Eric Brazier d/b/a Brazier Painting v. Maple Lane Apartments I, LLC ( 2015 )

Oct 22 2015, 9:37 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristin R. Fox Lily M. Schaefer
Fox Law Firm Chad W. Nally
Mishawaka, Indiana Genetos Retson & Yoon LLP
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric Brazier d/b/a Brazier October 22, 2015
Painting, Court of Appeals Case No.
Appellant-Plaintiff, 71A04-1406-CC-278
Appeal from the St. Joseph
v. Superior Court
The Honorable Jenny Pitts Manier,
Maple Lane Apartments I, LLC, Judge
Appellee-Defendant Trial Court Cause No.
71D05-1105-CC-375
Robb, Judge.
Case Summary and Issues
[1] Eric Brazier sued Maple Lane Apartments I, LLC (“Maple Lane”), claiming he
had performed over $60,000 in painting services at Maple Lane’s request for
which he had not been paid. Following a five-day bench trial, the trial court
entered judgment in favor of Maple Lane and imposed sanctions against
Brazier’s counsel in the amount of $5,000 toward Maple Lane’s attorney fees.
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Brazier now appeals, raising several issues for our review, which we have
restated as: 1) whether the trial court erred in denying his motion for summary
judgment; 2) whether the trial court erred in its evidentiary ruling on certain
exhibits proffered by Brazier; 3) whether the trial court’s judgment is clearly
erroneous; and 4) whether the trial court erred in imposing sanctions.
Concluding there was no error in any respect, we affirm.
Facts and Procedural History
[2] Maple Lane consists of 396 apartments in 100 buildings and a clubhouse in
South Bend, Indiana. Sometime prior to 2006, Maple Lane hired Brazier to do
interior painting work at the complex on an as-needed basis. Sue Papaj, who
became Maple Lane’s property manager in 2006, was Brazier’s primary
contact. She would apprise Brazier of vacant apartments, and he would paint
the interior for approximately $160 per apartment. In addition, Papaj
occasionally sought permission from her boss for Brazier to perform “extra
work,” which included such things as cleaning gutters, painting common areas,
and exterior painting. Transcript at 58. In 2009, Brazier was asked to repair
and paint the wood around two bay windows on the clubhouse and to paint the
picture windows, the common door frame, and the apartment numbers on
seven buildings on Norway Maple Court. He was then asked to paint the
exterior windows on a few other buildings that were in bad condition
(collectively, the “Clubhouse Project”).
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[3] Typically, Brazier would handwrite invoices for the work he did and submit
them to Papaj within two weeks of completing the work. The date on the
invoice would reflect the date he turned the invoice in rather than the date he
did the work. Brazier did not keep copies of the invoices he submitted to Maple
Lane. Papaj reviewed the invoices, initialed them to indicate payment should
be made, and sent them to Maple Lane’s corporate office in Chicago for
payment. Checks were sent directly to Brazier.
[4] In early 2010, Maple Lane instructed Papaj to stop using Brazier’s services.
When Papaj called Brazier to let him know that his services would no longer be
required, she told him to finish up what he was doing and bring her any unpaid
invoices. Brazier delivered a few invoices to Papaj which she initialed and sent
to Maple Lane. Papaj believed Brazier had submitted, and she had initialed,
invoices totaling approximately $3,200 that Maple Lane ultimately did not pay.
At the end of March or beginning of April, Brazier brought approximately 100
invoices to Papaj for exterior work he claimed to have done on every building
in the complex, charging between $525 and $550 for each building (the “Bay
Window Project”). He indicated he started this project in 2008 or 2009; Papaj
claimed Brazier was never asked to, and in fact did not do, this work. Papaj did
not initial the invoices, but she did send them on to Maple Lane.
[5] On May 12, 2011, Brazier filed a Verified Complaint on Account against Maple
Lane, seeking payment of $63,995. Attached to the complaint was a summary
of Brazier’s invoices to Maple Lane from December 2008 to April 2010,
showing the invoice number, amount, and whether it had been paid. Also
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attached to the complaint were 114 allegedly unpaid invoices dated from June
1, 2009 to April 30, 2010, including ninety-nine invoices all dated April 30,
2010, for the Bay Window Project. Appellant’s Appendix at 36-61. Maple
Lane filed its answer on July 13, 2011.
[6] Brazier filed a motion for partial summary judgment contending, in part, Maple
Lane’s answer was a judicial admission that the invoices for the Bay Window
Project were due and owing. Following a hearing, the trial court denied the
motion:
[Brazier] too narrowly construes [Maple Lane’s] Answer as an
acknowledgement by [Maple Lane]—a judicial admission as is
claimed by [Brazier]—that [Brazier’s] invoices are accurate and
that the work described in each invoice was actually performed.
[Brazier] takes an inartfully drafted answer and construes it too
readily as an admission. . . .
***
Beyond that fact, [Brazier] has failed to show the absence of a
genuine issue of fact. It appears clear that many of the numerous
invoices, including what would appear to be most if not all of the
invoices dated April 30, 2010, appear to be the same invoice,
reproduced over 100 times, differing only by the apartment
building or unit at which services were alleged to have been
provided. There are numerous inferences that may be drawn
from this evidence, including inferences that would stand to
defeat [Brazier’s] claim. Thus, [Maple Lane] is not obligated to
come forth with evidence to defeat [Brazier’s] Motion.
Nonetheless, the evidence designated by [Maple Lane] is
sufficient to raise a question of fact concerning [Brazier’s] billing.
Id. at 9-10.
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[7] During the discovery process, Maple Lane filed a motion to compel discovery
and for sanctions against Brazier. The trial court did not rule on the motion
before trial. Throughout the litigation, Brazier and his counsel referred to the
invoices attached to the complaint as “copies” of the invoices he had submitted
to Papaj and Maple Lane. It was determined for the first time at trial, however,
that the “copies” were actually created by Brazier for the purpose of litigation
after consulting with counsel. Maple Lane renewed and supplemented its
motion for sanctions during trial.
[8] At the request of the parties, the trial court issued findings of fact and
conclusions thereon after the conclusion of the trial. In large part, the trial
court’s findings came down to a credibility call, as the trial court noted the main
witnesses—Brazier and Papaj—gave testimony that was “often and grossly
wholly contradictory and irreconcilable. Effectively, each was testifying that
the other was lying.” Id. at 16. Ultimately, the trial court determined there
were numerous issues with respect to Brazier’s credibility—including his
“poorly organized and almost wholly idiosyncratic” recordkeeping, id. at 13,
his poor memory of events, and irregularities with regard to the timing and
amount of the Bay Window Project invoices—and further determined “Papaj
was a credible witness.” Id. at 16. The trial court concluded “Brazier has not
proven by a preponderance of the evidence that he was authorized to perform
or that he even did perform the Bay Window Project. The Court concludes that
this work was not authorized (beyond the Clubhouse Project) and was not
performed.” Id. at 20. Accordingly, the trial court entered judgment for Maple
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Lane and against Brazier on Brazier’s complaint. The trial court also
determined that sanctions against Brazier and/or his counsel were appropriate,
but held an order on such sanctions under advisement until Maple Lane had an
opportunity to submit an affidavit of attorney fees and an “explanation of the
sanctions it believes the Court should consider.” Id. at 22.
[9] Following the entry of judgment against him, Brazier filed a motion to
reconsider and motion to correct error. Pursuant to the court’s order, Maple
Lane filed an explanation of the sanctions it deemed appropriate, seeking
attorney fees incurred from the time of Brazier’s motion for summary judgment
through trial and additional sanctions against Brazier’s counsel for violations of
Trial Rule 11(A). In a single order, the trial court denied Brazier’s motion to
reconsider and motion to correct error and imposed a sanction against Brazier’s
counsel of $5,000, “which amount will alleviate only a modest amount of the
expense incurred by [Maple Lane] as a result of the conduct and lack of candor
of [Brazier’s] counsel.” Id. at 26. Brazier now appeals.
Discussion and Decision
I. Brief of Appellant
[10] At the outset, we must note several significant deficiencies in the “Corrected”
Brief Brazier filed with this court.1 Brazier initially filed his brief on December
1
We note two other deficiencies in the preparation of this appeal that hindered our review. First, despite the
court reporter’s representation to this court in a motion for extension of time to file the transcript that there
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19, 2014. The brief contained a one-page Table of Contents—showing three
headings under the Argument section all beginning on page 18—and a four-
page Table of Authorities. On December 31, 2014, Brazier filed a Motion to
File Corrected Brief to Correct Table of Contents and Table of Authorities. In
the motion, counsel alleged she had been unable to complete the brief even after
two extensions of time “due to the length of time to review and cite to the
voluminous transcript, exhibits, and post-trial filings of the numerous and
complex issues on appeal,” but had nonetheless filed a brief by the date ordered.
She noted the Table of Contents and Table of Authorities in the brief “provide
citations to incorrect page numbers and the correct authorities are not listed in
alphabetical order.” Therefore, she requested leave to file “a corrected
Appellant’s Brief limited to the Table of Contents and Table of Authorities in
order to provide the correct page numbers and correct authorities in alphabetical order.
Brazier will make no changes to other parts of the Brief.” (Emphasis added.)
This court granted Brazier’s motion, directing him to file an Amended
Appellant’s Brief “in order to correct the Table of Contents and Table of
Authorities . . . . No substantive changes shall be made to the Amended Appellant’s
Brief.” (Emphasis added.) Brazier timely filed his Corrected Brief of Appellant
on March 2, 2015.
were 750 pages of exhibits to be copied and bound, the materials transmitted to this court did not include
exhibit volumes, nor does our docket reflect that exhibit volumes were tendered. See Ind. Appellate Rule
29(A). Brazier included in his appendix some, but not all, of the exhibits. Second, the court reporter is to
prepare a separately bound table of contents for the transcript. See App. R. 28(A)(8). Our file contains no
such table of contents for the three-volume, 760-page transcript.
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[11] Appellate Rule 46(A) requires the following sections to appear in an appellant’s
brief:
(1) Table of Contents. The table of contents shall list each section
of the brief, including the headings and subheadings of each
section and the page on which they begin.
(2) Table of Authorities. The table of authorities shall list each
case, statute, rule, and other authority cited in the brief, with
references to each page on which it is cited. The authorities shall
be listed alphabetically or numerically, as applicable.
[12] Although Brazier’s corrected brief does indeed include these sections, the Table
of Contents is now thirty-seven pages long, followed by an eleven-page Table of
Authorities. To illustrate how such lengthy tables are possible—despite the
substantive portion of the brief being only forty-three pages—we have randomly
selected an entry from the corrected Table of Contents, which appears under the
“Argument” section:
I. The trial Ct. improperly relied on Papaj’s and Cory’s mere
“belief” (improper hearsay under Ind. Evidence Rule 801 and
802) that Brazier had already been paid for the invoices and the
balance of the Account Stated as neither Papaj nor Corey had
personal knowledge or any documentary evidence that the
subject invoices making up the account stated were actually paid
as, pursuant to Ind. Trial Rule 8(C), [Maple Lane] had the
“burden of proving . . . payment” to Brazier of each of the
unpaid invoices of Brazier’s Account Stated and [Maple Lane’s]
required burden of proof of payment “is subject to the rules of
evidence” [appearing on pages] 8-16, 24-6, 27, 28, 29, 31, 35, 37,
39
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[13] This is neither a proper heading, nor is it a heading appearing on any of the
pages listed. In fact, the Argument section of the brief, which does not even
begin until page 16, includes no headings or subheadings at all, despite the
corrected Table of Contents listing headings A through ZZ, with multiple
subheadings (and some sub-subheadings) under most headings. To the extent
the Table of Contents makes sense at all, it represents, at best, an abject failure
to understand the most basic requirements of appellate briefing. At worst, it is a
blatant attempt to make additional argument without complying with the page
and word limitations of a brief, see App. R. 44 (excluding the table of contents
from the page and word length limits therein), and is in direct contravention of
this court’s order that Brazier make no substantive changes to the brief.
[14] The Table of Authorities is not as egregious, but nonetheless fails to comply
with the rule and this court’s order. It includes, for instance, the following:
Hirsch v. Merchants Nat’l Bank & Trust Co. of Indiana, 336 N.E.2d
833 (Ind. Ct. App. 1975) (providing eight percent interest in
action for breach of lease). When the parties’ contract does not
provide an interest rate; therefore, the statutory interest rate of
eight percent is applicable. (cited in App. 75-76) [appearing on
page] 12
Corrected Brief of Appellant at iii-iv. 2
2
Although it is inappropriate to provide a record cite in the Table of Authorities, we must note this entire
passage from the Table of Authorities actually appears on page 77 of the Appellant’s Appendix as part of
Brazier’s proposed order granting partial summary judgment, which the trial court did not sign.
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[15] First of all, a Table of Authorities should simply be a list of cases, statutes and
other authorities relied on in the brief, presented without further comment.
Again, this appears to be an attempt to circumvent the page and word length
limitations imposed by the rules and make additional substantive argument in
violation of this court’s order. Moreover, no case citations let alone Hirsch,
appear on page 12 of the brief (which is, in fact, appropriate because page 12 is
part of the Statement of the Facts, which should not include argument), nor is
any reference to interest made on that page. And our review of the brief does
not find Hirsch cited at all.3 Thus, the Table of Authorities fails at its basic and
only purpose of informing us of the cases cited in the brief and directing us to
where in the brief a particular case is discussed.
[16] None of this is within the letter or spirit of Appellate Rule 46(A), and we have
therefore disregarded everything contained in the Table of Contents and Table
of Authorities. What we cannot as easily disregard in our consideration of this
3
In fact, Hirsch also does not appear in the Table of Authorities in the originally filed brief; neither do fifty-
nine other cases listed in the corrected Table of Authorities. Forty-three of the newly included cases are
allegedly cited on pages 14 and 22 of the brief, but in fact are not cited in the brief at all (no case cites appear
on page 14 and only two case cites appear on page 22, neither of which are any of these cases). Instead, each
of those forty-three cases are “cited in App. 537-597,” Corrected Br. of Appellant at i-vii, which is Brazier’s
proposed findings of fact and conclusions of law. Again, it is inappropriate to provide a record cite in the
Table of Authorities. Pages 14 and 22 of the brief mention, in passing, Brazier’s proposed findings and
conclusions. To the extent Brazier was trying by these references to incorporate argument in the form of the
version of the findings and conclusions that he advanced, we note first that the trial court rejected his
proposed findings, and second that a party may not present argument by incorporating by reference from a
source outside the brief. Pluard v. Patients Comp. Fund, 705 N.E.2d 1035, 1037-38 (Ind. Ct. App. 1999), trans.
denied.
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appeal, however, are the deficiencies in Brazier’s Argument section. Appellate
Rule 46(A) states the following with respect to the Argument:
(8) Argument. This section shall contain the appellant's
contentions why the trial court or Administrative Agency
committed reversible error.
(a) The argument must 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, in accordance with Rule 22.
***
(c) Each argument shall have an argument heading. If
substantially the same issue is raised by more than one asserted
error, they may be grouped and supported by one argument.
[17] As noted above, despite the numerous “headings and subheadings” shown in
the Table of Contents, Brazier’s Argument section—which, incidentally, is not
itself labeled as such, and is distinguished from the Summary of Argument
section only by the heading “Standard of Review”—contains no headings or
subheadings. Not only are headings required by the rule, but they may have
helped to focus Brazier’s argument, which lacks the cogent reasoning also
required by the rule. For instance, on two consecutive pages of the brief,
essentially the same sentence appears four times. Corrected Br. of Appellant at
19-20. The content of two pages of the brief are replicated in whole several
pages later. Id. at 25-27, 29-31. It appears arguments made in trial court filings
may have been copied and pasted into the brief, leading to nonsensical
statements such as “[t]his Court erred by failing to take mandatory judicial notice
of the judicial admissions made in [Maple Lane’s] Answer” and “[t]his Court
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erred by failing to follow Indiana law[,]” id. at 21-22 (emphasis added), when
this court has yet to do anything. What has most hindered our review, however,
is that there is no rhyme or reason to the manner in which Brazier has presented
his argument. Rather than clearly stating an issue and discussing it to
conclusion, discussion of all the issues is intermixed throughout.
[18] A party waives any issue for which it fails to provide argument and authority.
Westervelt v. Woodcock, 15 N.E.3d 75, 76 n.1 (Ind. Ct. App. 2014). We do not
have to consider an issue that is “too poorly developed or expressed to be
understood.” Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct.
App. 2014), trans. denied, cert. denied, 2015 WL 4505132 (2015). However, we
prefer to decide appeals on their merits when possible. Omni Ins. Grp. v. Poage,
966 N.E.2d 750, 753 (Ind. Ct. App. 2012), trans. denied. With the assistance of
Maple Lane’s distillation of the issues in its brief, we will address the merits of
the arguments we can discern. Any issue not explicitly addressed herein is
waived for failure to make a cogent argument.4
4
Counsel’s failures to follow even the simplest rules regarding the content of an appellate brief have made
our review of this case unnecessarily difficult. We commend Maple Lane for largely refraining from
comment on the quality of the brief and endeavoring to respond to the legal arguments. Were it within our
purview to do so, we would order Brazier’s counsel to verify to this court her attendance at a continuing legal
education program regarding appellate practice before submitting any further briefs to this court. Although it
would be within our purview to order counsel to show cause why she should not be held in contempt for
willful violation of this court’s order granting leave to amend the brief to correct technical errors only and
specifically prohibiting any substantive changes, counsel does not appear to frequently represent clients on
appeal nor has she been previously cited for poor briefing practices. Therefore, we have chosen not to take
such extreme measures at this juncture. Nonetheless, we admonish counsel in the strongest possible terms to
carefully review the appellate rules and fully conform her briefs to their requirements in the future.
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II. Motion for Summary Judgment
[19] When reviewing a trial court’s ruling on summary judgment, we apply the same
standard as the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013).
Summary judgment is appropriate where there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Ind. Trial
Rule 56(C). The initial burden is on the movant to demonstrate the absence of
a genuine issue of fact as to a determinative issue. Hughley v. State, 15 N.E.3d
1000, 1003 (Ind. 2014). If the movant meets that burden, the burden shifts to
the non-movant to come forward with contrary evidence showing an issue to be
decided by the trier of fact. Id.
[20] Our review is limited to facts designated to the trial court. Meredith v. Pence, 984
N.E.2d 1213, 1218 (Ind. 2013). All factual inferences are made in favor of the
non-moving party, and we resolve all doubts as to the existence of an issue of
material fact against the moving party. Manley, 992 N.E.2d at 673. The
appellant has the burden of demonstrating that the summary judgment ruling
was erroneous. Amaya v. Brater, 981 N.E.2d 1235, 1239 (Ind. Ct. App. 2013),
trans. denied.
[21] The trial court denied Brazier’s motion for partial summary judgment upon
finding Brazier failed to meet his burden of showing the absence of a genuine
issue of material fact. Brazier contends the trial court erred in denying his
motion for summary judgment because the trial court did not treat Maple
Lane’s answer as a judicial admission that he was asked to perform the
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contested work, did perform the contested work, and that the invoices attached
to his complaint were accurate and the amounts reflected therein were owed.
[22] A judicial admission “is an admission in a current pleading or made during the
course of trial; it is conclusive upon the party making it and relieves the
opposing party of the duty to present evidence on that issue.” Weinberger v.
Boyer, 956 N.E.2d 1095, 1105 (Ind. Ct. App. 2011), trans. denied. “Statements
contained in a party’s pleadings may be taken as true as against the party
without further controversy or proof.” Lutz v. Erie Ins. Exch., 848 N.E.2d 675,
678 (Ind. 2006). “Opposing parties prepare their case on the assumption that
facts admitted by other parties require no proof. For this scheme to work
properly, parties must be entitled to rely on trial courts to treat admissions in
pleadings as binding on the party making the admission.” Id.
[23] Brazier’s complaint—followed by Maple Lane’s corresponding answer—
alleged, in pertinent part:
[Complaint ¶] 4. Although [Maple Lane] has engaged [Brazier]
to provide work, labor, and material to [Maple Lane] at [Maple
Lane’s] Real Estate for a number of years, [Maple Lane]
contracted for [Brazier] to provide work, labor, and material to
[Maple Lane] at [Maple Lane’s] Real Estate from June 2009 to
April 2010. A summary and copy of [Brazier’s] unpaid invoices
are attached as group Exhibit A.
[Answer ¶] 4. [Maple Lane] admits the allegation set forth in
Rhetorical Paragraph 4 of [Brazier’s] Complaint; that it
contracted with [Brazier] for work, labor and materials to be
performed at [Maple Lane’s] real estate from June, 2009 to April,
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2010; but denies the allegation set forth in Rhetorical Paragraph 4
of [Brazier’s] Complaint that the invoices attached as group
Exhibit A are unpaid.
[Complaint ¶] 5. [Brazier] performed the contracted work,
provided the contracted labor, and provided the contracted
materials at [Maple Lane’s] Real Estate.
[Answer ¶] 5. [Maple Lane] admits the allegations contained in
Rhetorical Paragraph 5 of [Brazier’s] Complaint.
[Complaint ¶] 6. [Brazier] delivered [Brazier’s] subject invoices
to [Maple Lane] on or about the dates specified on each invoice.
[Answer ¶] 6. [Maple Lane] admits the allegations contained in
Rhetorical Paragraph 6 of [Brazier’s] Complaint.
[Complaint ¶] 7. [Maple Lane] has failed to pay [Brazier’s]
invoices in full.
[Answer ¶] 7. [Maple Lane] denies the allegations contained in
Rhetorical Paragraph 7 of [Brazier’s] Complaint.
[Complaint ¶] 8. The delinquent balance due and owing by
[Maple Lane] to [Brazier] is $63,995.00 as of April 2010.
[Answer ¶] 8. [Maple Lane] denies the allegations contained in
Rhetorical Paragraph 8 of [Brazier’s] Complaint.
[Complaint ¶] 9. [Brazier] has demanded payment for the subject
invoices and delinquent balance due from [Maple Lane] on
several occasions, but [Maple Lane] has failed and/or refused to
pay.
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[Answer ¶] 9. [Maple Lane] admits the allegations contained in
Rhetorical Paragraph 9 of [Brazier’s] Complaint and states that
the invoices attached as group Exhibit A have been double billed.
Appellant’s App. at 27-28 (Complaint), 62-63 (Answer).
[24] Brazier reads Maple Lane’s answer to paragraphs 4 and 5 of his complaint to
admit that Maple Lane contracted with Brazier to provide the work, labor, and
material for the Bay Window Project and that he in fact performed the Bay
Window Project. However, the complaint did not specifically allege Maple
Lane contracted with Brazier to perform the Bay Window Project nor that
Brazier performed the Bay Window Project. The complaint only alleges Maple
Lane contracted with Brazier to perform work from June 2009 to April 2010 and
that he did in fact perform the contracted work. The invoices attached to the
complaint are not all for the Bay Window Project. There are also invoices for
painting apartment interiors, cleaning gutters, and the Clubhouse Project. That
Maple Lane admits it contracted with Brazier to perform work during those
dates does not necessarily mean that it admits it contracted with Brazier to
perform the Bay Window Project. Likewise, that Maple Lane admits Brazier
performed the contracted work does not necessarily mean that it admits he
performed the Bay Window Project. Thus, we agree with the trial court that
Maple Lane’s answer does not constitute a judicial admission that Brazier was
hired to and did in fact perform the Bay Window Project.
[25] As for the invoices, Brazier contends Maple Lane’s answer is a judicial
admission that “the invoices were valid, approved, and that [Maple Lane] was
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liable for the subject invoices if they had not been paid.” Appellant’s Brief at
23. We, like the trial court, do not read Maple Lane’s answer to judicially
admit any such thing. Maple Lane admitted Brazier delivered invoices to it and
demanded payment for what he believed the delinquent balance to be.
However, Maple Lane denied that it has failed to pay Brazier in full for the
work he performed at its request and that there is a delinquent balance in excess
of $63,000. In short, as the trial court noted, Maple Lane’s answer may be
“inartfully drafted,” Appellant’s App. at 9, but under no reasonable reading of
Maple Lane’s answer—as a whole—can we say it operates as a judicial
admission that all of the attached invoices represent work that was requested,
performed, and approved for payment as billed.
[26] Brazier designated as evidence in support of his motion for summary judgment
his complaint, Maple Lane’s answer, and his counsel’s affidavit of attorney fees.
Given that Maple Lane’s answer does not constitute a judicial admission that
Brazier has met the elements of his claim, this evidence does not demonstrate
the absence of a genuine issue of material fact as to the determinative issues of
whether Brazier was asked to perform and did actually perform the Bay
Window Project at the rate billed. Further, as the trial court noted, the invoices
themselves raise questions of fact, given the irregularity of ninety-nine invoices
all dated the same day and appearing to be reproductions of a single invoice.5
5
There actually appear to be two invoices – one billing $525 that is reproduced 75 times, Appellant’s App. at
36-55, and one billing $550 (adding an additional $25 charge for painting the door of the building) that is
reproduced 24 times, id. at 55-61.
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Finally, Maple Lane’s designated evidence in opposition to summary judgment
directly contradicts Brazier’s contentions on the dispositive issue: Papaj’s
affidavit states that “[b]ased upon [her] observation of the buildings and the
activities of [Brazier’s] on-site employee, [Brazier] did not paint the bay
windows and trim on the [sic] all the remaining 93 apartment buildings at
Maple Lane Apartments.” Id. at 90.6 Brazier has failed to demonstrate that the
trial court’s denial of his motion for summary judgment was erroneous.
III. Admission of Evidence
[27] The trial court declined to admit into evidence the approximately 100 invoices
Brazier represented were “copies” of the invoices he submitted to Maple Lane
for the Bay Window Project. These invoices represent the bulk of the work for
which Brazier contends Maple Lane failed to pay him. Papaj testified that
Brazier had indeed brought a stack of invoices to her for work he allegedly did
on the windows of every building in the complex. However, it became clear
during the course of trial that the invoices attached to the complaint and offered
for admission at trial were not copies of those invoices Brazier had delivered to
Maple Lane but were in fact created after his services were terminated, in
anticipation of litigation, with the knowledge and assistance of his attorney.
Brazier contends the trial court erred in denying admission of the invoices.
6
Brazier contends it was erroneous to consider this statement because no evidence may be considered which
contradicts a judicial admission. Because there was no judicial admission, this statement was properly
considered on summary judgment.
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[28] We review the trial court’s decision regarding admission of evidence for an
abuse of discretion. Weinberger, 956 N.E.2d at 1104. The trial court abuses its
discretion only when its decision is clearly against the logic and effect of the
facts and circumstances before it. Johnson v. Wait, 947 N.E.2d 951, 962 (Ind.
Ct. App. 2011), trans. denied. Even when the trial court erred in its ruling on the
admissibility of evidence, we will reverse only if the error is inconsistent with
substantial justice. Weinberger, 956 N.E.2d at 1104.
[29] As the trial court noted during the trial, “in a case for payment on – for services
rendered pursuant to an agreement, allegedly, with respect to the same, the
existence of invoices is not an element – necessary element. . . . And since I
believe the invoices, whatever their nature, are not an essential element, it does
not obviate the claim or negate the claim if it’s proven otherwise.” Tr. at 483-
84. Thus, even if the trial court erred in denying admission of the invoices, the
ruling is not inconsistent with substantial justice. As Brazier testified at length
about the Bay Window Project, he was still given the opportunity to prove his
claim.7 Therefore, the trial court did not abuse its discretion in denying
admission of the invoices themselves, especially considering the questionable
provenance and import of the invoices.
7
Apparently, some of Brazier’s workers also testified about the Bay Window Project, but their testimony was
not transcribed.
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IV. Judgment for Maple Lane
[30] The trial court entered findings of fact and conclusions thereon pursuant to
Trial Rule 52(A) at the request of the parties. When a party requests findings of
fact, we apply a two-step review. In re Moeder, 27 N.E.3d 1089, 1097 (Ind. Ct.
App. 2015), trans. denied. First, we consider whether the evidence supports the
findings, and second, whether the findings support the judgment. Id. We do
not reweigh the evidence or assess witness credibility, and we consider only the
evidence most favorable to the judgment. Id. We will set aside the trial court’s
findings and conclusions only if they are clearly erroneous; that is, if the record
contains no facts or inferences supporting them. Id. at 1097-98.
[31] Our review of the record supports the trial court’s finding that this was
essentially a “he said, she said” controversy between Brazier and Papaj
regarding what Brazier was asked to do and what he actually did at the
complex. The trial court credited Papaj’s testimony over Brazier’s, and we will
defer to that determination. Viewing the trial court’s findings of fact through
the lens of the trial court’s credibility determinations, the evidence supports the
trial court’s findings and judgment.
[32] The trial court concluded “Brazier cannot recover under a theory of contractual
liability or quantum meruit as he has not shown by a preponderance of the
evidence that he has performed work, including the Bay Window Project, for
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which he has not been compensated.” Appellant’s App. at 22. 8 The essential
elements of a breach of contract claim are the existence of a contract, the
defendant’s breach, and damages to the plaintiff as a result. Old Nat’l Bank v.
Kelly, 31 N.E.3d 522, 531 (Ind. Ct. App. 2015), trans. denied. There seems to be
no dispute that Brazier never had an express written contract with Maple Lane
for any of the work he performed at the complex; rather, he performed work as
agreed between himself and Papaj acting on behalf of Maple Lane. Crediting
Papaj’s testimony that she did not ask Brazier to paint the windows and trim on
all 100 buildings in the complex, there was no agreement between Brazier and
Maple Lane for Brazier to perform the Bay Window Project, and therefore no
contract for Maple Lane to breach.
[33] As for a quantum meruit claim, there must be proof the plaintiff conferred a
benefit upon the defendant at the express or implied request of the defendant,
allowing the defendant to retain that benefit without restitution would be
unjust, and the plaintiff expected payment. Woodruff v. Ind. Family & Soc. Servs.
8
Brazier’s complaint and, as the trial court noted, “belabored, disorganized presentation of his case” at trial,
Appellant’s App. at 19, leaves us without a clear understanding of the theory under which he was seeking
recovery. At trial, it appears Brazier was proceeding under the theory of quantum meruit, as when Maple
Lane moved to dismiss at the conclusion of Brazier’s case-in-chief, Brazier’s counsel stated, “I believe that
Plaintiff has met its burden of proof in all counts, unjust enrichment, the invoices the 2009 [sic]. I think that
he’s proven all of the elements of unjust enrichment, detrimental reliance.” Tr. at 754. In his brief, however,
Brazier almost exclusively argues he was claiming an account stated and due. The trial court did not address
an account stated theory in its judgment. “An account stated is an agreement between the parties that all
items of an account and balance are correct, together with a promise, expressed or implied, to pay the
balance.” Jackson v. Trancik, 953 N.E.2d 1087, 1091 (Ind. Ct. App. 2011). An account stated arises only
when each party to the transaction views the account as a final adjustment of the respective demands
between them. MHC Surgical Ctr. Assocs., Inc. v. State Office of Medicaid Policy & Planning, 699 N.E.2d 306, 310
(Ind. Ct. App. 1998). Because Maple Lane immediately disputed not only the amount of the invoices, but
also that Brazier had performed the work reflected by the invoices, there are no admittedly valid claims on
which to establish an account stated in this case.
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Admin., 964 N.E.2d 784, 791 (Ind. 2012), cert. denied, 133 S. Ct. 233 (2012).
Again, crediting Papaj’s testimony, Brazier failed to prove he conferred a
benefit upon Maple Lane at Maple Lane’s express or implied request. Papaj
testified she never asked Brazier to perform the Bay Window Project and
further testified Brazier did not in fact do that work. Although it is undisputed
Brazier was asked to, and did, perform the Clubhouse Project, the evidence does
not clearly support Brazier’s claim that he was not paid for that work. The trial
court’s judgment is not clearly erroneous.9
V. Motion for Sanctions
[34] Finally, Brazier’s counsel challenges the sanctions the trial court imposed upon
her for discovery violations relating to the invoices. The trial court’s order
states:
Reduced photocopy invoices were attached as Exhibit A to the
Verified Complaint. At trial, [Brazier’s] counsel attempted to
introduce the invoices themselves. The invoices were not
admitted into evidence after the surprising and wholly
unanticipated testimony by [Brazier] that the invoices he sought
to introduce, which he and counsel repeatedly characterized as
9
Brazier contends the trial court erred in failing to grant his motion to reconsider and motion to correct error.
A motion to reconsider is a prejudgment motion; after final judgment, a motion to correct error is
appropriate. Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998). Regardless of how Brazier
styled his motion, it raises issues already discussed in this opinion regarding Maple Lane’s alleged judicial
admissions, admission of the invoices, and evidence supporting the judgment. Having found no error with
respect to those issues, we need not discuss them further. To the extent the motion attempts to present
“newly discovered evidence” in the form of affidavits from Brazier and Fox regarding the creation of the
invoices prior to filing suit, there is no indication any of that information “could not have been discovered
and produced at trial . . . .” Trial Rule 59(A)(1). The motion also raises an issue regarding the trial court’s
ruling on Maple Lane’s motion for sanctions, which remained under advisement at the time this motion was
filed. We will address the motion for sanctions separately.
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“copies” of the invoices he had submitted to [Maple Lane], were,
in fact, created by [Brazier] for purposes of this litigation after
meetings with counsel. This testimony was so astonishing given
the vehemence with which [Brazier’s] counsel has continued to
argue that the Court erred in not determining that [Maple Lane]
had made a “judicial admission” of the authenticity of the
invoices, that the Court, and likely [Maple Lane’s] counsel,
wholly expected [Brazier’s] counsel to correct [Brazier’s]
testimony. Counsel did no such thing . . . .
***
[Brazier] needlessly based his trial strategy on documents and
then failed to disclose the true nature of those documents to
[Maple Lane], impacting the manner in which [Maple Lane]
would likely respond to [Brazier’s] Motion for (Partial) Summary
Judgment, and depriving [Maple Lane] of the opportunity to the
full and complete disclosure it sought through the discovery
process.
[Brazier’s] counsel is sanctioned in the sum of $5,000.00 . . . .
Appellant’s App. at 25-26.
[35] Maple Lane filed a motion to compel discovery and for sanctions under Trial
Rule 37 and also requested sanctions pursuant to Trial Rule 11 in its
memorandum following the trial court’s final judgment. It is unclear on which
basis the trial court ordered sanctions, and Brazier does not present a reasoned
argument for why such sanctions were inappropriate, instead simply stating the
request for sanctions “is wholly unwarranted, without legal support, factual
support, cause, or merit and they are not warranted or reasonable.” Corrected
Br. of Appellant at 42. We note that, despite Maple Lane’s outstanding motion
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to compel discovery, there was no corresponding order entered compelling
discovery at any time during this litigation.10 By the time Maple Lane brought
this to the trial court’s attention, the trial had already been underway for three
days. See Tr. at 401. Therefore, the imposition of Trial Rule 37 sanctions
would be inappropriate. See Ind. Trial Rule 37(B)(2) (“If a party . . . fails to obey
an order to provide or permit discovery, . . . the court in which the action is
pending may make such orders in regard to the failure as are just . . . .”)
(emphasis added).
[36] Trial Rule 11(A) requires every pleading or motion filed by a party represented
by an attorney to be signed by the attorney, constituting “a certificate by him
that he has read the pleadings; that to the best of his knowledge, information,
10
Maple Lane’s motion to compel and for sanctions was file-stamped by the trial court on September 4,
2012. Appellant’s App. at 441. Although file-stamped, this motion is not reflected in the trial court’s
chronological case summary (“CCS”). Id. at 2. On September 5, 2012, Brazier’s counsel filed the following
CCS entry:
[Brazier], by counsel, notifies the Court that [Maple Lane’s] counsel advised [Brazier’s] counsel
via telephone today that [Maple Lane’s] counsel will be notifying the Court that, in violation of
the Indiana Trial Rules and St. Joseph County Local Rules, [Maple Lane’s] counsel failed to
notify [Brazier’s] counsel by any form of communication of any discovery issues with [Brazier’s]
May 2012 answers and responses [to discovery] or [Brazier’s] June 2012 answers and responses
prior to filing [Maple Lane’s] August 31, 2012 Motion to Compel requesting sanctions and that
[Maple Lane’s] counsel would report to the Court that she has already received [Brazier’s]
supplemental discovery that is the subject of [Maple Lane’s] August 31, 2012 Motion to
Compel.
Id. at 528. This entry is not reflected in the CCS, nor is any subsequent notice from Maple Lane to this effect.
What is reflected in the CCS is that Brazier “files proposed order on motion to compel discovery and
sanctions. Order files [sic] unsigned Parties have resolved these issued [sic].” Id. at 2. The trial court stated
in its order imposing sanctions that a hearing had been scheduled on the motion to compel and for sanctions
but was vacated and not reset. Id. at 26.
Regardless of what actually happened—and on this record, it would be pure speculation to try to ascertain—
the relevant fact is that Maple Lane did nothing to move its motion to compel forward until it filed a
supplement to its motion in the midst of trial, and no order was ever entered compelling Brazier to
supplement his discovery responses.
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and belief, there is good ground to support it; and that it is not interposed for
delay.” The trial court has discretion to impose sanctions under Trial Rule 11
where it determines that a verified pleading or motion contains information the
attorney knows to be false. Zwiebel v. Zwiebel, 689 N.E.2d 746, 750 (Ind. Ct.
App. 1997) (basing the trial court’s discretion to impose sanctions on the
provision that an attorney may be subjected to appropriate disciplinary action
for a willful violation of the rule), trans. denied. Both Maple Lane and the trial
court focus on the representation from the filing of the complaint through
several days of trial that the invoices attached to Brazier’s complaint were
“copies” of the originals submitted to Maple Lane. They also note Brazier’s
insistence throughout this litigation that not only were the “copies” authentic,
but Maple Lane had judicially admitted they were authentic and owed. In fact,
the invoices were created out of whole cloth after Brazier met with his attorney
in preparation for filing this lawsuit; the reliability of those invoices as proof of
anything is therefore suspect. Brazier’s counsel signed numerous pleadings and
motions asserting the authenticity of the invoices as copies, and we conclude
the evidence demonstrates Brazier’s counsel knowingly mispresented and/or
failed to correct any misrepresentation regarding the nature of those invoices
from the day this litigation was initiated. As such, the trial court did not abuse
its discretion in ordering her to pay a small percentage of Maple Lane’s attorney
fees generated by this litigation.
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Conclusion
[37] The trial court did not err in denying Brazier’s motion for summary judgment
or in its evidentiary rulings at trial. Further, the trial court’s judgment is not
clearly erroneous, and the trial court did not abuse its discretion in imposing
sanctions against Brazier’s counsel for mispresenting the nature of the
documents on which Brazier based his entire case. The judgment of the trial
court is affirmed.
[38] Affirmed.
May, J., and Mathias, J., concur.
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