Douglas K. Hoffman, as successor trustee of the Hoffman HF Land Trust, and TDM Farms, Inc. v. Andrew G. James and Susan G. James (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
court except for the purpose of establishing Dec 29 2016, 8:28 am

the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Thomas K. Hoffman Francis A. Veltri
Merrillville, Indiana Merrillville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Douglas K. Hoffman, as December 29, 2016
successor trustee of the Hoffman Court of Appeals Case No.
HF Land Trust, and TDM 45A03-1604-CC-743
Farms, Inc., Appeal from the Lake Superior
Appellant-Plaintiffs, Court
The Honorable Calvin D.
v. Hawkins, Judge
Trial Court Cause No.
Andrew G. James and Susan G. 45D02-1311-CC-754
James,
Appellees-Defendants.

Mathias, Judge.

[1] Douglas K. Hoffman (“Hoffman”), as the successor trustee to the Hoffman HF

Land Trust (“the Trust”), and TMD Farms, Inc. (“TDM”) (collectively “the

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 Plaintiffs”), filed a complaint for damages and injunctive relief in Lake Superior

Court alleging that Andrew G. James and Susan G. James (“the Jameses”)

obstructed or interfered with the above-ground water course and severed the

underground tile system, which drained the Plaintiffs’ farm. The trial court

granted the Jameses’ motion for summary judgment. The Plaintiffs appeal and

present two issues for our review, which we restate as: (1) whether the Jameses

properly designated evidence in favor of their motion for summary judgment,

and (2) whether the trial court properly granted summary judgment in favor of

the Jameses. Finding the first issue dispositive, we reverse and remand for

further proceedings.

Facts and Procedural History

[2] Hoffman is the successor trustee of the Trust. The Trust owns certain real

property in Lake County that is used for farming. Hoffman is also a principal of

TDM Farms, Inc., which leases the Trust’s real estate. The Jameses own real

property in Lake County that is located adjacent to Trust’s property on its south

end. Both of the properties are drained by an above-ground water course and an

underground tile drainage system.

[3] In 2010, the Jameses excavated a portion of their property and created a pond

on the property. This resulted in an alteration to the drainage of Hoffman’s land

and subsequent flooding of the crops. Hoffman claimed that this caused

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 damage to his land and crops, and at some point in 2010,1 the parties entered

into settlement negotiations, which resulted in Hoffman signing a General

Release,2 which generally provides that, in exchange for $60,000, he and TDM

Farms would release the Jameses

from any and all claims, demands, damages, actions, causes of
action or suits of any kind or nature whatsoever, and particularly
on account of all injuries, known and unknown, both to person
and property, which have resulted, or may in the future develop,
from an incident/accident which occurred on or about JUNE 1,
2010, at or near CLARK STREET, in the County of LAKE, City
of Crown Point, State of Indiana, including, but not limited to,
all claims which were or could have been result [sic] of the above
described incident/accident.

Appellant’s App. p. 33.

[4] Three years later, on October 20, 2013, the Plaintiffs filed an action against the

Jameses, again claiming damages to their farmland and crops. The complaint

alleged in relevant part:

4. There exists and has existed on the lands of the Plaintiffs and
Defendants a natural aboveground water course, together with
an underground drain tile system, that drains the lands of both

1
On appeal, Hoffman notes that the release itself is undated. However, at the summary judgment hearing,
Hoffman’s counsel admitted that the release was from 2010.
2
As explained below, we conclude that, because it was unverified, the General Release should not have been
considered by the trial court in ruling on the Jameses’ motion for summary judgment. Still, it is a part of the
record before us, and we quote from it to better explain the parties’ arguments.

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 Plaintiffs and Defendants, running generally in a north to
south/southwesterly direction.
5. Water naturally flows aboveground over and underground
through the drain tile system from and through the land of
Plaintiffs to, over and through the land of Defendants when the
aboveground water course and underground drain tile system are
not obstructed.
6. During the course of and since the time of the construction of
a pond by Defendants upon Defendants’ land, Defendants
obstructed and continue to obstruct the aboveground water
course and severed the underground drain tile system which
drained the land of Plaintiffs.
7. By obstructing the aboveground water course and by severing
the underground drain tile, Defendants have interfered and
continue to interfere with the natural drainage of water from the
land of Plaintiffs.
8. As a direct and proximate result of Defendants’ actions,
water has remained on the lands of Plaintiffs from time to time,
flooding Plaintiffs’ land and causing damage to Plaintiff’s crops.
9. A portion of Plaintiffs’ real estate fails to have normal
drainage as the same existed prior to the obstruction of the
aboveground water course and the severance of the underground
drain tile by Defendants.
10. As a direct proximate result of the obstruction of the
aboveground water course and the severance of the underground
drain tile by Defendants, and the resulting failure of Plaintiffs’
lands to drain normally, Plaintiffs’ lands and the crops grown
thereon have been adversely affected.
11. The crop yield for corn and soybeans grown by Plaintiff,
TDM Farms, on the above-described real estate have been less
for the 2011, 2012 and 2013 crop years than the yields would
have been had there been no obstruction of the aboveground
water course and/or severance of the underground drain tile by
Defendants

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 12. The conduct of Defendants in obstructing the aboveground
water course and severing the underground drain tile is contrary
to Indiana law.
13. Defendants’ actions constitute unreasonable use of property
by Defendants causing injury to Plaintiffs and remain a
continuing nuisance.
14. Despite due demand by Plaintiffs upon Defendants for the
removal of the obstruction to the aboveground water course and
for repair of the underground drain tile causing damage to
Plaintiffs, Defendants have wholly failed and refused to take
remedial action in a timely manner and to the extent necessary to
eliminate or mitigate ongoing damages to Plaintiffs.
15. The obstruction of the aboveground water course and
severance of the underground drain tile by Defendants have
caused and will continue to cause damages to Plaintiffs until such
time as the obstructions to the aboveground water course are
removed and repairs are made to the underground drain tile
system.
16. Defendants actions in causing and inaction in removing the
aboveground water course obstructions and in severing and
failing to repair the underground drain tile system were and are
willful and wanton, intentional, and without justification and are
done with a reckless disregard for the consequences.
WHEREFORE, Plaintiffs, and each of them, pray for judgment
against Defendants, individual and jointly, in the following
respects:
1. For compensatory damages for the loss to Plaintiffs’ reduced
yield for 2011, 2012 and 2013 crop yields;
2. For punitive damages for Defendants’ conduct which was
willful, wanton, intentional or done with a reckless disregard for
the consequences;
3. For the costs to remove the obstructions of the aboveground
water course and to repair the underground drain tile system;

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 4. For a permanent injunction, enjoining Defendants from
causing or creating further obstruction of the aboveground water
course or causing any further damage to or interference with the
underground drain tile system to the detriment of Plaintiffs;
5. For the costs of this action; and
6. For all other just and proper relief in the premises.

Appellant’s App. pp. 10-13.

[5] The Jameses filed an answer to the complaint on December 20, 2013, in which

they denied the Plaintiffs’ claims. In addition, the Jameses asserted several

affirmative defenses, including release, accord and satisfaction, and payment.

Appellant’s App. p. 17.

[6] On January 22, 2016, the Jameses filed a motion for summary judgment, a

memorandum in support thereof, and a designation of evidence in support of

the motion, which delineated four items of evidence: (1) the April 15, 2011

letter Hoffman sent to the Jameses, (2) the General Release, (3) the Plaintiffs’

complaint, and (4) a letter sent by the Plaintiffs’ counsel to the Jameses’ insurer.

The Plaintiffs filed a response to the motion for summary judgment, including

designated evidence in support thereof, on February 29, 2016. The trial court

held a hearing on the summary judgment motion on March 9, 2016, and

granted the Jameses’ motion for summary judgment that same day. The

Plaintiffs now appeal.

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 Summary Judgment

[7] The standard of review we apply on review of a trial court’s order granting or

denying summary judgment is well settled: we review summary judgment de

novo, applying the same standard as the trial court. Rapkin Grp., Inc. v. Cardinal

Ventures, Inc., 29 N.E.3d 752, 756 (Ind. Ct. App. 2015), trans. denied (citing

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)). Drawing all reasonable

inferences in favor of the nonmoving parties, summary judgment is appropriate

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. Id. at 756-57. 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. Id. at 756. The initial burden is on the

movant to demonstrate the absence of any genuine issue of fact as to a

determinative issue, at which point the burden shifts to the nonmovant to come

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

Although the nonmoving party has the burden on appeal of persuading us that

the grant of summary judgment was erroneous, we carefully assess the trial

court’s decision to ensure that he was not improperly denied his day in court.

Id.

Discussion and Decision

[8] The Plaintiffs argue that the Jameses failed to properly designate the evidence

they relied on in their motion for summary judgment. We first note that the

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 Jameses fail to respond to this argument on appeal and instead argue only that

the trial court properly granted summary judgment in their favor.

[9] An appellee’s failure to respond to an issue raised in an appellant’s brief is akin

to failing to file a brief as to that issue. Elliott v. Rush Mem’l Hosp., 928 N.E.2d

634, 639 (Ind. Ct. App. 2010), trans. denied. Although the appellee’s failure does

not relieve us of our obligation to correctly apply the law to the facts in the

record in order to determine whether reversal is required, it is still the appellee’s

responsibility to controvert arguments raised by the appellant. Id. When an

appellee fails to respond to an issue raised in the appellant’s brief, the appellant

need only establish prima facie error in the trial court’s ruling. Id. In this

context, prima facie means “‘at first sight, on first appearance, or on the face of

it.’” Id. (quoting Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 837 (Ind.

Ct. App. 2005), trans. denied). With this more less strict standard in mind, we

address the Plaintiffs’ claims.

[10] The Jameses filed a motion for summary judgment, a memorandum in support

of the motion, and a separate designation of evidence, the latter of which

provides:

Defendants, Andrew G. James and Susan G. James, by counsel,
pursuant to Trial Rule 56 of the Indiana Rules of Trial
Procedure, in support of their Motion for Summary Judgment,
designate the following evidence:
1. Letter dated April 15, 2011, Exhibit A
2. General Release, Exhibit B

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 3. Complaint, Exhibit C
4. Letter dated May 26, 2011, Exhibit D

Appellant’s App. p. 29. The referenced documents were attached to the

designation. The Plaintiffs argue that the trial court should not have considered

this evidence designated by the Jameses because the designated materials were

not verified.

[11] As noted above, Exhibit A consists of a letter from Hoffman, Exhibit B is the

General Release, Exhibit C is the Plaintiffs’ complaint, and Exhibit D is a letter

sent by Plaintiffs to the Jameses’ insurer.

[12] The Plaintiffs correctly note that Indiana courts have long held that unsworn

statements and unverified exhibits do not qualify as proper Rule 56 evidence

and should not be considered when ruling on a motion for summary judgment.

Ford v. Jawaid, 52 N.E.3d 874, 877 (Ind. Ct. App. 2016) (citing Stafford v.

Szymanowski, 31 N.E.3d 959, 964 (Ind. 2015); Smith v. Delta Tau Delta, Inc., 9

N.E.3d 154, 159 (Ind. 2014); Ind. Univ. Med. Ctr., Riley Hosp. for Children v.

Logan, 728 N.E.2d 855, 858 (Ind. 2000)); see also Wallace v. Indiana Ins. Co., 428

N.E.2d 1361, 1365 (Ind. Ct. App. 1981) (“An unsworn statement or unverified

exhibit does not qualify as proper evidence.”); Pomerenke v. Nat’l Life & Acc. Ins.

Co., 143 Ind. App. 472, 474, 241 N.E.2d 390, 392 (1968) (“[W]e agree with

appellant that it was not proper to consider the unverified exhibit filed with the

motion [for summary judgment] in this case.”).

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[13] Despite this clear requirement, practitioners often secure the admission of

unverified exhibits for summary judgment, such as correspondence, by the

agreement of opposing counsel. This is a courtesy, so that counsel need not

prepare the routine, verification affidavit(s) for, or call or depose witnesses to

verify, such common pieces of evidence shared by, and often originated

between, the parties. However, in this instance, counsel for the plaintiffs

repeatedly objected to the admission of the unverified exhibits at the hearing on

the motion for summary judgment and carried the objections forward in this

appeal.

[14] Nothing in the record indicates that Exhibits A, B, and D, which were

designated by the Jameses and attached to their motion for summary judgment,

were verified. Instead, it appears as if the Jameses simply attached unverified

copies of these items to their designation of evidence without the agreement of

Plaintiffs’ counsel. This was improper but is likely to be quickly remedied in the

trial court below.

[15] We are therefore constrained to conclude that the Plaintiffs have established

prima facie error on the part of the trial court for considering these unverified

materials on summary judgment. The only remaining evidence that the Jameses

designated is the Plaintiffs’ complaint, which in no way supports the Jameses’

motion for summary judgment. Thus, the Jameses failed to support their

motion for summary judgment with any properly designated evidence that

would demonstrate that they were entitled to judgment as a matter of law.

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 Accordingly, the trial court erred in granting summary judgment in favor of the

Jameses.

Conclusion

[16] Because the Jameses failed to properly designate the evidence in support of

their motion for summary judgment, we reverse the trial court’s grant of

summary judgment in favor of the Jameses and remand for further proceedings

consistent with this opinion.

[17] Reversed and remanded.

Robb, J., and Brown, J., concur.

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