to reopen her case to present evidence of the

       voicemail, which the trial court had already repeatedly excluded from the bench

       trial. Under these circumstances, we cannot say that the trial court abused its

       discretion in denying Graham’s request.


[32]   Our review reveals that the trial court acted in accordance with the trial rules

       and did not abuse its discretion in conducting the summary judgment

       proceedings and bench trial. Graham’s arguments fail.




       10
         Graham argues that the delays in the bench trial allowed Wininger to spend “money rightfully owed to
       Graham.” Appellant’s Reply Br. p. 23. Graham complains that Wininger has purchased a “new truck, a
       new tractor and a new brush [sic] hog and who knows how much he has paid his attorney in legal fees.” Id.
       This commentary on how Wininger spends his money is argumentative, inappropriate, and irrelevant.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019                 Page 16 of 17
                                                  Conclusion
[33]   The trial court’s judgment against Graham regarding the lack of existence of an

       oral agreement with Wininger was not contrary to law. Graham’s procedural

       arguments also fail. We affirm.


[34]   Affirmed.


       Bradford, J., concurs.


       Crone, J., concurs in result without an opinion.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2262 | July 2, 2019   Page 17 of 17
