Sabrina Graham v. Thomas S. Wininger (mem. dec.) ( 2019 )

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.
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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
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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.
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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.
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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
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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.
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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.
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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
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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.
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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
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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
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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.
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[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.
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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
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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.
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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.
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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.
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