MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Mar 25 2019, 9:25 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Bryan H. Babb                                           Michael L. Einterz, Jr.
Bose McKinney & Evans LLP                               Einterz & Einterz
Indianapolis, Indiana                                   Zionsville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Indiana REMS, LLC,                                      March 25, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-PL-1704
        v.                                              Appeal from the Marion Superior
                                                        Court
Brock H. Medsker,                                       The Honorable John F. Hanley,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49D11-1708-PL-33345



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019                 Page 1 of 17
                                Case Summary and Issue
[1]   The buyer of certain real estate, Dr. Brock Medsker, argues he purchased two

      single-family homes for “a really good deal.” The seller, Indiana REMS, LLC,

      argues it only intended to sell one single-family home. Medsker filed a

      complaint for declaratory judgment seeking to quiet title and REMS

      counterclaimed asking for, inter alia, the equitable rescission of the underlying

      purchase agreement due to a mutual mistake of fact. The trial court granted

      Medsker’s motion for summary of judgment. REMS now raises two issues for

      our review, one of which we find dispositive: whether the trial court erred in

      granting summary judgment in favor of Medsker on REMS’ counterclaim for

      mutual mistake of fact. Concluding genuine issues of material fact remain, we

      reverse and remand.



                            Facts and Procedural History
[2]   In early 2017, Medsker “was planning a move to Indianapolis due to accepting

      a position” with a local hospital and was “looking for a home to purchase.”

      Appendix to Brief of Appellant, Volume II at 68. Medsker’s realtor provided

      him with a listing for a single-family home for sale at “2134 N Delaware Street,

      Indianapolis, IN 46202-3702” with the legal description of “Morton Place Add

      L35 & L3.” Id. at 73. The listing described the property as a 13,120 square foot

      lot at a price of “$725,000[.]” Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 2 of 17
[3]   The single-family home with the address of 2134 N Delaware Street stands on

      Morton Place Lot 36. At the time REMS listed the property for sale, REMS

      also owned a lot with a single-family home under construction with the address

      of 2132 N Delaware standing on Lot 35, immediately south of Lot 36. There

      was a vacant lot, Lot 37, not owned by REMS, immediately north of Lot 36.

      From north to south, the relevant properties were as follows:


                   Lot 37                               Lot 36                              Lot 35


                Vacant Lot                    2134 N Delaware St.,                2132 N Delaware St.,
                                             the single-family home                a single-family home
                                             specified by address in             then under construction
          Not owned by REMS                         the listing
                                                                                     Owned by REMS
                                                Owned by REMS




[4]   On May 19, 2017, Medsker made an initial offer on the property consisting of a

      “double lot, on a standard Indiana Association of Realtors, Inc. form Purchase

      Agreement[,]” which “incorporated the original Listing.”1 Id. at 69. The initial

      offer repeated the truncated legal description of the property from the original

      listing, “Morton Place Add L35 & L3.” Id. at 75. Following this incomplete

      legal description, the initial offer provided boilerplate language stating,




      1
       The initial offer stated an incorrect address of “2134 S Delaware St” in Indianapolis with the zip code of
      “46225-1904[,]” instead of 2134 N Delaware Street in Indianapolis with the zip code of 46202-3702. Id. at
      69. This incorrect address was repeated in both of Medsker’s counteroffers including Counter Offer # 4
      which was accepted. This error was eventually corrected in the amendment to purchase agreement executed
      on June 19, 2017.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019                 Page 3 of 17
      “together with any existing permanent improvements and fixtures attached

      (unless leased or excluded) . . . and the following:” after which Medsker

      inserted “[a]ll items per [the listing].” Id. This initial offer was for $680,000.

      Id.


[5]   On May 21, 2017, the parties agreed on Counter Offer # 4, setting a purchase

      price of $700,000 and thereby finalizing the purchase agreement. See id. at 85.

      The parties executed an amendment to purchase agreement on June 19, 2017,

      stating “[REMS] and [Medsker] agree that the $7,500 credits toward wet bar

      and fence is removed from the purchase agreement.” Id. at 86.


[6]   In furtherance of the purchase agreement, the parties engaged First American

      Title Insurance Company to research title for the property. The commitment

      included the following legal description of the property:


              Lots Numbered Thirty-Five (35) and Thirty-Six (36) in Morton
              Place, now in the City of Indianapolis as per plat thereof
              recorded December 23, 1891 in Plat Book 10, page 100, in the
              Office of the Recorder of Marion County, Indiana.


      Id. at 93. On May 24, 2017, First American confirmed that “The Fee Simple

      interest” in the property was owned by REMS. Id. at 88.


[7]   Medsker also obtained a residential appraisal report which identified the

      property as 2134 N Delaware Street, referenced the original listing, described

      the property as a 13,120 square foot lot, and rendered an appraised value of

      $700,000. Id. at 98, 99. Although the report included a legal description of


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 4 of 17
      “Morton Place Add L35 & L36,” id. at 98, the report only included a general

      description, id., photographs, id. at 113-23, floor plans, id. at 130, map, id. at

      132, and tax information, id. at 137, of the single-family home with the address

      of 2134 N Delaware Street situated on Lot 36. Aside from several mentions of

      “L35[,]” see, e.g., id. at 98, 136, there is no indication that the report considered

      the single-family home under construction on Lot 35 with the address of 2132

      N Delaware Street in its calculation of the appraised value of the property, see

      id. at 98-137. Additionally, in response to inquiries about where to place a

      fence, REMS emailed Medsker a survey of the property. The survey identified

      Lots 35 and 36 but did not depict either of the structures on the properties. See

      id. at 74.


[8]   David Tang, managing member of REMS, made and executed a deed for Lot

      35 on July 7, 2017. Closing on the purchase occurred on July 10, 2017, with

      the closing statement describing the property as “2134 North Delaware Street,

      Indianapolis, IN 46202.” Id. at 159. At closing, Medsker executed a mortgage

      in favor of BMO Harris Bank which identified the property as “Lots Numbered

      Thirty-Five (35) and Thirty-Six (36) in Morton Place[.]” Id. at 140. Medkser

      later realized the warranty deed only applied to Lot 35 and omitted Lot 36

      when he received a recorder’s stamped copy of the mortgage by mail. See id. at

      70, ¶ 16. Medsker contacted First American and, with REMS’ permission,

      First American crossed out “35” to replace it with “36[.]” See Id. at 65. The

      warranty deed also contained the handwritten notation “Re-Record to correct

      legal description.” Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 5 of 17
[9]    Due to confusion surrounding the second warranty deed, the Marion County

       Assessor’s Office refused to transfer the property to Medsker. On August 30,

       2017, Medsker filed a complaint for declaratory judgment seeking to quiet title

       for both properties. REMS counterclaimed asking for, inter alia, the equitable

       rescission of the underlying purchase agreement due to a mutual mistake of

       fact. On April 4, 2018, Medsker filed a motion for judgment on the pleadings

       or, alternatively, a motion for summary judgment. REMS declined to designate

       evidence to the contrary and rested on its pleadings. After a hearing on June

       21, the trial court issued an order granting summary judgment in favor Medsker

       and denying REMS’ counterclaims, concluding:


               The Court has reviewed the designated and undisputed facts in
               this matter and finds that the Deeds vest fee simple ownership in
               both Lot 35 and 36 of the Real Estate in [Medsker] and that
               [REMS] retains no interest in the Real Estate. The Court further
               finds that the Purchase Agreement is unambiguous and in
               agreement with the Deeds issued and that the intent of the parties
               was to transfer both Lot 35 and 36 and all improvements thereon
               to [Medsker] from [REMS].


       Appealed Order at 1. REMS now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[10]   Summary judgment allows for a trial court to dispose of cases where only legal

       issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The moving

       party has the initial burden to show the absence of any genuine issue of material
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 6 of 17
       fact as to a determinative issue. Id. As opposed to the federal standard which

       permits the moving party to merely show the party carrying the burden of proof

       lacks evidence on a necessary element, Indiana law requires the moving party

       to “affirmatively negate an opponent’s claim.” Id. (quotation omitted). The

       burden then shifts to the non-moving party to come forward with contrary

       evidence showing an issue to be determined by the trier of fact. Id. Although

       this contrary evidence may consist of as little as a non-movant’s designation of

       a self-serving affidavit, summary judgment may not be defeated by an affidavit

       which creates only an issue of law—the non-movant must establish that

       material facts are in dispute. AM Gen. LLC v. Armour, 46 N.E.3d 436, 441-42

       (Ind. 2015).


[11]   On appeal, we review summary judgment with the same standard employed by

       the trial court: relying only on the evidence designated by the parties and

       construing all facts and reasonable inferences in favor of the non-moving party,

       we will affirm the grant of summary judgment “if the designated evidentiary

       matter shows that there is no genuine issue as to any material fact and that the

       moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C);

       City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). “A fact is

       ‘material’ if its resolution would affect the outcome of the case, and an issue is

       ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of

       the truth . . . or if the undisputed material facts support conflicting reasonable

       inferences.” Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 253 (Ind.

       2015) (citation omitted).


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 7 of 17
[12]   A trial court’s grant of summary judgment is clothed with a presumption of

       validity, and the party who lost in the trial court has the burden of

       demonstrating that the grant of summary judgment was erroneous. Henderson v.

       Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans.

       denied. Where a trial court enters specific findings and conclusions, they offer

       insight into the rationale for the trial court’s judgment and facilitate appellate

       review, but they are not binding on this court. Id. We will affirm upon any

       theory or basis supported by the designated materials. Id. However, Indiana’s

       onerous and distinctive summary judgment standard is aimed at protecting a

       party’s day in court and we must therefore carefully assess the trial court’s

       decision. Id.


                                  II. Mutual Mistake of Fact
[13]   The basic requirements for a contract are offer, acceptance, consideration, and a

       meeting of the minds between the contracting parties. Morris v. Crain, 969

       N.E.2d 119, 123 (Ind. Ct. App. 2012). There must be mutual assent or a

       meeting of the minds on all essential elements or terms in order to form a

       binding contract. Bennett v. Broderick, 858 N.E.2d 1044, 1048 (Ind. Ct. App.

       2006), trans. denied. The doctrine of mutual mistake provides that “where both

       parties share a common assumption about a vital fact upon which they based

       their bargain, and that assumption is false, the transaction may be avoided if

       because of the mistake a quite different exchange of values occurs from the

       exchange of values contemplated by the parties.” Perfect v. McAndrew, 798

       N.E.2d 470, 478 (Ind. Ct. App. 2003).

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 8 of 17
[14]   It is not enough that both parties are mistaken about any fact; rather, the

       mistaken fact must be one that is “of the essence of the agreement, the sine qua

       non, or, as is sometimes said, the efficient cause of the agreement, and must be

       such that it animates and controls the conduct of the parties.” Id. (quoting

       Bowling v. Poole, 756 N.E.2d 983, 989 (Ind. Ct. App. 2001)). Parol evidence

       may be considered in determining whether the parties entered into a contract

       based on a mutual mistake of fact. Kramer v. Focus Realty Group, LLC, 51

       N.E.3d 1240, 1243 (Ind. Ct. App. 2016).


[15]   REMS argues the trial court’s grant of summary judgment in favor of Medsker

       “was erroneous because, at a minimum, genuine issues of material fact exist

       concerning Indiana REMS’s claim of mutual mistake [of fact].” Brief of

       Appellant at 13. Specifically, REMS argues “neither party intended or believed

       that the Purchase Agreement encompassed or included the single-family home

       located at 2132 N Delaware [Lot 35].” Id. at 15 (citing App. to Br. of

       Appellant, Vol. II at 42).


[16]   Medsker begins by asserting his “ownership of the Property is unchallenged”

       because “an attack on the Purchase Agreement is inconsequential” once the

       transaction has been completed by a deed being made, executed, and delivered.

       Appellee’s Brief at 10-12. However, in Stack v. Commercial Towel & Uniform

       Serv., this court held, sitting en banc:


               The principle of law is well stated that when the deed in question
               was executed, all prior agreements whether oral or written, are
               merged in the latter instrument and any variance or

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 9 of 17
               inconsistencies therein must yield to the language of the last
               document, however this principle does not prevent reformation
               for mistake of fact. Unless so recognized, there never could be a
               reformation.


               ***


               The doctrine of merger does not apply and cannot be asserted in
               an action like the case at bar brought to reform a deed because of
               the mistake in preparing the deed to carry out the confessed and
               admitted intentions of the parties to the agreement which
               preceded the deed and pursuant to which the deed was executed
               by the grantor.


       120 Ind. App. 483, 492-94, 91 N.E.2d 790, 794-95 (1950) (citations omitted).

       Indeed, it would be a curious juxtaposition if the law recognized a mutual

       mistake of fact led to the delivery of a deed but, once delivered, the law

       rendered such a mutual mistake “inconsequential.” Accordingly, we view

       REMS’ argument regarding a mutual mistake of fact as properly challenging

       Medsker’s ownership of the property.


[17]   In its counterclaim seeking rescission of the contract, REMS alleged that

       “neither party intended or believed that the Purchase Agreement encompassed

       or included the single-family home located at 2132 N Delaware [Lot 35].”

       App. to Br. of Appellant, Vol. II at 41. Thereafter, Medsker designated an

       affidavit stating, in relevant part:


               21.     At the time of making the offer, I relied upon
                       representations by REMS’ agent and information in the
                       Listing, and I intended to purchase two lots, identified as

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 10 of 17
                35 and 36, with a total area of 13,120 sq. ft, and all
                improvements.


        22.     My understanding of the content, arrangement, and value
                of the Real Estate, including improvements, prior to
                closing was based upon the Listing, the Appraisal Report,
                the Title Search, the Title Commitment, the Purchase
                Agreement, and the survey received from REMS.


        23.     Throughout the purchase and due diligence process my
                understanding did not change and was confirmed by the
                investigation of the appraiser, the delivery of the survey,
                and REMS behavior in furtherance of the Purchase
                Agreement without modification or amendment.


        24.     At all times, I intended to purchase the identified Real
                Estate and all permanent improvements, appraised at
                $700,000, and consisting of Lots 35 and 36.


App. to Br. of Appellant, Vol. II at 71. Medsker also points to additional

evidence, including the fact that REMS had issued deeds for each of the two

lots and that the purchase agreement, listing, appraisal, property record, survey,

title commitment, and mortgage, all agreed that the property consisted of two

lots, had the same parcel number, and a size of 13,120 square feet. Medsker

argues that at a minimum, this evidence shifted the burden to REMS to

designate evidence that a genuine issue of material fact remained and, because

REMS chose to simply rest on its pleadings rather than designate contrary

evidence, the trial court properly granted summary judgment in his favor.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 11 of 17
[18]   To ascertain whether Medsker’s designated evidence “affirmatively negate[d]”

       REMS’ claim as our summary judgment standard demands, Hughley, 15 N.E.3d

       at 1003, we must first determine whether the essence of the purchase

       agreement, or its sine qua non, was the purchase of a number of homes or a

       number of lots. See Perfect, 798 N.E.2d at 478. Indeed, REMS argues the

       essence of the purchase agreement was the single-family home, namely 2134 N

       Delaware Street standing on Lot 36, while Medsker maintains that he intended

       to buy both lots with all improvements thereon.


[19]   We find guidance on this issue in the holding of Perfect v. McAndrew, 798 N.E.2d

       470. There, based on the acreage provided in the deed, McAndrew offered to

       purchase a property from the Perfects describing the property as “Anderson Rd,

       81.1 acres owned by Perfects.” Id. at 472. McAndrew accepted the Perfects’

       counteroffer but a survey of the property before closing disclosed that the

       property contained over 96 acres rather than the 81.1 provided in the deed.

       Thereafter, the Perfects attempted to renegotiate the contract because they

       “didn’t want to give away 15 acres.” Id. at 473. After renegotiation attempts

       failed, the Perfects refused to convey the property and McAndrew filed a

       complaint for specific performance. The trial court concluded, inter alia, that

       there was a meeting of the minds and that there was no mutual mistake of fact

       regarding the property.


[20]   On appeal, the Perfects argued that a shared belief that the property was 81.1

       acres constituted a mutual mistake of fact while McAndrew argued the specific

       acreage was not the “essence of the agreement[.]” Id. at 478. A panel of this

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 12 of 17
       court looked to testimony by a member of the Perfect family that “[t]here

       wasn’t any question about which piece of property [they] were dealing for[,]” as

       well as evidence that the parties walked the property and looked at its

       boundaries and that there were no conversations about the acreage or price per

       acre and affirmed the trial court, concluding the estimated acreage was “merely

       a manner of describing the property.” Id. at 478-79. Similarly, in Bowling, a

       panel of this court held that the number of acres in a purchase agreement was

       not the essence of the contract where the parties had described the property in

       terms of boundary lines and included a lump sum price. 756 N.E.2d at 989.


[21]   Whereas both Perfect and Bowling lacked evidence that the specific acreage was

       the essence of the parties’ agreements, evidence that the number of single-family

       homes was the essence of the parties’ agreement exists here—and it exists in the

       form of Medsker’s own designated evidence.2 Medsker makes much of his

       statements that he intended to purchase two lots, both Lot 35 and Lot 36, with

       all improvements thereon, and, standing alone, we would ordinarily conclude

       these statements were sufficient to shift the burden to REMS. See App. to Br. of

       Appellant, Vol. II at 71, ¶¶ 21, 24. These statements, however, do not stand

       alone.




       2
        We are cognizant, of course, of the differences in the procedural posture of this case and Perfect and Bowling
       as this case was disposed of on summary judgment whereas both of those cases were reviewed for clear error
       after bench trials. See Perfect, 798 N.E.2d at 473; Bowling, 756 N.E.2d at 988.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019                    Page 13 of 17
[22]   In Siner v. Kindred Hosp., Ltd. P’ship, our supreme court reviewed a medical

       malpractice action where two physicians moved for summary judgment

       designating the affidavits of Dr. Krueger, a member of the medical review

       panel, who opined that the physicians “did not cause injury to [the plaintiff]” in

       administering her pulmonary care. 51 N.E.3d 1184, 1186 (Ind. 2016). The

       court explained that although Dr. Krueger’s affidavits


               provide evidence on [the plaintiff’s] pulmonary care and would
               be sufficient, standing alone, to shift the burden to [the plaintiffs]
               on those claims. The affidavits do not, however, stand alone—
               [the defendants] also designated as evidence the medical review
               panel’s opinion that the defendants’ “conduct may have been a
               factor of some resultant damages, but not the death of the
               patient.”


       Id. at 1189. The court then explained that taking all reasonable inferences in

       favor of the non-moving party, the defendants’ “own designated evidence

       establishes a genuine issue of material fact on the element of causation,

       preventing them from affirmatively negating the [the plaintiffs’] claims[.]” Id.


[23]   In addition to Medsker’s statements that he intended to buy Lot 35 and Lot 36

       with all improvements thereon, Medsker also designated evidence tending to

       prove the purchase of one single-family home was the essence of the purchase

       agreement. Indeed, within the same affidavit, Medsker’s self-proclaimed intent

       was that he was “looking for a home to purchase[,]” and that one “home that

       [he] became aware of was 2134 N. Delaware [Street].” App. to Br. of

       Appellant, Vol. II at 68, 69, ¶¶ 4, 6. Medsker also stated:


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 14 of 17
               My understanding of the content, arrangement, and value of the
               Real Estate, including improvements, prior to closing was based
               upon the Listing, the Appraisal Report, the Title Search, the Title
               Commitment, the Purchase Agreement, and the survey received
               from REMS.


       Id. at 71, ¶ 22. Both the listing and the purchase agreement included a

       truncated legal description of “Morton Place Add L35 & L3.” Id. at 73, 75.

       This incomplete legal description does not clearly identify the lots and they

       contain only a single address, 2134 N Delaware Street, which is Lot 36. Id. at

       73, 86. More importantly, however, the listing, which is incorporated by the

       purchase agreement, only provides the details of the single-family home on Lot

       36, with no mention of the single-family home under construction on Lot 35.

       Id. at 73.


[24]   While the rest of the documents contain references to both Lot 35 and Lot 36,

       these documents indicate the presence of only one single-family home on the

       property. Perhaps most tellingly, the appraisal report rendered an appraised

       value of $700,000 including a general description, id. at 98, photographs, id. at

       113-23, floor plans, id. at 130, map, id. at 132, and tax information, id. at 137, of

       only the single-family home with the address of 2134 N Delaware Street

       situated on Lot 36. All of this evidence suggests that one single-family home,

       not two lots, was the essence of the purchase agreement.


[25]   Drawing all reasonable inferences in favor of REMS, the non-moving party, we

       conclude Medsker’s own designated evidence created a genuine issue of

       material fact and Medsker failed to affirmatively negate REMS’ claim of
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 15 of 17
       mutual mistake of fact. Therefore, the burden never shifted to REMS and

       regardless of whether REMS designated its own evidence, the grant of

       summary judgment in Medsker’s favor was improper. See Hughley, 15 N.E.3d

       at 1004.


[26]   Having determined a genuine issue of material fact remains as to whether a

       mutual mistake of fact occurred, REMS argues “there is no need to even

       remand this case for a factfinder to determine the existence of a mutual

       mistake” and invites us to rescind the purchase agreement as a matter of law.

       Br. of Appellant at 18. However, as the parties apparently agree, REMS still

       bears the burden of proving its counterclaim by demonstrating a mutual mistake

       with clear and convincing evidence. See Estate of Reasor v. Putnam Cty., 635

       N.E.2d 153, 160 (Ind. 1994). As such, we must decline REMS’ invitation and

       remand for further proceedings. See Meyer v. Marine Builders, Inc., 797 N.E.2d

       760, 771 (Ind. Ct. App. 2003) (noting that “Indiana law is clear that whether

       the evidence meets the clear and convincing standard is not the proper inquiry

       on a summary judgment motion because such inquiry merely invites a weighing

       of the evidence.”)



                                                 Conclusion              3




       3
         As Medsker’s claim for declaratory relief is premised upon the absence of a mutual mistake of fact, we also
       reverse the trial court’s grant of summary judgment on this issue and remand for further proceedings.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019                  Page 16 of 17
[27]   For the reasons stated above, we conclude genuine issues of material fact

       remain regarding REMS’ counterclaim for mutual mistake of fact.

       Accordingly, we reverse the trial court’s grant of summary judgment and

       remand for further proceedings.


[28]   Reversed and remanded.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1704 | March 25, 2019   Page 17 of 17
