MIYO v. Aimee White, Appellee-Plaintiff/Counterclaim Defendant (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Aimee White sued Michaline Tomich and MIYO Inc. (collectively, “Defendants”) for their alleged breach of a promissory note. Defendants countersued for unjust enrichment. White filed a motion for summary judgment on both claims; Defendants then filed a motion to amend their counterclaim. The trial court granted White's motion for summary judgment, and it denied Defendants’ motion to amend. Defendants now appeal, raising two issues for our review:

1. Whether the trial court erred by granting summary judgment in favor of White on her breach of contract claim; and

2. Whether the trial court abused its discretion by denying Defendants’ motion for leave to amend their counterclaim.

[2] We affirm.

Facts and Procedural History

[3] This case involves three business entities—(1) MIYO, LLC; (2) MIYO Inc.; and (3) Mixdesign, Inc.—and at the heart of the parties’ dispute is the difference, if any, among all three entities, but especially between MIYO, LLC and MIYO Inc. On June 11, 2014, White and Tomich, in her purported capacity as a member of MIYO, LLC, executed a promissory note (the “Promissory Note”) pursuant to which White agreed to lend $80,000 to MIYO, LLC and MIYO, LLC agreed to repay that sum with interest on or before December 31, 2017. Thereafter, MIYO Inc. and Mixdesign, Inc. made some payments on the Promissory Note. Tomich is the president of both MIYO Inc. and Mixdesign, Inc.

[4] On July 9, 2020, White sued Defendants for breach of contract, alleging they had failed to pay pursuant to the terms of the Promissory Note. White also alleged that Tomich “was aware that MIYO, LLC, did not exist and she was signing on her own behalf and the funds were loaned for her personal benefit.” Appellants’ App. Vol. II at 37. In their answer, Defendants admitted that MIYO Inc. and Mixdesign, Inc. had made payments on the Promissory Note, but they denied that Tomich signed the Promissory Note on behalf of a nonexistent business entity. Defendants also asserted a counterclaim for unjust enrichment relating to a construction project Defendants allegedly completed at the property commonly known as 21 E. U.S. Hwy 30, Schererville, Indiana (the “Schererville Property”), of which Defendants alleged White was the owner. In her answer to the counterclaim, White denied owning the Schererville Property.

[5] On February 16, 2024, White filed a motion for summary judgment on both her breach of contract claim and Defendants’ unjust enrichment claim. Concerning her breach of contract claim, White argued that (1) the Promissory Note was a valid contract, (2) the Promissory Note was not repaid pursuant to its terms, and (3) Tomich disregarded corporate formalities such that she should be held personally liable for the breach of the Promissory Note. Concerning Defendants’ unjust enrichment claim, White argued in relevant part she did not own the Schererville Property. In support of her arguments, White designated the following materials: (1) the Promissory Note; (2) evidence of interest payments from MIYO Inc. in 2016 and Mixdesign, Inc. in 2019; (3) MIYO Inc.’s and Mixdesign, Inc.’s business information from the Indiana Secretary of State; (4) property records for the Schererville Property; (5) an affidavit from White; and (6) an affidavit of attorneys’ fees from White's counsel. Defendants filed a brief in opposition to White's motion for summary judgment, but they did not designate any evidence in support thereof.

[6] While White's motion for summary judgment was pending, Defendants filed a motion seeking leave to amend their counterclaim, namely to add “necessary and proper parties, given the property ownership,” Appellants’ App. Vol. II at 72. The trial court initially granted this motion on February 21, 2024, but later reversed course and denied it on January 13, 2025.

[7] On April 9, 2024, before the trial court resolved the motion to amend, it granted summary judgment in favor of White on all claims.¹ For her breach of contract claim, the trial court awarded White the Promissory Note's principal amount of $80,000.00, interest of $18,460.05, attorneys’ fees of $4,200.00, and the costs of the action—resulting in a total award of $102,660.05 plus costs. The trial court dismissed the unjust enrichment counterclaim.² Defendants now appeal the trial court's orders granting summary judgment and denying their motion for leave to amend.³

Discussion and Decision

1. The Trial Court Did Not Err by Awarding Summary Judgment in Favor of White on Her Breach of Contract Claim

[8] We review summary judgment decisions de novo, Gierek v. Anonymous 1, 250 N.E.3d 378, 384 (Ind. 2025) (citing Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)), which means we apply the same standard as the trial court, Wohlt v. Wohlt, 245 N.E.3d 611, 615 (Ind. 2024) (citing Red Lobster Rests. LLC v. Fricke, 234 N.E.3d 159, 165 (Ind. 2024)). Summary judgment is proper only “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Abbott v. State, 183 N.E.3d 1074, 1079 (Ind. 2022) (quoting Hughley, 15 N.E.3d at 1003).

[9] We consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the summary judgment motion. T.R. 56(C), (H). We resolve “[a]ll factual inferences and all doubts as to the existence of a material issue” in favor of the nonmovant. Zaragoza v. Wexford of Ind., LLC, 225 N.E.3d 146, 151 (Ind. 2024) (internal quotation marks omitted) (quoting Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012)). In so doing, “we give careful scrutiny to make sure the nonmovant's day in court is not improperly denied.” Id. (internal quotation marks omitted) (quoting Siner v. Kindred Hosp. Ltd. P'ship, 51 N.E.3d 1184, 1187 (Ind. 2016)).

[10] “The party moving for summary judgment 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.” Abbott, 183 N.E.3d at 1079 (emphasis in original) (citing Sargent v. State, 27 N.E.3d 729, 731 (Ind. 2015)). The movant “can make this showing when undisputed evidence affirmatively negates a required element” of the nonmovant's claim. Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368, 377 (Ind. 2022) (citing Siner, 51 N.E.3d at 1187–88). Only if the movant meets this prima facie burden does the burden then shift to the nonmovant to “come forward with contrary evidence showing an issue for the trier of fact.” Abbott, 183 N.E.3d at 1079 (citing Hughley, 15 N.E.3d at 1003).

[11] White sought summary judgment on her breach of contract claim and Defendants’ unjust enrichment counterclaim. On appeal, Defendants challenge only the trial court's ruling on the breach of contract claim.⁴

[12] To determine whether the trial court erred by entering summary judgment in favor of White on her breach of contract claim, we must resolve two issues: (a) Who is bound by the promissory note and liable for any breach thereof, and (b) What amount is owed under the promissory note.⁵ Both inquiries require us to interpret the contract, which is a question of law that we review de novo, Thomas v. Valpo Motors, Inc., 258 N.E.3d 236, 239 (Ind. 2025) (citing Land v. IU Credit Union, 218 N.E.3d 1282, 1286 (Ind. 2023)). Lake Imaging, LLC v. Franciscan All., Inc., 182 N.E.3d 203, 206 (Ind. 2022)). “As such, cases involving contract interpretation are particularly appropriate for summary judgment.” Tricor Auto. Grp. v. Dealer VSC Ltd., 219 N.E.3d 206 (Ind. Ct. App. 2023) (quoting B & R Oil Co. v. Stoler, 77 N.E.3d 823, 827 (Ind. Ct. App. 2017)), trans. denied sub nom. TriCor Auto. Grp. v. Elzayn, 228 N.E.3d 1024 (Ind. 2024). When this court interprets a contract,

we ascertain the intent of the parties at the time the contract was made, as disclosed by the language used to express the parties’ rights and duties. We look at the contract as a whole ․ and we accept an interpretation of the contract that harmonizes all its provisions. A contract's clear and unambiguous language is given its ordinary meaning. A contract should be construed so as to not render any words, phrases, or terms ineffective or meaningless.

Ryan v. TCI Architects/Eng'rs/Cont'rs, Inc., 72 N.E.3d 908, 914 (Ind. 2017) (internal citations omitted).

a. Who is Bound & Liable under the Promissory Note

[13] Throughout this litigation, Defendants have contended that they are not bound by the Promissory Note because it does not define “borrower”; Tomich did not sign a personal guaranty for the Promissory Note; and MIYO Inc. is not a party to the Promissory Note. The Promissory Note in its entirety is as follows:

Tabular or graphical material not displayable at this time.

Appellants’ App. Vol. II at 51; see also id. at 39.

[14] The Promissory Note clearly provides that the “Undersigned”—that is, MIYO, LLC—“promises to pay to the order of Aimee White ․ the sum of Eighty Thousand and 00/100 ($80,000.00) Dollars.” Appellants’ App. Vol. II at 51 (emphasis in original). Accordingly, the parties to be bound by the Promissory Note are White as lender and MIYO, LLC as borrower.

[15] Nevertheless, White argues that Tomich should be held personally liable for the amounts due and owing under the Promissory Note because (1) MIYO, LLC does not exist and did not exist at the time Tomich executed the Promissory Note on MIYO, LLC's behalf, or (2) Tomich disregarded corporate formalities by using MIYO Inc. and Mixdesign, Inc. to make payments on the Promissory Note. In other words, White asks us to pierce the corporate veils of MIYO, LLC; MIYO Inc.; and Mixdesign, Inc.⁶

[16] Our Supreme Court has explained the law concerning piercing the corporate veil as follows:

As a general rule, shareholders are not personally liable for the acts of a corporation, Aronson v. Price, 644 N.E.2d 864, 867 (Ind. 1994) (citation omitted), and a corporation is not liable for the acts of related corporations. Greater Hammond Cmty. Servs., Inc. v. Mutka, 735 N.E.2d 780, 784 (Ind. 2000) (citing William Meade Fletcher, Fletcher Cyclopedia of the Law of Private Corporations §§ 41.10, 43, at 568, 711 (1999)). However, courts may invoke the equitable doctrine of piercing the corporate veil in order to “protect innocent third parties from fraud or injustice.” Aronson, 644 N.E.2d at 867. When a corporation is functioning as an alter ego or a mere instrumentality of an individual or another corporation, it may be appropriate to disregard the corporate form and pierce the veil. See Mutka, 735 N.E.2d at 784; Fletcher, supra, § 41.10 at 124. “The propriety of piercing the corporate veil is highly dependent of the equities of the situation, and the inquiry tends to be highly fact-driven.” Fletcher, supra, § 41.10 at 55 (2012 supp.) (footnote omitted)․ “[T]he burden is on the party seeking to pierce the corporate veil to prove that the corporate form was so ignored, controlled or manipulated that it was merely the instrumentality of another and that the misuse of the corporate form would constitute a fraud or promote injustice.” Aronson, 644 N.E.2d at 867.

Reed, 980 N.E.2d at 301 (second alteration in original).

[17] There is typically not “one talismanic fact” justifying “with impunity piercing the corporate veil,” so “a careful review of the entire relationship between various corporate entities, their directors and officers” is necessary to determine whether “such an equitable action is warranted.” Reed, 980 N.E.2d at 301 (quoting Stacey–Rand, Inc. v. J.J. Holman, Inc., 527 N.E.2d 726, 728 (Ind. Ct. App. 1988)). “When determining whether a shareholder is liable for corporate acts,” we consider, among other things, the following eight factors:

(1) undercapitalization of the corporation, (2) the absence of corporate records, (3) fraudulent representations by corporation shareholders or directors, (4) use of the corporation to promote fraud, injustice, or illegal activities, (5) payment by the corporation of individual obligations, (6) commingling of assets and affairs, (7) failure to observe required corporate formalities, and (8) other shareholder acts or conduct ignoring, controlling, or manipulating the corporate form.

Id. (citing Aronson, 644 N.E.2d at 867). These eight factors are “not exclusive” if “a plaintiff seeks to pierce the corporate veil in order to hold one corporation liable for another closely related corporation's debt.” Id. at 301–02 (quoting Oliver v. Pinnacle Homes, Inc., 769 N.E.2d 1188, 1192 (Ind. Ct. App. 2002), trans. denied).

[18] “A ‘subset’ of piercing the corporate veil to hold one corporation liable for the actions of another is the ‘corporate alter ego doctrine.’ ” Blackwell v. Superior Safe Rooms LLC, 174 N.E.3d 1082, 1093 (Ind. Ct. App.) (quoting Hipps v. Biglari Holdings, Inc., 136 N.E.3d 629, 638 (Ind. Ct. App. 2019), trans. denied), trans. denied, 176 N.E.3d 443 (Ind. 2021). The corporate alter ego doctrine allows courts to “disregard the separateness of affiliated corporate entities when they are not operated separately” but are instead “managed as ‘one enterprise through their interrelationship to cause illegality, fraud, or injustice or to permit one economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise.’ ” Reed, 980 N.E.2d at 302 (quoting Oliver, 769 N.E.2d at 1192). Our Supreme Court has delineated an additional four factors to be considered when faced with a claim under the corporate alter ego doctrine: “(1) similar corporate names were used; (2) the corporations shared common principal corporate officers, directors, and employees; (3) the business purposes of the [organizations] were similar; and (4) the corporations were located in the same offices and used the same telephone numbers and business cards.” Id. (quoting Oliver, 769 N.E.2d at 1192). Moreover, “[t]hese ‘single business enterprise’ corporations may be identified by characteristics such as ‘the intermingling of business transactions, functions, property, employees, funds, records, and corporate names in dealing with the public.’ ” Id. (quoting Oliver, 769 N.E.2d at 1192).

[19] First, considering White's designated evidence in the light most favorable to Defendants, we cannot say that MIYO, LLC is a nonentity; after all, the Promissory Note states that MIYO, LLC is an entity that received funds. We do note, however, that Defendants did not designate any evidence demonstrating that MIYO, LLC does, in fact, exist.

[20] Second, White's designated evidence, when considered in the light most favorable to Defendants, shows that Tomich through MIYO Inc. and Mixdesign, Inc. made payments on the Promissory Note despite not being parties thereto; MIYO Inc. and Mixdesign, Inc. share the same principal office address; and Tomich is the President of both MIYO Inc. and Mixdesign, Inc. as well as a purported member of MIYO, LLC. Furthermore, MIYO Inc. and MIYO, LLC share similar corporate names. Based on this designated evidence, White has made a prima facie showing that Tomich's control of all three of these business entities and her use of MIYO Inc. and Mixdesign, Inc. to pay MIYO, LLC's debts lead to the conclusion that Tomich managed these businesses as one enterprise rather than as separate but affiliated entities. That is, White has made a prima facie case that these three businesses were merely an instrumentality of Tomich, and to allow Tomich to use them as a shield to protect herself from liability under the Promissory Note would constitute a fraud or promote injustice in this case.

[21] Because White met her prima facie burden to pierce the corporate veil of Tomich's businesses, the burden now shifts to Defendants to demonstrate a genuine issue of material fact exists on this issue that would prevent summary judgment. Defendants did not designate any evidence to support their opposition of White's summary judgment motion. Instead, at the trial level, Defendants argued that “the question of whether Defendant, Michaline Tomich, disregarded corporate formalities under Aronson, is not a question for summary judgment, as there is a genuine issue of material fact as to whether there was disregard for corporate formalities.” Appellants’ App. Vol. II at 95. Defendants did not identify let alone explain what genuine issue of material fact prevented the trial court from deciding whether to pierce the corporate veil of Tomich's businesses. On appeal, Defendants contend that Tomich “has no affiliation with Miyo, LLC. Michaline Tomich is not a director, officer, manager, member, or any affiliation whatsoever with Miyo, LLC, the entity on the promissory note.” Appellants’ Br. at 13. Defendants do not cite to any portion of the record in support of this assertion, and the assertion directly contradicts the plain language of the Promissory Note, which identifies Tomich as the member of MIYO, LLC executing the Promissory Note on MIYO, LLC's behalf. Nor do Defendants deny that Tomich signed the Promissory Note.

[22] Without any contradictory designated evidence in support of Defendants’ trial and appellate arguments, we cannot say they have rebutted White's prima facie showing that no genuine issue of material fact exists concerning Tomich's use of Mixdesign, Inc. and both MIYO entities as alter egos in this case. Accordingly, the trial court did not err when it pierced the corporate veil of Tomich's three businesses to hold her personally liable under the Promissory Note.

b. What Amount Is Owed under the Promissory Note

[23] Defendants also challenge the trial court's grant of summary judgment on White's breach of contract claim on the basis that there was a genuine issue of material fact regarding the amount due and owing under the Promissory Note. White's designated evidence, when considered in the light most favorable to Defendants, demonstrates MIYO Inc. and Mixdesign, Inc. made some interest payments on the Promissory Note; no payments were made to the principal of the Promissory Note; and “[a]s of February 14, 2024 there is due and owing $80,000 in principal and $18,460.05 in interest” on the Promissory Note. Appellants’ App. Vol. II at 58. The Promissory Note also provides that in the event of default, “borrower will be responsible for all legal fees associated with the collection of any loan balance.” Id. at 51. White's designated evidence includes an affidavit from her attorney, who averred that White had incurred $4,200.00 in legal fees relating to this case. In total, White's designated evidence shows she was owed $102,660.05 pursuant to the Promissory Note.

[24] According to Defendants, the interest payments made by MIYO Inc. and Mixdesign Inc. “would have affected the total amount due and owing on the Promissory Note and create a genuine issue of material fact as to the actual dollar amount of damages should the court deem an award necessary.” Appellants’ Br. at 14. Defendants bemoan the fact that White did not designate a “full list of payments that were made on the Note,” id., but Defendants could have provided such a list and did not do so. Again, Defendants did not designate any evidence. As such there was no evidence disputing the amounts owed under the Promissory Note.

[25] Furthermore, Defendants claim, “upon information and belief” that MIYO Inc. and White had an agreement for MIYO Inc. “to build an addition on a property owned by a business owned by” White, White owed money under that contract, and the trial court should have used this alleged debt to offset the amount owed under the Promissory Note. Appellants’ Br. at 15. Defendants never provided any evidence that a construction contract of any kind existed between White and MIYO Inc., nor did they provide any evidence that White owed money to MIYO Inc. pursuant to such an agreement. Such unsupported assertions are not well taken and cannot be the basis for a genuine issue of material fact.

[26] Without any contradictory designated evidence in support of Defendants’ arguments, we cannot say they have rebutted White's prima facie showing that no genuine issue of material fact exists concerning the amount owed to White under the Promissory Note. Accordingly, the trial court did not err when it determined that White was owed $102,660.05 under the Promissory Note. That is, the trial court did not err by granting summary judgment in favor of White on her breach of contract claim and did not err by holding Tomich personally liable for the $102,660.05 owed pursuant to the Promissory Note.

2. The Trial Court Did Not Abuse Its Discretion by Ultimately Denying Defendants’ Motion for Leave to Amend Their Counterclaim

[27] Defendants next challenge the trial court's decision to deny their motion for leave to amend their counterclaim. “[T]he Indiana Trial Rules generally implement a policy of liberal amendment of pleadings, absent prejudice to an opponent,” in order to “facilitate decisions on the merits and to avoid pleading traps.” Indiana Farmers Mut. Ins. Co. v. Richie, 707 N.E.2d 992, 996 (Ind. 1999) (quoting Kimberlin v. DeLong, 637 N.E.2d 121, 128 (Ind. 1994)). Defendants sought leave to amend under Indiana Trial Rule 15(A), which provides in relevant part that “a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given when justice so requires.”

[28] We review for an abuse of discretion a trial court's decision on whether to allow a party to amend a pleading; that is, we will reverse such a decision only if it is “clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law.” Cross-Rd. Farms, LLC v. Whitlock, 157 N.E.3d 555, 561 (Ind. Ct. App. 2020) (quoting Williams v. Inglis, 142 N.E.3d 467, 475 (Ind. Ct. App. 2020), disapproved of on other grounds by Miller v. Patel, 174 N.E.3d 1061 (Ind. 2021)). In determining whether an abuse of discretion occurred, we evaluate several factors, including “undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiency by amendment previously allowed, undue prejudice to the opposing party by virtue of the amendment, and futility of the amendment.” Id. (quoting Williams, 142 N.E.3d at 475).

[29] Defendants argue the trial court erred by denying their motion for leave to amend on two bases: (a) the trial court's decision to vacate its previous order granting Defendants’ motion for leave to amend prejudiced Defendants’ rights, and (b) justice required allowing Defendants to amend the counterclaim. We address each argument in turn.

a. Prejudice

[30] Regarding Defendants’ prejudice claim, a more detailed review of this case's procedural history is necessary. At 4:44 p.m. on February 20, 2024—just four days after White filed her summary judgment motion—Defendants filed a motion seeking leave to amend their counterclaim. From there, procedural missteps, delays, and insufficient communication make a clear understanding of when and how this issue was resolved extremely difficult. Less than 24 hours after Defendants filed their motion and before White had a chance to file a response, the trial court granted Defendants’ motion. At 5:07 p.m. on February 21—after the trial court had already ruled—White filed her objection to Defendants’ motion for leave to amend their counterclaim. The next day, February 22, Defendants filed their amended counterclaim and corresponding summonses to newly named parties JAKK Holdings, LLC and G&A Tuscarora, LLC, and White filed a motion asking the trial court to reconsider its ruling. The trial court did not rule on White's motion to reconsider within five days—on or before Tuesday, February 27—so that motion was denied pursuant to Trial Rule 53.4(B).⁷ On March 1, the trial court set a hearing for March 13 to hear White's motion to reconsider. It appears that the March 13 hearing was continued to April 4.

[31] At the hearing on April 4, the parties argued the motion to reconsider and agreed that no response to the amended counterclaim would be required until after the trial court ruled on the motion for summary judgment and the motion to reconsider. Even though they had just agreed that no response would be required on the amended counterclaim, on April 19, Defendants filed a motion for default judgment on their amended counterclaim against JAKK Holdings. On May 10 and November 6, White filed motions asking the trial court to rule on her motion to reconsider. In January 2025, after a hearing, the trial court vacated its February 21, 2024, order granting Defendants’ motion for leave to amend and denied the same. Accordingly, the trial court deemed moot all other pending motions, including Defendants’ then-pending motion to rule on their motion for default judgment.

[32] Defendants claim the trial court's decision to reverse course on their motion for leave to amend prejudiced them because they had filed a motion for default judgment in the interim and because “vacating the order would mean that the case would be litigated without all proper parties.” Appellants’ Br. at 18. First, Defendants do not explain how the trial court's amendment decision prejudiced their rights concerning their pending motion for default judgment. Second, as explained in more detail below, see infra ¶¶ 33–36, Defendants chose to litigate the case for more than one year without all proper parties; they cannot now complain that they must continue on in that fashion.

b. Justice

[33] Defendants requested leave to amend their counterclaim to “name necessary and proper parties” based on the ownership of the Schererville Property. Appellants’ App. Vol. II at 72. In support of this request, Defendants alleged in relevant part as follows:

4. Upon information and belief, it was discovered, during the Discovery Phase of this matter, Plaintiff, Aimee White, is not the owner of the property located at 21 E. US Hwy 30, Schererville, Lake County, Indiana (the “Property”).

5. Upon information and belief, when this litigation was filed, the Property may have been owned by a Nevada Limited Liability Company, G&A Tuscarora, LLC. (see, Exhibit 1).

6. Upon information and belief, on or about May 13, 2021, pursuant to Instrument No. 2021-509579, the Property was transferred via “Corrective Deed” to JAKK Holdings, LLC, an Arizona Limited Liability Company. (see, Exhibit 2).

Id. at 71. Exhibit 1 to the motion is a property record for the Schererville Property that shows G&A Tuscarora owned the property until May 13, 2021, at which time ownership was transferred to JAKK Holdings. Exhibit 2 is a Corrective Deed that corrected a deed recorded on June 17, 2020, by which JAKK Holdings had taken ownership of the Schererville Property from G&A Tuscarora. The only other documentation attached to Defendants’ motion was a copy of their proposed amended counterclaim.

[34] White objected to Defendants’ motion for leave to amend and alleged in relevant part as follows:

2. Counterclaimants state that they learned during the course of discovery that Aimee White did not own the subject property; however, this assertion is not true:

a. Counterclaimants paid multiple rent checks to JAKK Holdings and G&A Tuscarora, LLC, not to Aimee White;

b. Due diligence should have required a search of the county records which would have made it clear that White was not the owner;

c. In her Answer to the original Counterclaim White denies being the owner and lists as an affirmative defense, failure to state a necessary party;

d. Counterclaimants allege that this is newly discovered information through the course of discovery; however this response was provided to them on October 3, 2022 ․

Appellants’ App. Vol. II at 82–83. White included in paragraph 2.d. of her motion a screenshot of what appears to be her response to a discovery request regarding ownership of the Schererville Property.

[35] Before reaching the merits, we note that in support of their appellate arguments regarding the amendment, Defendants rely on materials that were not attached to their motion for leave to amend and are not otherwise part of the record. In particular, Defendants include in their Appendix White's responses to Interrogatories, dated September 30, 2022, and “Entity Information” for JAKK Holdings and G&A Tuscarora. The plain text of Indiana Appellate Rule 50(A) requires materials included in the Appendix be part of the record. Accordingly, we do not rely on any citations, statements of fact, or argument regarding such materials. We also observe that Defendants rely on numerous unsupported statements of fact, mainly regarding an alleged “verbal agreement” between Defendants and White's husband. See Ind. Appellate Rule 46(A)(8)(a) (requiring all statements of fact be supported by citations to the record). These facts were not alleged in either Defendants’ motion for leave to amend or White's objection thereto, so we do not rely on them.

[36] Turning to the merits, Defendants’ motion for leave to amend and White's objection thereto are unverified, and neither Defendants nor White provided documentation in support of their claims regarding when Defendants learned through discovery about the Schererville Property's ownership. In fact, White did not provide documentation to support any of her allegations. The trial court was therefore left with the daunting task of trying to discern from bald assertions when Defendants knew White did not own the Schererville Property. Once it considered Defendants’ motion for leave to amend in light of White's objection thereto, the trial court exercised its discretion and apparently credited White's version of events that Defendants knew she did not own the Schererville Property by at least October 3, 2022, more than one year before they sought leave to amend their counterclaim. And by Defendants’ own supporting documentation, they had record notice of White's lack of ownership no later than May 2021, more than two years before they filed their motion. On this record, we cannot say the trial court abused its discretion by ultimately denying Defendants’ motion for leave to amend their counterclaim.

Conclusion

[37] In sum, the trial court did not err by granting summary judgment in favor of White on her breach of contract claim, and it did not abuse its discretion by denying Defendants’ motion for leave to amend their counterclaim. We therefore affirm the trial court on all issues raised.

[38] Affirmed.

FOOTNOTES

1.   Upon Defendants’ motion, the trial court certified its order on summary judgment for interlocutory review. This court denied Defendants’ motion to accept jurisdiction over their interlocutory appeal.

2.   The trial court stated in relevant part that “all parties in this cause agree that Plaintiff, Aimee White, does not own the building at issue in this proceeding; therefore, Counterclaimants[’] claim against White shall be dismissed․ Counterclaimants shall take nothing by way of their counterclaim and it is hereby dismissed.” Appellants’ App. Vol. II at 99. When the trial court ruled on White's summary judgment motion, Defendants had already filed their amended counterclaim that named two business entities as counterclaim defendants in place of White. We therefore assume the trial court dismissed the original version, not the amended version, of Defendants’ counterclaim.

3.   Defendants fail to support with citations to the record numerous statements of fact in their Statement of Facts and Argument, as required by Indiana Appellate Rules 46(A)(6)(a) and 46(A)(8)(a), respectively. These same errors are repeated in the Defendants’ Reply Brief. We remind counsel that the purpose of our appellate rules—especially Appellate Rule 46 governing the content of briefs—“is to aid and expedite review and to relieve the appellate court of the burden of searching the record and briefing the case.” Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (emphasis added) (quoting Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind. Ct. App. 2021)). We also note that the Chronological Case Summary (“CCS”) the Defendants included in their Appendix is missing 7 of its 14 pages. To the extent necessary, we have taken judicial notice of the CCS and its contents pursuant to Appellate Rule 27. Furthermore, the Defendants fail to organize the documents in their Appendix in the sequence set forth in Appellate Rules 51(B) and 50(A)(2), and the Table of Contents for the Defendants’ Appendix identifies incorrect pages for most of the documents listed, with some documents not being listed at all. Defendants’ noncompliance with Appellate Rules 50 and 51 complicated but did not substantially impede our review of this appeal.

4.   In a single sentence buried in their argument concerning the amendment of their counterclaim, Defendants seemingly attempt to challenge the trial court's grant of summary judgment in favor of White on Defendant's unjust enrichment counterclaim. Defendants have waived such a challenge for failure to present cogent argument thereon. See App. R. 46(A)(8)(a) (requiring cogent reasoning); Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (holding substantial noncompliance with Appellate Rules may result in waiver); Miller, 212 N.E.3d at 657 (quoting Dridi, 172 N.E.3d at 364) (“We will not step in the shoes of the advocate and fashion arguments on his behalf, ‘nor will we address arguments’ that are ‘too poorly developed or improperly expressed to be understood.’ ”).

5.   On appeal, Defendants do not dispute that a breach of the Promissory Note occurred, so we assume without deciding that a breach of the Promissory Note did occur.

6.   Courts may pierce the corporate veils of not only corporations but also of limited liability companies. Blackwell v. Superior Safe Rooms LLC, 174 N.E.3d 1082, 1092 n.7 (Ind. Ct. App.) (citing Longhi v. Mazzoni, 914 N.E.2d 834, 838 n.3 (Ind. Ct. App. 2009), trans. denied), trans. denied, 176 N.E.3d 443 (Ind. 2021).

7.   Even though it did not rule on White's motion to reconsider within five days, the trial court retained the power to revisit its order granting Defendants’ motion for leave to amend. See Conroad Assocs., L.P. v. Castleton Corner Owners Ass'n, Inc., 205N.E.33d 1001, 1005 (Ind. 2023) (citing In re Est. of Lewis, 123 N.E.3d 670, 673 (Ind. 2019)) (holding a trial court “may revisit a ruling when the matter remains in fieri—in other words, pending judgment”).

Felix, Judge.

Judges Vaidik and Tavitas concur. Vaidik, J., and Tavitas, J., concur.