Robby J. Johnson, Cherie M. Johnson, and Geraldine Schweikhart, Appellants-Plaintiffs, v. Jacquelyn K. Schweikhart and Fifth Third Bank Southern Indiana, Appellees-Defendants (2023)

MEMORANDUM DECISION

Crone, Judge.

Case Summary

[1] Robby J. Johnson, Cherie M. Johnson (together the Johnsons), and Geraldine Schweikhart (collectively Appellants) appeal the trial court's order granting summary judgment in favor of Jacquelyn K. Schweikhart and Fifth Third Bank Southern Indiana on Appellants’ quiet title, unjust enrichment, trespass, and slander of title claims.¹ Appellants assert that the trial court erred in granting Jacquelyn summary judgment because genuine issues of material fact exist as to whether their claims were filed within the applicable statutory limitation periods. Concluding that there are no genuine issues of material fact and that Jacquelyn is entitled to judgment as a matter of law, we affirm.

Facts and Procedural History

[2] The evidence designated in the proceedings below, consisting of Appellants’ verified complaint and the attached deeds and Robby's affidavit, establish the following facts. The Johnsons are married, and Geraldine is Cherie's mother. Geraldine also had a son, Steven R. Schweikhart, now deceased, and Jacquelyn is his widow. In 1989, J.A. Johnson and Betty Jean Johnson conveyed by warranty deed (the 1989 Deed) approximately twenty-five acres in Posey County (the Primary Property) to the Johnsons. The deed was recorded on July 5, 1989, and directs that tax statements be mailed to the Johnsons’ residence at 5420 Haines Road, Wadesville. In exchange for Geraldine providing funds for the down payment on the Primary Property, six acres of the property were to be set off and deeded to her and another six acres were to be set off and deeded to Steven, who was obligated to obtain his own access to his six acres instead of passing over the real estate owned by the Johnsons (the Oral Agreement). No written memorandum of the Oral Agreement was attached to the complaint.

[3] The parties’ dispute focuses on two subsequent deeds. The first is a two-page warranty deed executed and recorded in July 1992 (the 1992 Deed) that appears to be signed by the Johnsons as grantors and conveys to Steven approximately thirteen acres (the Disputed Property) of the Primary Property and a ten-foot-wide easement for ingress and egress. The 1992 Deed identifies the street address of the thirteen acres conveyed to Steven as 5400 Haines Road, Wadesville. Steven lived on the Disputed Property and used the easement. A correction warranty deed dated and recorded in March 1993 (the 1993 Deed) corrects the description of the property contained in the 1992 Deed and appears to be signed by the Johnsons. Each deed was notarized by the same notary public, who was deceased by the time Appellants initiated this action.

[4] Robby did not sign either the 1992 or 1993 Deeds, and the signature that purports to be his is not authentic and is forged. Cherie's signatures are authentic, but

[Cherie] had been presented with document(s) to sign by [Steven] who ․ abus[ed] his position of trust as her brother and [exploited] her vulnerable emotional state at the time and misrepresent[ed] the contents as a mere formality to protect his right of access to his six (6) acres [and] induced Cherie to sign the document[s] without reading them and outside the presence of the notary who purported to acknowledge her signature.

Appellants’ App. Vol. 2 at 11. In addition,

[the] Johnsons did not know, or have any reason in the exercise of due diligence to know of the forgery until recently because [Robby] worked out of state a great deal, the parties were on good terms, nothing occurred to have given reason for [the] Johnsons to know or suspect the creation or recording of [the 1992 and 1993 Deeds] and occupation of a portion of the real estate by [Steven and Jacquelyn] would have been normal and expected under the arrangement [between the Johnsons and Geraldine].

Id. at 11-12.

[5] The fourth deed of interest is a quitclaim deed dated and recorded in February 2014 (the 2014 Deed) by which Steven conveyed the Disputed Property to Jacquelyn and himself as husband and wife.

[6] In 2019, Robby encountered Steven and a surveyor putting survey markers in the Johnsons’ driveway, and thereafter Jacquelyn and her daughter prevented anyone from talking to Steven to find out what he and the surveyor were doing in the Johnsons’ driveway. In early 2020, Steven approached Robby and “acknowledged there was a problem with the properties and promised he'd ‘make things right.’ ” Id. at 41. Several weeks after this conversation, in April 2020, Steven died. Cherie and Geraldine “were unaware of these circumstances and had no reason to make inquiry about them prior to 2019.” Id. Despite repeated demands, neither Steven nor Jacquelyn cooperated in Geraldine obtaining the six acres to which she is entitled under the Oral Agreement.

[7] On April 7, 2021, Appellants filed a verified complaint against Jacquelyn as Steven's successor in interest to quiet title and for unjust enrichment, trespass, and slander of title. Appellants attached all four of the abovementioned deeds. They asked that the 1992, 1993, and 2014 Deeds be voided and set aside, or in the alternative, reformed to convey six acres to Steven's successor and six acres to Geraldine pursuant to the Oral Agreement.

[8] On June 25, 2021, Jacquelyn filed a motion to dismiss Appellants’ complaint pursuant to Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief may be granted, in which she asserted that Appellants’ claims were barred by the applicable statute of limitations. Appellants filed a response arguing that based on the discovery rule, they did not know or have reason to know of the circumstances set forth in their complaint until 2019 at the earliest, and therefore their claims were not time-barred. They also argued that the trespass claim was for a continuing trespass claim causing harm, which triggers a new limitations period each time it occurs. Appellants attached an affidavit from Robby to their response.

[9] On July 29, 2021, the trial court held a hearing on the motion to dismiss. When questioned by the trial court, Appellants’ counsel conceded that the Oral Agreement was a verbal agreement that was never reduced to writing, there was no legal description of the property that was supposed to be set aside to Geraldine or to Steven, and no deed was ever executed to convey any property to Geraldine. Appellants’ counsel also stated that he did not believe that Geraldine ever took possession or control of the property that was supposed to be set aside to her, but he claimed that Geraldine “fronted the money” for the purchase of the Primary Property. Tr. Vol. 2 at 19. The parties stipulated that Robby's affidavit would be made part of the record and considered for purposes of the motion to dismiss. The trial court informed the parties that when materials outside the pleadings are considered, a Trial Rule 12(B)(6) motion is to be treated as a summary judgment motion, and the court offered the parties an opportunity to present any additional materials appropriate for such a motion. Neither party expressed a desire to supplement the record. The trial court then ordered the parties to file additional briefs on the statutes of limitations and the discovery rule and permitted the filing of response briefs.

[10] On November 1, 2022, the trial court held a final hearing. After hearing argument, the trial court issued an order disposing of the motion to dismiss as a motion for summary judgment and entered summary judgment in favor of Jacquelyn. This appeal followed.

Discussion and Decision

[11] Our summary judgment standard of review is well established:

We review a summary judgment ruling de novo, applying the same standard as the trial court. The moving party bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Summary judgment is improper if the moving party fails to carry its burden, but if it succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. We construe all factual inferences in favor of the nonmoving party and resolve all doubts as to the existence of a material issue against the moving party. Our review is limited to those facts designated to the trial court.

Hopkins v. Indpls. Pub. Schs., 183 N.E.3d 308, 312 (Ind. Ct. App. 2022) (quoting Ind. Univ. v. Thomas, 167 N.E.3d 724, 731 (Ind. Ct. App. 2021)), trans. denied. “A reviewing court will affirm a grant of summary judgment on any legal basis which is supported by the designated evidentiary matter found in the record.” Landmark Health Care Assocs. L.P.-1989-A v. Bradbury, 671 N.E.2d 113, 116 (Ind. 1996).

[12] Appellants contend that summary judgment is improper because genuine issues of material fact exist as to whether their claims are barred by the applicable statutes of limitations. We observe that “the general purpose of a statute of limitation is to encourage the prompt presentation of claims. Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles.” Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind. Ct. App. 2006) (citations omitted). “Statutes of limitation ‘are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.’ ” Chmiel v. US Bank Nat'l Ass'n, 109 N.E.3d 398, 408 (Ind. Ct. App. 2018) (quoting Mizen v. State ex rel. Zoeller, 72 N.E.3d 458, 465 (Ind. Ct. App. 2017), trans. denied.). “Notably, a statute of limitations defense is a proper consideration on summary judgment.” Id. (citing Mizen, 72 N.E.3d at 465). “If the undisputed facts establish ‘that the complaint was filed after the running of the applicable statute of limitations, the trial court must enter judgment for the defendant.’ ” Id. (quoting Mizen, 72 N.E.3d at 466).

[13] Appellants do not identify the applicable statutes of limitations. The statute of limitations for a quiet title action is ten years. See id. at 408-09 (holding that residual ten-year statute of limitation under Ind. Code § 34-11-2-11 applies to quiet title actions). The remaining claims appear to be governed by a six-year statute of limitations. See Ind. Code § 34-11-2-7 (requiring that actions for injuries to property other than personal property and actions for relief against frauds be commenced within six years after the cause of action accrues). We note that all the conduct that gave rise to Appellants’ claims occurred in 1989, when the Primary Property was conveyed to the Johnsons and the Oral Agreement was made, and in 1992 and 1993, when the deeds conveying the Disputed Property to Steven were executed and recorded and he began living on the property and using the easement. Appellants’ verified complaint was filed on April 7, 2021, twenty-eight years after the 1993 Deed was recorded.

[14] Appellants argue that under Indiana's discovery rule, the statutes of limitations did not begin to run until 2019, when Robby encountered Steven and a surveyor placing survey markers on the Johnsons’ driveway. “The discovery rule presents a limited exception to the requirement that a party must file suit within the statutory period.” Perryman, 846 N.E.2d at 689. “Under Indiana's discovery rule, a cause of action accrues, and the statute of limitations begins to run, when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury has been sustained as a result of the tortious act of another.” Chmiel, 109 N.E.3d at 408.

Indiana courts have held that the discovery rule does not mandate that plaintiffs know with precision the legal injury that has been suffered, but merely anticipates that a plaintiff be possessed of sufficient information to cause him to inquire further in order to determine whether a legal wrong has occurred.․ As such, a plaintiff has a duty under the discovery rule to exercise reasonable diligence to discover the negligent acts or omissions. The exercise of reasonable diligence means simply that an injured party must act with some promptness where the acts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.

Bambi's Roofing, Inc. v. Moriarty, 859 N.E.2d 347, 356 (Ind. Ct. App. 2006) (citations and footnote omitted).

[15] As noted, Steven took possession of the Disputed Property and began living on it in 1992. Cherie signed the 1992 and 1993 Deeds conveying the Disputed Property and a ten-foot-wide easement to Steven. Nevertheless, Appellants claim that they did not know or have reason to know of the alleged injury until 2019 because Robby “worked out of state a great deal, the parties were on good terms,” the Johnsons had no reason to know or suspect the creation or recording of the Deeds, and Steven and Jacquelyn's occupation of part of the property would have been normal and was expected under the Oral Agreement. Appellants’ App. Vol. 2 at 11.

[16] Regarding Appellants’ knowledge of the creation or recording of the Deeds, Cherie signed them. In Indiana, a person is “presumed to understand the documents which he [or she] signs and cannot be released from the terms of a contract due to his [or her] failure to read it.” Shoaff v. First Merchs. Bank, 201 N.E.3d 646, 656 (Ind. Ct. App. 2022) (quoting Clanton v. United Skates of Am., 686 N.E.2d 896, 899-900 (Ind. Ct. App. 1997)). To justify why Cherie's signing of the Deeds did not alert Appellants to the existence of their claims, Appellants assert that the doctrine of fraudulent concealment applies to toll the statute of limitations.

[17] “Under the doctrine of fraudulent concealment, a person is estopped from asserting the statute of limitations as a defense if that person, ‘by deception or violation of a duty, has concealed material facts from the plaintiff thereby preventing discovery of a wrong.’ ” Mann v. Arnos, 186 N.E.3d 105, 116 (Ind. Ct. App. 2022) (quoting Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995)), trans. denied. Fraudulent concealment may be active or passive. Lyons v. Richmond Cmty. Sch. Corp., 19 N.E.3d 254, 260 (Ind. 2014). “The fraud may be active because there is some affirmative effort to conceal the cause of action, or the fraud may be passive because of the existence of an affirmative duty to disclose material information resulting from the fiduciary or confidential relationship.” Carrow v. Streeter, 410 N.E.2d 1369, 1374 (Ind. Ct. App. 1980).

[18] Here, Appellants contend that, based on Steven's close relationships to his mother and sister, passive fraudulent concealment applies.² Passive fraudulent concealment requires (1) a relationship between the parties such that the defendant has a duty to disclose the alleged wrongful act to the plaintiff and (2) a breach of that duty. Lyons, 19 N.E.3d at 261. Appellants assert that in Indiana “various legal and domestic relationships raise a presumption of confidence and trust as to the subordinate party on the one hand and a corresponding influence as to the dominant party on the other.” Appellants’ Br. at 15 (citing Lucas v. Frazee, 471 N.E.2d 1163, 1166-67 (Ind. Ct. App. 1984)). “These relationships include that of attorney and client, guardian and ward, principal and agent, pastor and parishioner, husband and wife, parent and child, and there may be others.” Lucas, 471 N.E.2d at 1166-67.

In such cases, if the plaintiff's evidence establishes (a) the existence of such a relationship, and (b) the questioned transaction between those parties resulted in an advantage to the dominant person in whom trust and confidence was reposed by the subordinate, the law imposes a presumption that the transaction was the result of undue influence exerted by the dominant party, constructively fraudulent, and thus void.

Id. at 1167.

[19] As for Geraldine, Appellants assert that the designated evidence shows that she is Steven's mother, she provided the down payment for the Primary Property, and she was to receive six acres of it, and that this is sufficient to establish a genuine issue of material fact as to whether Steven “had a relationship of trust and confidence with [Geraldine and] that he abused that position and breached his obligation to provide material information to her.” Appellants’ Br. at 15-16. We disagree. “With respect to parent-child relationships, the parent generally is considered the dominant party.” Scribner v. Gibbs, 953 N.E.2d 475, 484 (Ind. Ct. App. 2011); see also In re Rhoades, 993 N.E.2d 291, 301, n.8 (Ind. Ct. App. 2013) (“In a parent-child relationship, the parent is generally the dominant party, but a child may be determined to be the dominant party by virtue of being a caretaker for the parent.”); Folsom v. Buttolph, 82 Ind. App. 283, 143 N.E. 258, 263 (1924) (“In the relation of parent and child the parent is assumed to be the dominant party, and, where one seeks to show that the child is the dominant party, he must do so by showing that the condition and situation of the parties, their treatment of each other, and other circumstances from which such ultimate fact may be inferred.”). Here, the mere existence of Geraldine and Steven's relationship as parent and child and the fact that she was to receive six acres of the Primary Property are insufficient to create a genuine issue of material fact regarding the existence of a confidential relationship where Steven was the dominant person and Geraldine was the subordinate person. See Scribner, 953 N.E.2d at 484 (concluding that appellants failed to designate evidence that there was a confidential relationship as a matter of law between father and son that would make son the dominant party).

[20] As for Cherie, Appellants claim that the designated evidence shows that Steven presented Cherie “with document(s) to sign” and induced her to sign the documents without reading them and outside the presence of the notary by “abusing his position of trust as her brother, exploiting her vulnerable emotional state at the time and misrepresenting the contents as a mere formality to protect his right of access to his six (6) acres.” Appellants’ App. Vol. 2 at 11. We note that the mere existence of a family relationship is insufficient to raise a presumption of a confidential relationship. Matter of Est. of Neu, 588 N.E.2d 567, 570 (Ind. Ct. App. 1992). See also Reiss v. Reiss, 516 N.E.2d 7, 8 (Ind. 1987) (explaining that the law does not raise “a presumption of influence upon the subordinate party by the dominant party” when the parties are siblings); Lucas, 471 N.E.2d at 1166 (concluding that sibling relationship did not in and of itself make sister a fiduciary to other sister, so as to per se raise a presumption of undue influence). The evidence that Cherie was in a “vulnerable emotional state at the time” is insufficient to establish a fiduciary or confidential relationship between Steven and Cherie regarding the division of the Primary Property pursuant to the Oral Agreement. But see Dotlich v. Dotlich, 475 N.E.2d 331, 341 (Ind. Ct. App. 1985) (concluding that shareholder of a corporation had a fiduciary or confidential relationship with his brothers who were also shareholders such that fraudulent concealment applied), abrogated on other grounds by State Bd. of Tax Comm'rs v. Town of St. John, 751 N.E.2d 657 (Ind. 2001)); Donivan v. Tibbles, 78 Ind. App. 161, 135 N.E. 7, 9 (Ind. Ct. App. 1922) (concluding that sister held position of trust and confidence with her brother in the administration of their mother's estate where sister was in charge of estate and brother was a legatee).

[21] We conclude that no genuine issues of material fact exist and that Jacquelyn is entitled to judgment as a matter of law on Appellants’ claims because they were not brought within the applicable statutory limitation periods.³ Accordingly, we affirm.

[22] Affirmed.

FOOTNOTES

1.   Fifth Third Bank Southern Indiana was named as a defendant because Appellants believed that it might have a mortgage on the real estate that is the basis for the complaint. Fifth Third Bank did not file an appearance below or on appeal. However, we include it in the caption because a party of record in the trial court shall be a party on appeal. Ind. Appellate Rule 17(A).

2.   In their reply brief, Appellants argue for the first time that there was active fraudulent concealment. A party may not raise an issue for the first time in his or her reply brief. Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 (Ind. 2001); see also Ind. Appellate Rule 46(C) (“No new issues shall be raised in the reply brief.”). We further note that Appellants did not raise active fraudulent concealment below. See Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000) (stating that a party may not raise an issue for the first time on appeal). Accordingly, the active fraudulent concealment argument is waived.

3.   Appellants also claim in a three-sentence paragraph that their trespass claim is not barred because it is predicated on a continuing trespass. We find this argument waived for failure to present a cogent argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in appellant's brief be supported by cogent reasoning and citations to authorities, statutes, and the appendix or parts of the record on appeal relied on); Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (failure to present cogent argument waives issue for appellate review), trans. denied.

Memorandum Decision by Judge Crone

Judges Brown and Felix concur. Brown, J., and Felix, J., concur.