      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                                          Nov 18 2015, 5:54 am
      Memorandum Decision shall not be 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.



      APPELLANT PRO SE                                              ATTORNEY FOR APPELLEE
      Maria E. Bonner                                               Rick C. Gikas
      Gary, Indiana                                                 Merrillville, Indiana



                                                     IN THE
             COURT OF APPEALS OF INDIANA

      Maria Bonner,                                                 November 18, 2015

      Appellant-Plaintiff,                                          Court of Appeals Case No.
                                                                    45A03-1505-PL-429
                 v.                                                 Appeal from the Lake Superior
                                                                    Court.
                                                                    The Honorable Diane Kavadias
      Elena Magana,                                                 Schneider, Judge.
      Appellee-Defendant.                                           Cause No. 45D11-1407-PL-78




      Barteau, Senior Judge


                                         Statement of the Case                    1




[1]   Maria Bonner appeals from the trial court’s order on Bonner’s motion for

      summary judgment and Elena Magana’s counter-motion for summary




      1
          In her opening brief, Bonner requests oral argument in this appeal. We deny Bonner’s request.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1505-PL-429 |November 18, 2015              Page 1 of 11
      judgment, contending that the trial court erred by denying her motion and

      granting Magana’s motion. We affirm.


                               Facts and Procedural History
[2]   Bonner is Magana’s daughter and the two lived together in a residence located

      at 3725 Grand Boulevard in East Chicago. On November 20, 2012, James

      Mason, Bonner’s former boyfriend, transferred ownership of the property to

      Magana by quitclaim deed, which was recorded by the assessor’s office on

      November 26, 2012.


[3]   In June 2014, Magana discovered several pieces of her jewelry were missing

      and, suspecting that Bonner was responsible for or involved in the

      disappearance of the jewelry, filed an ejectment action against her. After

      determining in that action that Magana was the legal owner and that Bonner

      had not established a legal claim to the property, the trial court entered an order

      to evict Bonner.


[4]   Shortly after the ejectment action was filed, Bonner filed a complaint seeking to

      quiet title to the property in her name, alleging 1) breach of oral contract, 2)

      breach of a covenant of good faith, 3) intentional misrepresentation, 4)

      employment discrimination and wrongful discharge, and 5) intentional

      infliction of emotional distress. Bonner also filed a Chapter 7 bankruptcy

      petition, and filed an emergency motion to stop eviction, which was denied by

      the bankruptcy court for failure to state a claim. Bonner left the residence by

      the date ordered by the trial court, September 2, 2014.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1505-PL-429 |November 18, 2015   Page 2 of 11
[5]   On November 5, 2014, Magana deeded the residence to her son, Thomas P.

      Magana. On November 24, 2014, Bonner sent a verified notice to her mother

      of her intent to file a mechanic’s lien against the property alleging that she was

      owed $7,000.00 for work done there. Later, Bonner filed a “claim of lien” on

      the property for improvements Bonner alleged she performed there, contending

      that she was owed $10,000.00 for work done through November 10, 2014.


[6]   On December 4, 2014, Bonner filed a motion to void the transfer of quitclaim

      deed to Thomas P. Magana. She also sent a letter to Thomas threatening to

      place liens on the house he owned with his wife and against his incorporated

      business.


[7]   Both Bonner and Magana filed motions for summary judgment in the quiet title

      action and designated materials in support of their positions. Bonner

      designated Mason’s affidavit in which he claimed that Bonner paid the

      purchase price of $2,000.00 for the property to him. He claimed that he was

      aware of an oral agreement between Magana and Bonner to list Magana on the

      deed as the owner of the property for tax purposes only, and that at any time

      Bonner could demand that her name and not Magana’s be listed on the title as

      the owner of the property.


[8]   Magana, however, stated in her affidavit that Bonner was under a federal

      restitution order for her convictions of defrauding the Social Security

      Administration in the amount of $434,617.30 and the United States

      Department of Education in the amount of $24,999.00. Magana’s name was


      Court of Appeals of Indiana | Memorandum Decision 45A03-1505-PL-429 |November 18, 2015   Page 3 of 11
       listed on the quitclaim deed in order to take advantage of certain tax deductions

       available due to Magana’s age, but there was no written or oral agreement

       requiring Magana to deed the property to Bonner on some future date. Magana

       said that when Mason offered to deed the house to her she accepted.


[9]    Magana flatly denied ever employing Bonner, paying her any wages, or

       promising to pay her any wages. After Bonner left the residence, Magana did

       not authorize Bonner or anyone acting on Bonner’s behalf to return there to

       perform any work on, or supply any materials to, the property. She also stated

       that no work had been done on the property since September 2, 2014. Magana

       asserted that all of the improvements listed by Bonner had been performed

       before that date. Further, she claimed that she was not an agent or employee of

       a governmental entity and had no official power or authority granted by a

       governmental entity.


[10]   The trial court held a hearing on the cross-motions for summary judgment and

       took the matter under advisement. Later, the trial court issued its order denying

       Bonner’s motion and granting Magana’s motion. Bonner now appeals.


                                    Discussion and Decision
[11]   We review an order on summary judgment de novo applying the same standard

       as that used by the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

       2014). We draw all reasonable inferences in favor of the non-moving parties

       and will find that summary judgment is appropriate if the designated

       evidentiary matter shows that there are no genuine issues as to any material fact

       Court of Appeals of Indiana | Memorandum Decision 45A03-1505-PL-429 |November 18, 2015   Page 4 of 11
       and that the moving party is entitled to judgment as a matter of law. Id. A fact

       is considered to be material if its resolution would affect the outcome of the

       case. Id. An issue is considered to be 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. Id.


[12]   The party moving for summary judgment bears the initial burden of

       demonstrating the absence of any genuine issue of fact as to a determinative

       issue. Id. Once that burden is met, the burden shifts to the non-movant to

       come forward with contrary evidence showing an issue for the trier of fact. Id.

       The non-moving party has the burden on appeal of persuading us that the grant

       of summary judgment was erroneous. Id. However, on review, we carefully

       assess the trial court’s decision to ensure that the non-moving party was not

       improperly denied his or her day in court. Id. In addition, the fact that both

       parties have filed cross-motions for summary judgment does not alter our

       standard of review. Sargent v. State, 27 N.E.3d 729, 732 (Ind. 2015). We

       consider each motion separately to determine whether the moving party is

       entitled to judgment as a matter of law. Id.


[13]   Magana contends that all of Bonner’s allegations of error are waived for failure

       to present cogent reasoning supported by citation to authorities, statutes, the

       appendix or parts of the record on appeal. See Ind. Appellate Rule 46(A)(8)(a).

       Indeed, the few citations to case law used by Bonner in her brief refer only to

       the standard of review for summary judgment. “[A] pro se litigant is held to the

       same standards as a trained attorney and is afforded no inherent leniency”

       Court of Appeals of Indiana | Memorandum Decision 45A03-1505-PL-429 |November 18, 2015   Page 5 of 11
       because of her self-representation. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind.

       2014). However, we prefer to decide issues on the merits and do so here. See,

       e.g., Montgomery v. State, 21 N.E.3d 846, 857 (Ind. Ct. App. 2014), trans. denied.


[14]   Bonner alleged that Magana breached an oral agreement for the transfer of a

       deed to the property upon Bonner’s request. As it pertains to this case, the

       Statute of Frauds provides that a person may not bring an action involving any

       contract for the sale of land unless the promise, contract, or agreement upon

       which the action is based is in writing and signed by the party against whom the

       action is brought. Ind. Code § 32-21-1-1(b)(4) (2002). Indiana courts have

       applied the principle that an agreement to convey land is subject to the writing

       requirement of the Statute of Frauds. Huber v. Hamilton, 33 N.E.3d 1116, 1123

       (Ind. Ct. App. 2015). This is so because the underlying purpose of the Statute

       of Frauds’ writing requirement is to preclude fraudulent claims when the word

       of one person is pitted against the word of another person, and to remove the

       temptation of perjury. Id.


[15]   In support of her argument, Bonner was required to establish the elements of a

       breach of contract action, namely, the existence of a contract, Magana’s breach

       of the contract, and damages. See Fowler v. Campbell, 612 N.E.2d 596, 600 (Ind.

       Ct. App. 1993). Here, Bonner has failed to establish the existence of the

       contract. Because the quitclaim deed was required to be in writing, any

       agreement between Bonner and Magana for a future conveyance of the property

       was also required to be in writing. See Johnson v. Sprague, 614 N.E.2d 585, 588

       (Ind. Ct. App. 1993) (enforceable land sale contract must be evidenced by a

       Court of Appeals of Indiana | Memorandum Decision 45A03-1505-PL-429 |November 18, 2015   Page 6 of 11
       writing consistent with underlying purposes of Statute of Frauds). Since there

       was no genuine issue of material fact as to Bonner’s allegation of breach of oral

       agreement, the trial court correctly granted summary judgment in favor of

       Magana on that issue.


[16]   Next, Bonner argued that Magana breached a covenant of good faith and fair

       dealing by failing to convey title to the property to Bonner upon her request.

       Bonner’s complaint alleged that “[t]he law imposed duties on [Magana] to

       honor and abide in good faith toward [Bonner].” Appellant’s App. p. 3. The

       complaint further alleged that Magana denied “the oral agreement without

       probable cause and in bad faith; . . . by attempting to cover up the fact that there

       was no good cause to deny [Bonner] for the title based on the oral agreement.”

       Id.


[17]   We have already determined that there was no enforceable agreement for the

       conveyance of the property to Bonner. Therefore, the trial court correctly

       granted summary judgment in favor of Magana on that ground alone. Further,

       while Indiana courts have recognized an implied covenant of good faith and

       fair dealing in contract law, that covenant is generally only in limited

       circumstances involving employment and insurance contracts, neither of which

       are applicable here, and only applies to written contracts. See Allison Union

       Hosp., Inc., 883 N.E.2d 113, 123 (Ind. Ct. App. 2008). The trial court did not

       err by granting summary judgment in favor of Magana.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1505-PL-429 |November 18, 2015   Page 7 of 11
[18]   Bonner also alleged that Magana engaged in intentional misrepresentation. She

       asserts that Magana “promised good faith and easy claim payment” to Bonner,

       but did not intend to follow through with the promises, which “induc[ed]

       [Bonner] to rely upon them and to act or refrain from acting in reliance of the

       oral agreement.” Appellant’s App. pp. 3-4.


[19]   “The elements of common-law fraud are ‘(1) a material misrepresentation of

       past or existing fact which (2) was untrue, (3) was made with knowledge of or

       in reckless ignorance of its falsity, (4) was made with the intent to deceive, (5)

       was rightfully relied upon by the complaining party, and (6) which proximately

       caused the injury or damage complained of.’” Kesling v. Hubler Nissan, Inc., 997

       N.E.2d 327, 335 (Ind. 2013) (quoting Lawyers Title Ins. Corp. v. Pokraka, 595

       N.E.2d 244, 249 (Ind. 1992)). Additionally, actionable fraud arises from false

       representations of past or existing facts, not from representations as to future

       action or future conduct. Kopis v. Savage, 498 N.E.2d 1266, 1272 (Ind. Ct. App.

       1986). Actionable fraud cannot be based on things such as broken promises,

       unfulfilled predictions, or statements of existing intent which are never carried

       out. Id.


[20]   Bonner relied upon her assertion that Magana made an oral promise to convey

       title to the property to her upon demand on an undetermined future date, not

       on a claim that Magana made a material misrepresentation of past or existing

       fact. Therefore, Magana has established that she was entitled to summary

       judgment because there was no genuine issue of material fact as to one of the

       elements of actual fraud—a material misrepresentation of past or existing fact.

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[21]   Moreover, she cannot establish a genuine issue of material fact to support a

       claim of constructive fraud. Of the five elements of constructive fraud, Bonner

       cannot establish a genuine issue of material fact about a violation of a duty

       owed to her by the making of deceptive material misrepresentations of past or

       existing facts or remaining silent when a duty to speak exists. See Demming v.

       Underwood, 943 N.E.2d 878, 892 (Ind. Ct. App. 2011), trans. denied. A plaintiff

       alleging the existence of constructive fraud has the burden of proving this

       element. Id.


[22]   In the fourth count of Bonner’s complaint, she alleged “discharge in violation of

       [the] oral agreement.” Appellant’s App. p. 4. She stated that Magana

       “discriminated against [her] in violation of oral agreement. Said discharge and

       discrimination violated public policy, common law and [Bonner’s]

       constitutional rights, which states that a person may not be deprived.” Id.


[23]   There is no evidence that Magana ever employed Bonner. Assuming, arguendo,

       that Magana did employ Bonner, Indiana is an employment at will state,

       allowing employers to discharge an employee for any reason or no reason at all.

       Baker v. Tremco, Inc., 917 N.E.2d 650, 653 (Ind. 2009). Therefore, Bonner has

       no valid claim related to being discharged from whatever employment she

       claims existed.


[24]   Additionally, the Indiana Code defines a discriminatory practice in pertinent

       part as “the exclusion of a person from equal opportunities because of race,

       religion, color, sex, disability, national origin, ancestry, or status as a veteran.”


       Court of Appeals of Indiana | Memorandum Decision 45A03-1505-PL-429 |November 18, 2015   Page 9 of 11
       Ind. Code § 22-9-1-3(1)(1) (2010). Here, there is no allegation that Magana

       discriminated against Bonner for any of those reasons. Bonner did not set forth

       designated materials showing that she had filed a discrimination charge with

       the Equal Employment Opportunity Commission a prerequisite to bringing an

       employment discrimination action. See 29 C.F.R. § 1614.105 (2010); 42

       U.S.C.A. § 2000e-5 (2009). Consequently, Magana was entitled to summary

       judgment on that claim.


[25]   Bonner had claimed that her discharge from employment for her mother was in

       violation of Bonner’s constitutional rights. The purpose of 42 U.S.C.A. § 1983

       is to deter state actors, and private individuals acting in collaboration with state

       officials, from using a “badge of authority” to deprive individuals of rights

       guaranteed by the United States Constitution. K.M.K. v. A.K., 908 N.E.2d 658,

       662 (Ind. Ct. App. 2009), trans. denied. A plaintiff seeking redress under § 1983

       must show that the defendant deprived the person of a right while acting under

       color of law. Id. In order to establish that the defendant was acting under color

       of law, the plaintiff must present evidence of a concerted effort between a state

       actor and the defendant. Id.


[26]   Here, Magana stated in her affidavit, which was designated for summary

       judgment, that she was not an agent or employee of any governmental entity

       and had no official power or authority granted to her by a governmental entity.

       Bonner did not designate evidence to the contrary. Because the designated

       evidence did not establish that Magana was acting under color of law, the trial



       Court of Appeals of Indiana | Memorandum Decision 45A03-1505-PL-429 |November 18, 2015   Page 10 of 11
       court correctly granted summary judgment in her favor on Bonner’s claim

       alleging a violation of constitutional rights.


[27]   Bonner’s last allegation against Magana was a claim for intentional infliction of

       emotional distress. Again, Bonner’s claim was based upon the alleged oral

       agreement between the two women. “[E]motional distress is not a recoverable

       damage under a pure breach of contract theory.” Holloway v. Bob Evans Farms,

       Inc., 695 N.E.2d 991, 995 (Ind. Ct. App. 1998). Therefore, the trial court

       correctly entered summary judgment in Magana’s favor on this claim.


[28]   Woven throughout Bonner’s arguments is the reference that she paid $2,000.00

       for the property titled in Magana’s name, and that Magana’s claim to title in the

       property should fail for want of consideration. This argument is unpersuasive

       because it is not relevant to any of the claims before us. Each of Bonner’s

       claims is based on the breach of an alleged oral agreement to transfer title to the

       property. Magana’s lack of consideration in the original purchase of the

       property from Mason, if indeed it was sold and not transferred as a gift, is

       irrelevant to the breach of contract claims.


                                                Conclusion
[29]   In light of the foregoing, the trial court’s decision is affirmed in all respects.


[30]   Affirmed.


       Najam, J., and May, J., concur.



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