Trever Ann Boehm, Appellant-Plaintiff v. BDF LLC (2026)

MEMORANDUM DECISION

Case Summary

[1] Trever Ann Boehm entered into a contract with Washboard BDF, LLC (“Washboard”) for the purchase of property and construction of a home. After the home was built and the sale closed, Boehm—unhappy with the construction—sued Washboard for breach of contract and negligence. Washboard moved for summary judgment and after Boehm responded, moved to strike most of her designated evidence. The trial court granted Washboard's motion to strike and then granted summary judgment to Washboard. Boehm raises two issues on appeal: (1) Did the trial court abuse its discretion in striking her designated evidence?; and (2) Did the trial court err in granting summary judgment to Washboard? We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] In April 2021, Boehm and Washboard signed a purchase agreement for Boehm to purchase property from Washboard on which Property Sure Construction, Inc. would build a home for her.¹ In February 2022, the parties agreed to an amendment “as a resolution and settlement of a dispute which arose out of the course of construction regarding invoicing, change orders, and specifications of said model home located at the real property” described in the purchase agreement. Appellant's App. Vol. 2 at 64. Construction was completed, and the parties closed on the property in March.

[3] In July 2023, Boehm filed a lawsuit against Washboard for breach of contract and negligence.² Boehm also pursued a count for attorney fees and costs. She alleged a lengthy list of construction defects and other problems during construction, such as increased pricing. As to her breach of contract claim, Boehm alleged Washboard failed “to install the subject property in a workmanlike manner, in breach of both the [purchase agreement's] express terms and [Washboard's] implied duty to perform their work skillfully, carefully and in a workmanlike manner.” Id. at 17. And as to the negligence claim, Boehm alleged Washboard had “a duty of reasonable care in building the subject property” and a duty to perform the work skillfully, carefully, and in a workmanlike manner, but breached its duty by “failing to provide reasonable care in installing the concrete patio[.]” Id. at 18. Attached to the complaint were the 2021 purchase agreement; a signed change order dated August 30, 2021; an unsigned change order dated December 6, 2021; and the February 2022 amendment to the purchase agreement.

[4] Washboard filed a motion for summary judgment, designating the purchase agreement, the amendment, and the affidavits of Derek Neff and Amy Rhoda as evidence. Neff identified himself as the director of operations for Property Sure and stated he met with Boehm before the parties signed the purchase agreement and “modified to her liking” the plans for construction of a home on the property. Id. at 71. Rhoda identified herself as the listing broker for the property and averred Boehm and Washboard conducted a final walkthrough inspection of the home and agreed to close the sale on March 4, 2022. On that date, Boehm “accepted the Property, attended a closing, and accepted a warranty deed to the Property.” Id. at 70. In its memorandum, Washboard argued the doctrine of merger by deed barred Boehm's breach of contract claim and the economic loss rule barred her negligence claim as a matter of law. Washboard also alleged if it prevailed on summary judgment, it—rather than Boehm—would be entitled to attorney fees. Boehm filed a memorandum in opposition to summary judgment and designated her own evidence.

[5] Shortly before a scheduled hearing on the motion for summary judgment, Washboard moved to strike most of Boehm's designated evidence. Boehm filed a response opposing Washboard's motion to strike.³

[6] Following a hearing, the trial court struck the challenged items and stated they would “not be considered by the Court in ruling on” Washboard's motion for summary judgment. Appellant's App. Vol. 3 at 27. The same day, the trial court granted summary judgment to Washboard on all three counts of Boehm's complaint.

Standard of Review

[7] We review a trial court's summary judgment decision de novo, applying the same standard as the trial court. Isgrig v. Trs. of Ind. Univ., 256 N.E.3d 1238, 1244 (Ind. 2025). A party seeking summary judgment must establish “the designated evidentiary matter shows ․ there is no genuine issue as to any material fact and ․ the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). If the moving party meets these two requirements, the burden shifts to the non-moving party to present evidence establishing the existence of a genuine issue of material fact. Isgrig, 256 N.E.3d at 1244. In deciding whether summary judgment is proper, we consider only properly designated evidence that would be admissible at trial. Hussain v. Salin Bank & Tr. Co., 143 N.E.3d 322, 328 (Ind. Ct. App. 2020), trans. denied. And we construe all factual and reasonable inferences in favor of the non-moving party. Isgrig, 256 N.E.3d at 1244.

[8] The appellant bears the burden of proving the trial court erred in its summary judgment decision. Schwartz v. Heeter, 994 N.E.2d 1102, 1105 (Ind. 2013). But in this case, Washboard did not file an appellee's brief. Therefore, we apply a less stringent standard of review and may reverse if Boehm has shown prima facie error. App. R. 45(D); Zelman v. Cap. One Bank (USA) N.A., 133 N.E.3d 244, 247 (Ind. Ct. App. 2019). “This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee.” B.M. v. A.J. by Next Friend R.J., 186 N.E.3d 1194, 1201–02 (Ind. Ct. App. 2022).

The trial court erred in striking some of Boehm's designated evidence.

[9] Because we cannot review the trial court's ruling on summary judgment unless we know what evidence was properly designated by the parties, we first address Boehm's contention that the trial court abused its discretion by striking certain portions of her designated evidence.

[10] A party supporting or opposing a motion for summary judgment “shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” T.R. 56(C). “In ruling on a motion for summary judgment, the trial court will consider only properly designated evidence which would be admissible at trial.” Seth v. Midland Funding, LLC, 997 N.E.2d 1139, 1141 (Ind. Ct. App. 2013). Such evidence does not include inadmissible hearsay contained in an affidavit. See Holmes v. Nat'l Collegiate Student Loan Tr., 94 N.E.3d 722, 725 (Ind. Ct. App. 2018). Nor does it include documents containing unsworn statements or unverified exhibits. Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154, 159 (Ind. 2014).

[11] Questions regarding the admissibility of evidence are entrusted to the trial court's discretion. Brown v. Charles Sturdevant Post of Am. Legion, 270 N.E.3d 962, 965 (Ind. Ct. App. 2025). This evidentiary discretion extends to ruling on motions to strike affidavits on the grounds they fail to comply with the summary judgment rules. See id. at 965–66.

[12] Boehm designated fourteen items in response to Washboard's motion for summary judgment.⁴ Washboard moved to strike eleven of those items,⁵ and the trial court struck them all. Boehm argues the trial court abused its discretion in striking each of these items. The party offering the evidence bears the burden of establishing its admissibility. See McCutchan v. Blanck, 846 N.E.2d 256, 260 (Ind. Ct. App. 2006). Therefore, Boehm must convince us the stricken material satisfied the requirements of Trial Rule 56.⁶

Boehm's Verified Complaint, with Attachments

[13] Washboard moved to strike Boehm's complaint and all attachments except the purchase agreement (which Washboard also independently designated in support of its motion). The trial court struck statements in the complaint that were “not based on personal knowledge” or contained inadmissible hearsay and struck the attachments because they included inadmissible hearsay and were unauthenticated. See Appellant's App. Vol. 3 at 23. Although Boehm offers reasons on appeal why these items should not have been stricken, see Appellant's Br. at 24, she did not specifically address them at the trial court level, either in her written response or at the hearing. Her argument as to these items was not preserved below, and we do not address it here. See Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004) (“Issues not raised before the trial court on summary judgment cannot be argued for the first time on appeal and are waived.”).

Boehm's Affidavit

[14] Washboard moved to strike portions of Boehm's affidavit “that are not based upon personal knowledge or contain inadmissible hearsay” and specifically identified paragraphs 8, 9, 32, and 38 as “either conclusory, lack[ing] foundation, or constitut[ing] inadmissible hearsay.” Appellant's App. Vol. 3 at 12.

[15] “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” T.R. 56(E). “Mere assertions in an affidavit or conclusions of law or opinions will not suffice.” City of Gary v. McCrady, 851 N.E.2d 359, 364 (Ind. Ct. App. 2006) (citation omitted). Further, “[i]nadmissible hearsay contained in an affidavit may not be considered in ruling on a summary judgment motion.” Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct. App. 2007), trans. denied. A court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits. City of Indianapolis v. Duffitt, 929 N.E.2d 231, 239 (Ind. Ct. App. 2010). But here, the trial court struck the entirety of Boehm's thirteen-page, forty-two-paragraph affidavit rather than the objectionable parts alone. Washboard limited its motion to strike to four specific paragraphs: paragraph 9 because it contains statements regarding Washboard's intent; paragraph 32 because it contains speculative statements regarding causes of construction defects; and paragraphs 8 and 38 because they contain statements regarding representations by third parties. But the trial court did not do the same in its order, instead striking without limitation the “[a]ffidavit of ․ Boehm (Designation, pages 29-42) that contains speculative statements, inadmissible hearsay, and conclusions not based on personal knowledge.” Appellant's App. Vol. 3 at 23.

[16] Boehm's affidavit included a recitation that it was based on her personal knowledge. She affirmed under the penalties of perjury the statements were true and accurate. Most of the statements in the affidavit relay information she would be expected to have personal knowledge of as the purchaser of property on which a new home was to be constructed. Many of the averments are her firsthand observations or experiences. In other words, the bulk of the affidavit meets the requirements of Trial Rule 56(E) and only those specific portions that do not meet the rules’ parameters should have been stricken. Cf. Price v. Freeland, 832 N.E.2d 1036, 1042 (Ind. Ct. App. 2005) (holding trial court abused its discretion in denying defendant's motion to strike four specific paragraphs of plaintiff's affidavit). To the extent the trial court struck portions of the affidavit that were admissible, it abused its discretion.

March 2, 2022, Email communications between Boehm and realtors

[17] Relevant to these emails and the remaining items of designated evidence to be discussed below, Trial Rule 56(E) states: “Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” (Emphasis added.)

[18] Boehm designated an email she received from her realtor Tracy Young, dated March 2, 2022. Included in this email was a message Young had sent to Rhoda on the same date. Young's emails to both Boehm and Rhoda generally concerned the closing date, and Young said to Rhoda: “Like we said before everything that is not agreed to let the attorneys handle it after close.” Appellant's App. Vol. 2 at 101. Washboard moved to strike these emails as inadmissible hearsay. The trial court agreed with Washboard and struck the evidence. Boehm claims the trial court abused its discretion in striking these emails because they are an opposing party's statements and therefore not hearsay. See Appellant's Br. at 27–28.

[19] Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Hearsay is generally not admissible. Evid. R. 802. But a statement is not hearsay if the opposing party or its agent made the statement and the proponent offers it against that party. Evid. R. 801(d)(2)(A), (D). Because both emails are from Young and Young is Boehm's agent—not Washboard's—the opposing-party-statement exception does not apply, and the trial court did not abuse its discretion by striking these emails.

February 25, 2022, Inspection Report and Photos

December 20, 2021, Appraisal Report of Daniel Craft

November 19, 2021, Phoenix Home Inspection[ ] Report

[20] Washboard moved to strike the following items because they lack authentication and constitute inadmissible hearsay: (1) a February 2022 inspection report prepared by Mark Walcott; (2) a December 2021 appraisal of Boehm's property prepared by Daniel Craft; and (3) a November 2021 inspection report prepared by Phoenix Home Inspection LLC. The trial court granted Washboard's motion to strike each item. Boehm does not dispute the items contain hearsay, nor does she claim the items are properly authenticated. See Appellant's Br. at 32 (“It is true that third parties created these documents, and Boehm did not have affidavits from their creators at the summary judgment stage.”). Rather, she argues the trial court abused its discretion because these items are business records that could be authenticated at trial.

[21] Evidence Rule 803 provides an exception to the hearsay rule for records of regularly conducted business activity if certain requirements are met. To establish a “record of an act, event, condition, opinion, or diagnosis” is admissible under this rule, the proponent of the evidence must show:

(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Evid. R. 803(6).

[22] To admit business records pursuant to this rule, the proponent of the exhibit must authenticate it. Wells Fargo Bank, N.A. v. Hallie, 142 N.E.3d 1033, 1038 (Ind. Ct. App. 2020). “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Evid. R. 901(a). Sufficient evidence includes testimony of a witness with knowledge. Evid. R. 901(b)(1). Evidence Rule 803(6) permits authentication by affidavit that complies with Evidence Rule 902:

Unless the source of information or the circumstances of preparation indicate a lack of trustworthiness, the original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)–(C), as shown by a certification under oath of the custodian or another qualified person [is self-authenticating].

Evid. R. 902(11).

[23] Boehm contends she should not have to authenticate these items at the summary judgment stage because she would be able to do so at trial, stating “[i]f evidence can be presented in admissible form at trial, it may be used to fend off summary judgment.” Appellant's Br. at 32. This is an apparent reference (without citation) to the rule that “in order to be admissible at a summary judgment hearing, evidence need not necessarily be in a form that would be admissible at trial, so long as the substance of the evidence would be admissible.” Harrison v. Veolia Water Indianapolis, LLC, 929 N.E.2d 247, 253 n.6 (Ind. Ct. App. 2010), trans. denied. But this rule is for affidavits, not documentary evidence. See Ford v. Jawaid, 52 N.E.3d 874, 877 n.1 (Ind. Ct. App. 2016). Our longstanding rule is that unsworn statements and unverified exhibits do not qualify as proper Trial Rule 56 evidence. Seth, 997 N.E.2d at 1141; see Ind. Univ. Med. Ctr. v. Logan, 728 N.E.2d 855, 858 (Ind. 2000) (holding twelve exhibits consisting of uncertified documents and unsworn statements were not proper Trial Rule 56 evidence). Boehm also argues the trial court should have allowed her to supplement her designation with the required certifications. Even assuming this would have been allowed, she did not request this relief from the trial court.⁷ These items were not authenticated as business records, and the trial court did not abuse its discretion in striking them because they were not proper Trial Rule 56 evidence.⁸

Jason Branham – Final Invoice – related to roof dormer issue

[24] Washboard moved to strike the “final invoice prepared by Jason Branham” because it constitutes inadmissible hearsay and lacks authentication. Appellant's App. Vol. 3 at 14. The trial court granted the motion. Boehm argues, as she did with the items above, that it is a business record she could authenticate at trial by calling Branham “to testify to the repairs made and the costs incurred ․ or [to] simply provid[e] direct evidence of damages.” Appellant's Br. at 32. We agree with the trial court that this document contains inadmissible hearsay and lacks authentication and discern no abuse of discretion in it being stricken. But we address it separately from the documents above to point out a glaring discrepancy between the document and Boehm's description of it.

[25] Boehm claims in her brief that this is an “invoice from contractor Jason Branham for repair work[.]” Id. at 31; see also id. at 15 (stating “Boehm had to hire independent contractors to correct some of the problems” with the home, including “contractor, Jason Branham, [who] performed repair work and provided a final invoice documenting the corrective work that was needed and completed” to the roof dormer). But the document is a photo of a final invoice prepared by Property Sure for work done on Branham's home. On its face, it is not an invoice prepared by a contractor for work done on Boehm's property. And in her affidavit, Boehm states: “My neighbor, Jason Branham shared with me the Final Invoice he received from [Property Sure] on 12-15-21, included with Plaintiff's Designated Evidence.” Appellant's App. Vol. 2 at 105. In other words, Boehm's counsel wholly misrepresented this item of designated evidence in her brief.⁹ Counsel's lack of candor on this point casts doubt on the credibility of the remaining assertions in the brief and—coupled with the pleadings counsel did not include in the appendix—seriously hindered our review.

June 17, 2022, Certified Mail correspondence from Plaintiff's Counsel to Defendant's Counsel

[26] Washboard moved to strike a letter dated June 17, 2022, from Boehm's counsel to Washboard's counsel listing alleged construction defects. The trial court struck the letter because it was inadmissible hearsay. As with the complaint, Boehm offers reasons on appeal why this letter should not have been stricken but did not address the letter in the trial court. Boehm's argument as to this letter was not preserved below and we do not discuss it.¹⁰

November 3, 2022, emails regarding defects

[27] Boehm designated two emails from November 2022: one from her counsel to Washboard's counsel noting their clients had not “come to a global understanding” about remedying defects and asking if Washboard “want[s] to consider pre-litigation mediation”; and a response from Washboard's counsel saying, “[Washboard] did agree to fix several things and ․ I thought they might have worked through that. I will get updated from [Washboard.]” Appellant's App. Vol. 2 at 196. Washboard moved to strike these emails as inadmissible under Evidence Rule 408 because they contain settlement or compromise offers, and the trial court granted the motion. Boehm agrees Evidence Rule 408 excludes evidence of settlement negotiations when offered to prove liability but claims these communications were “to show the parties were continuing to discuss solutions ․ and that Washboard did not deny the existence of problems[.]” Appellant's Br. at 31.

[28] Evidence Rule 408 provides:

Evidence of the following is not admissible on behalf of any party either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering, or accepting, promising to accept, or offering to accept a valuable consideration in order to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim. Compromise negotiations include alternative dispute resolution.

Evid. R. 408(a). “Indiana judicial policy strongly urges the amicable resolution of disputes and thus embraces a robust policy of confidentiality of conduct and statements made during negotiation and mediation.” Horner v. Carter, 981 N.E.2d 1210, 1212 (Ind. 2013). To this end, Evidence Rule 408 shields communications made during compromise negotiations, not preliminary inquiries about whether to pursue such negotiations. The emails here reflect pre-negotiation communication. The trial court abused its discretion in striking this evidence as running afoul of Evidence Rule 408.

August 2, 2021, Septic Permit

[29] The trial court granted Washboard's motion to strike what was described as a septic permit as inadmissible hearsay because it was not certified. Boehm argues the permit is admissible under the public records exception to the hearsay rule and is self-authenticating.

[30] Evidence Rule 803(8) provides a “record or statement of public office” is not excluded by the rule against hearsay if:

(i) it sets out:

(a) the office's regularly conducted and regularly recorded activities;

(b) a matter observed while under a legal duty to [observe and] report; or

(c) factual findings from a legally authorized investigation; and

(ii) neither the source of information nor other circumstances indicate a lack of trustworthiness.

This exception is based on the “assumption that public officials perform their duties properly without motive or interest other than to submit accurate and fair reports.” Fowler v. State, 929 N.E.2d 875, 878 (Ind. Ct. App. 2010), trans. denied.

[31] As with the business records discussed above, the proponent of a public record must authenticate the evidence. See supra ¶ 23. “A copy of an official record ․ or a copy of a document that was recorded or filed in a public office as authorized by law” is self-authenticating if the copy is certified as correct by:

(A) the custodian or another person authorized to make the certification; or

(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.

Evid. R. 902(4).

[32] As Boehm acknowledges, “a copy attested by an official would suffice” to authenticate the document. Appellant's Br. at 29. But the “permit” seems to be a screenshot from a phone rather than a copy of an official document. See Appellant's App. Vol. 2 at 242–43 (showing the time and the word “Done” in the upper left corner and a WiFi signal, battery icon, and “image markup” icon in the upper right corner). It does not appear to be complete (the image is cut off at the bottom), and it is titled “Onsite Residential Sewage Disposal System Drawing,” so it is not even clear it is a permit. Id. at 242. Most importantly, the document bears no signature, let alone a certification as a record maintained by a public office. Nor is it authenticated by testimony of a witness with knowledge that the item is what it is claimed to be. See Evid. R. 901(b)(1). And finally, the circumstances described above indicate a lack of trustworthiness.

[33] Boehm claims she “could have obtained a certified copy if given the chance.” Appellant's Br. at 29.¹¹ But she had the chance to do so before she made her designation. Authentication is always required, not just when another party objects. The trial court did not abuse its discretion in striking this item from Boehm's designation.

December 10, 2021, Letter to Defendants

[34] Finally, the trial court struck a letter dated December 10, 2021, from Boehm's counsel to Washboard and Property Sure as inadmissible hearsay. Boehm does not make a specific argument in her brief supporting admission of this letter and any such argument is waived. See App. R. 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning.”).

[35] Having determined what designated evidence may properly be considered, we turn to Washboard's motion for summary judgment on Boehm's claims.

The trial court erred in granting summary judgment to Washboard on the breach of contract claim but correctly granted summary judgment on the negligence claim.

[36] As a reminder, when reviewing the trial court's grant of Washboard's motion for summary judgment, “we stand in the shoes of the trial court and consider only those materials properly designated and before the trial court pursuant to Trial Rule 56.” Miller v. Grand Trunk W. R.R. Inc., 727 N.E.2d 488, 494 (Ind. Ct. App. 2000) (emphasis added). Here, those materials include Washboard's designated evidence and, from Boehm's designation, the following items that were either unchallenged or improperly struck: non-hearsay portions of Boehm's affidavit; the July 18, 2022, letter from Washboard's attorney responding to Boehm's list of alleged construction defects; the February 2022 Punch List for the home; the signed August 2021 change order; and the November 2022 emails between counsel.

Breach of Contract

[37] To succeed on a breach of contract claim, the plaintiff must prove a contract existed, the defendant breached the contract, and the plaintiff suffered damage because of the breach. Transp. Leasing/Cont., Inc. v. Northland Ins. Co., 271 N.E.3d 180, 188 (Ind. Ct. App. 2025). Boehm's breach of contract claim alleged she and Washboard had a contract, Washboard “failed to deliver the home in the condition and with the features promised in the parties’ agreement and failed to perform its construction obligations in a workmanlike manner,” and she was damaged. Appellant's Br. at 37.

[38] Washboard's motion for summary judgment alleged it was entitled to judgment as a matter of law because the doctrine of “merger by deed” bars her claim. Appellant's App. Vol. 2 at 11. This doctrine provides: “In the absence of fraud or mistake, all prior or contemporaneous negotiations or executory agreements, written or oral, leading up to the execution of a deed are merged therein by the grantee's acceptance of the conveyance in performance thereof.” Thompson v. Reising, 51 N.E.2d 488, 491 (Ind. App. 1943). Washboard designated evidence showing the parties entered a purchase agreement for the purchase of property and construction of a home. They amended the purchase agreement on February 7, 2022, to resolve a dispute “regarding invoicing, change orders, and specifications” that arose during construction of the home. Appellant's App. Vol. 2 at 64. Thereafter, Boehm inspected the home and accepted a warranty deed to the property on March 4, 2022. Washboard asserted that when Boehm accepted the deed, any claim she had for breach of the purchase agreement was extinguished. The trial court granted the motion for summary judgment without explanation.¹²

[39] Under the merger-by-deed doctrine, if existing contracts are not expressly “carried forward into the deed, [they] are extinguished thereby, and no action lies on the contract.” Thompson, 51 N.E.2d at 491. Examples of rights that would be extinguished if not reserved in the deed include reservation of growing crops, easements over the land conveyed, possession by the grantor for a limited period after title passes, and assumption of a mortgage or current taxes. Id. at 491. In other words, agreements between the parties that are related to the passage of title merge into the deed. See id. (stating the “main purpose of the transaction” is the “conveyance of real estate”); see also Stoneburner v. Fletcher, 408 N.E.2d 545, 549 (Ind. Ct. App. 1980) (noting the right to purchase an adjoining lot “was not part of the main purpose of the contract which was the sale and purchase of Parcel C”).

[40] However, as Boehm pointed out in her response to the motion for summary judgment, there is an exception to the merger-by-deed doctrine “where the contract creates rights collateral to and independent of the conveyance.” Link v. Breen, 649 N.E.2d 126, 128 (Ind. Ct. App. 1995), trans. denied. These collateral rights are generally those “not having to do with title, possession, quality, or emblements[¹³ ] of the land conveyed.” Williams v. Younginer, 851 N.E.2d 351, 357 (Ind. Ct. App. 2006), trans. denied.¹⁴ These rights are allowed to survive because their performance is not necessary to convey real estate, so there is no need to merge them into the deed. Link, 649 N.E.2d at 128. Examples of collateral rights that survive a deed are an agreement “that the seller within a fixed time shall repair the house on the premises to be conveyed,” Thompson, 51 N.E.2d at 491, and implied warranties of habitability and workmanship, Williams, 851 N.E.2d at 357; see ARC Constr. Mgmt., LLC v. Zelenak, 962 N.E.2d 692, 697 (Ind. Ct. App. 2012) (the implied warranty of habitability is a warranty provided by the builder-vendor of a new home to the first purchaser “that the home will be free from defects that substantially impair the use and enjoyment of the home”).

[41] Here, the agreement was for the purchase of real estate and for the construction of a house in accordance with certain plans, specifications, and implied warranties. Whether the construction was collateral to the conveyance of title depends on the express or implied intention of the parties. Thompson, 51 N.E.2d at 492. If the intention is clear from the deed's language, the deed is decisive.¹⁵ Id. If not, “the question is open to other evidence.” Id.

[42] Boehm alleged facts in opposition to summary judgment showing there was an agreement for Washboard to make repairs to the property even after closing. In her affidavit, she averred, “It was my understanding, additional matters to resolve issues of the Work would be resolved after the closing.” Appellant's App. Vol. 2 at 110. She designated as evidence a “punch list” she created after the amendment to the purchase agreement and before closing of nineteen items that needed attention. She attested to a lengthy list of alleged construction defects she had observed in the home and on the property both before and after closing. She designated a letter from Washboard's attorney dated July 18, 2022—several months after closing—acknowledging the issues Boehm had raised and stating Washboard would “return to the property to further inspect and address” certain items. Id. at 197. She also designated an email from Washboard's attorney dated November 3, 2022, in which Washboard's attorney stated Washboard “did agree to fix several things,” id. at 196, and averred she interpreted that to mean Washboard “had intended to fix several defective items that were still at issue after the closing,” id. at 114. Moreover, she averred her understanding was that Washboard would “perform its services in a workmanlike manner.” Id. at 102.

[43] Boehm has designated evidence that creates a genuine issue of material fact as to whether the parties had an agreement that created rights collateral to and independent of the conveyance of the real estate, and if so, whether they intended it to survive the closing. In addition, warranties of habitability and workmanship are implied in the purchase agreement and are not subject to merger by deed. See Williams, 851 N.E.2d at 356–57 (agreeing with cases from other jurisdictions holding implied warranties survive delivery of the deed and noting “it is the better public policy” for such warranties to survive or “they would serve only to warrant the habitability and workmanship during the often relatively short period between the execution of the purchase agreement and the closing of the sale”).¹⁶

[44] “Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004. Washboard did not file an appellate brief to respond to the arguments Boehm has advanced for reversal, and we conclude Boehm has shown prima facie error. See Zelman, 133 N.E.3d at 247. The trial court erred in granting judgment to Washboard as a matter of law on Boehm's breach of contract claim.

Negligence

[45] Boehm pleaded negligence in the alternative. A plaintiff alleging negligence must show a duty owed to the plaintiff by the defendant; a breach of the duty; and damages. Safeco Ins. Co. of Ind. v. Blue Sky Innovation Grp., Inc., 230 N.E.3d 898, 906 (Ind. 2024). Boehm claimed Washboard had a duty to exercise reasonable care in building the property, breached its duty “[b]y failing to provide reasonable care in installing the concrete patio,” and caused her damages. Appellant's App. Vol. 2 at 18 (emphasis added). Washboard argued in its motion for summary judgment that the economic loss doctrine barred Boehm's negligence claim. As with the breach of contract claim, the trial court granted summary judgment to Washboard on the negligence count without explanation.

[46] Where parties have a contractual relationship, “the economic loss rule provides that a defendant is not liable under a tort theory for any purely economic loss caused by its negligence (including, in the case of a defective product or service, damage to the product or service itself)[.]” Indianapolis-Marion Cnty. Pub. Libr. v. Charlier Clark & Linard, P.C., 929 N.E.2d 722, 729 (Ind. 2010). “Purely economic loss” is financial harm “arising from the failure of the product or service to perform as expected.” Residences at Ivy Quad Unit Owners Assoc., Inc. v. Ivy Quad Dev., LLC, 179 N.E.3d 977, 983 (Ind. 2022) (quoting Gunkel v. Renovations, Inc., 822 N.E.2d 150, 153 (Ind. 2005)). Contract law is most appropriate for resolving claims for these losses because they are essentially “disappointed contractual or commercial expectations.” Id. (quoting Gunkel, 822 N.E.2d at 154).

[47] Boehm argues the economic loss doctrine does not bar her claim and offers several exceptions to the rule that she asserts apply, including that “a defendant is liable under a tort theory for a plaintiff's losses if a defective product or service causes personal injury or damage to property other than the product or service itself.” Indianapolis-Marion Cnty. Pub. Libr., 929 N.E.2d at 729. Boehm references poor grading, failure to remove trees, unsafe stair construction, and faulty electrical systems that allegedly caused damage to other property or posed a risk of personal injury. See Appellant's Br. at 47–48. But the only negligence Boehm alleged in her complaint was negligence in installing the concrete patio, and she designated no evidence to create a genuine issue of material fact as to whether defects in the patio caused personal injury or damage to other property.¹⁷ Accordingly, she has not shown the exception to the economic loss rule applies, and the trial court did not err in granting summary judgment to Washboard on Boehm's negligence claim.

Conclusion

[48] The trial court abused its discretion in striking certain portions of Boehm's designated evidence, and we considered those items in deciding the summary judgment issues. Boehm presented evidence establishing the existence of a genuine issue of material fact as to her breach of contract claim, and we reverse the grant of summary judgment to Washboard on that claim and remand to the trial court for further proceedings. But Boehm did not establish the existence of a genuine issue of material fact as to her negligence claim, and we affirm the grant of summary judgment to Washboard on that claim. Because Boehm may yet prevail on her breach of contract claim, we also reverse summary judgment on the attorney fee count.

[49] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   There is no separate construction agreement in the designated materials.

2.   Boehm also named Property Sure as a defendant in this lawsuit, but Property Sure was later dismissed on its motion.

3.   Boehm did not include her memorandum in response to summary judgment or her response to the motion to strike in her appendix. The purpose of an appendix is “to present the Court with copies ․ of those parts of the Record on Appeal that are necessary for the Court to decide the issues presented.” Ind. Appellate Rule 50(A)(1). In this case, Boehm's responses to Washboard's motions are necessary for us to assess whether Boehm is making arguments for the first time on appeal. We have obtained those documents from the trial court's record through our Odyssey Case Management System but despite our ability to do so, we remind Boehm that, as the appellant, she bears the burden of presenting a record that is complete with respect to the issues raised on appeal. Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998).

4.   We refer to these items by the name Boehm used in her designation of evidence. See Appellant's App. Vol. 2 at 74–75.

5.   The items Washboard did not challenge in the motion to strike are: (1) July 18, 2022 Letter from Defendant's attorney; (2) 35 Brinegar Drive, Punch List (dated February 25, 2022); and (3) Backdated Change Order (signed change order dated August 30, 2021). These items alone, however, do not “set forth specific facts showing that there is a genuine issue for trial,” so we must discuss whether the remaining items were properly stricken. T.R. 56(E).

6.   Boehm claims motions to strike designated evidence are disfavored because Indiana errs on the side of letting cases proceed to trial, citing Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014). She also claims the “trial court's ruling contravened that standard by weighing technical admissibility issues over the substantive evidence of wrongdoing.” Appellant's Br. at 20. Hughley’s language applies to the summary judgment standard itself, not the separate question of what evidence is properly considered in ruling on summary judgment. The requirements of Trial Rule 56(E) are mandatory, and a court considering a motion for summary judgment should consider only information that complies. Zelman, 133 N.E.3d at 248.

7.   Boehm cites Logan as authority for allowing her “to supplement the record to authenticate or correct evidentiary omission.” Appellant's Br. at 27. Logan held a trial court has discretion to permit a party to file materials after the time for responding to summary judgment has passed to supplement timely filed affidavits. 728 N.E.2d at 858 (citing Trial Rule 56(E), which states, the “court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits”). Here, Boehm would not be seeking to supplement her affidavit, but to rehabilitate inadmissible documentary evidence.

8.   Boehm also argues the trial court abused its discretion because it “ignored another principle: some of these documents could have been offered for purposes other than proving the truth of their contents.” Appellant's Br. at 33. She specifically mentions only the appraisal, stating, “[f]or instance, the appraisal report ․ could have been used to show that Boehm became aware of certain defects or lost value, which informed her actions[.]” Id. But Boehm did not raise this in the trial court, and it is not the trial court's role to search for reasons not to strike the material when an objection is made.

9.   Washboard also appears to have misunderstood or misstated the nature of the document in its motion to strike. See supra ¶ 24. But Boehm's counsel should know the evidence designated on behalf of his own client and correct any misconception rather than propagating it.

10.   At the hearing below, Boehm argued “there's a residual exception to the hearsay rule regarding the letter to Defendants.” Tr. Vol. 2 at 13. As her designated evidence included two letters to Washboard, it is unclear whether this argument referred to the June 17, 2022, letter. Regardless, there is no such exception in Indiana. See Holmes, 94 N.E.3d at 725 n.3 (“Indiana has ․ never adopted a residual exception like Federal Rule of Evidence 807, which allows trial judges to exercise discretion to admit certain hearsay evidence.”).

11.   This is, in essence, Boehm's claim as to all the stricken items of designated evidence: that her evidence could “be cured or explained with minimal effort,” calling the deficiencies in her designated evidence “technical admissibility issues.” Id. at 19–20. She does not acknowledge her obligation to present admissible evidence at the summary judgment stage.

12.   Special findings are neither required nor binding in summary judgment proceedings. Akin v. Simons, 180 N.E.3d 366, 372 (Ind. Ct. App. 2021). However, such findings offer valuable insight into the trial court's rationale for its decision and help facilitate our review. Id.

13.   “Emblements” are growing crops. See Dutton v. Int'l Harvester Co., 504 N.E.2d 313, 317 (Ind. Ct. App. 1987), trans. denied.

14.   This explanation of collateral rights dates to at least 1910 in Indiana. See Doty v. Sandusky, etc., Cement Co., 91 N.E. 569, 571 (Ind. App. 1910) (emphasis added). Doty cited an 1853 case from New York for this proposition, but the New York case described collateral rights as those “not connected with the title, possession or quantity of the land.” Carr v. Roach, 9 N.Y. Sup. Ct. (2 Duer) 20 (emphasis added); see, e.g., Diehl v. Hulls, 205 N.E.3d 609, 614–15 (Ohio Ct. App. 2022) (where land installment contract was for sixteen parcels of land but deed was for ten, doctrine of merger-by-deed applied because the quantity or size of property is involved). Whether this difference was a conscious choice by Indiana or an error inadvertently carried forward, it does not affect our decision in this case.

15.   Neither party designated the deed.

16.   Boehm invokes the fraud or mistake exception articulated in Thompson. Boehm's complaint does not allege fraud, but because we reverse on a different exception to the merger-by deed doctrine, we need not address whether there is also a genuine issue of material fact as to this exception.Washboard's overarching argument on summary judgment was that “the doctrine of merger by deed bars Ms. Boehm's breach-of-contract claim,” but within that argument, Washboard pointed to the integration clause in the purchase agreement. Appellant's App. Vol. 2 at 39. The purchase agreement states, “This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties’ [sic] respecting the transaction[.]” Id. at 27 (emphasis added). To the extent this can be considered an independent ground for summary judgment, Boehm's designated evidence as explained above raises in part an issue of whether the parties reached a collateral and independent agreement during and after the construction. Washboard also pointed to the amendment to the purchase agreement and claimed it was an accord and satisfaction. Again, Boehm's designated evidence raises an issue of fact as to whether the parties reached a collateral and independent agreement after the amendment was signed. To the extent Boehm alleges ambiguities in the purchase agreement require parol evidence to resolve, it is not clear interpretation of the purchase agreement is before us.

17.   In her affidavit, Boehm alleged defects in “concrete work,” namely (1) porch concrete overflow onto the foundation “creates an unsightly appearance and potential structural issues” and (2) exposed “[s]teel remnants in seams may rust, weaken the structure, or leave openings for water intrusion.” Appellant's App. Vol. 2 at 108 (emphasis added). These speculative statements do not create a genuine issue of material fact as to whether Washboard's alleged negligence in the concrete work caused damage to other property.

Kenworthy, Judge.

Tavitas, C.J., and Bailey, J., concur.