ANDERSON v. MINK (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Following a jury trial, Ethan Anderson (“Anderson”), pro se, appeals the trial court's judgment in favor of Amy Mink (“Mink”). Anderson argues that the trial court abused its discretion when it: (1) instructed the jury; and (2) awarded Mink her attorney fees. Concluding that the trial court did not abuse its discretion when it: (1) instructed the jury; and (2) awarded Mink her attorney fees, we affirm the trial court's judgment.

[2] We affirm.

Issues

1. Whether the trial court abused its discretion when it instructed the jury.

2. Whether the trial court abused its discretion when it awarded Mink her attorney fees.

Facts

[3] In 2017, Anderson became involved in real estate investing. By July 2019, Anderson had personally purchased five properties in Indiana and, through an LLC in which he was a partner, purchased another fifteen properties. All of the properties were residential properties, and Anderson typically used these properties as rental properties. The LLC had a website that asked potential sellers to contact it if they were selling their properties.

[4] In July 2019, Kendra Colberg (“Colberg”) contacted Anderson using the LLC website. Colberg offered to sell a property on Lee Drive in Indianapolis (“the Lee Drive property”) to Anderson. Anderson and Colberg entered into a purchase agreement (“the 2019 real estate contract”), which provided that Anderson would buy the Lee Drive property from Colberg in “as is” condition. (Appellant's App. Vol. 2 at 66). In the 2019 real estate contract, the box next to “[b]uyer acknowledges receipt and execution of a Seller's Residential Real Estate Sales Disclosure Form” was checked. (Appellee's App. Vol. 2 at 12). Colberg signed the 2019 real estate contract and included a real estate sales disclosure form (“the 2019 disclosure form”). On the 2019 disclosure form, Colberg checked the box for “defective” in the field for septic and holding tank/septic mound. (Appellee App. Vol. 2 at 8). Colberg also included an additional comment that the home was “in need of substantial repairs, which [was] reflect[ed] in the price.” (Appellee's App. Vol. 2 at 9).

[5] Colberg, in a July 2019 email addressed to Anderson, stated: “[a]s discussed the items on the seller's disclosure were marked as defective, because they are being sold as is.” (Appellee's App. Vol. 2 at 7). Attached to that email was Colberg's signed copy of the 2019 real estate contract and the 2019 sales disclosure form.

[6] After Anderson had purchased the Lee Drive property from Colberg, he hired a contractor to prepare the property so that he could rent it to a tenant. A tenant rented the Lee Drive property for over a year. After that tenant left, Anderson hired a contractor to renovate the Lee Drive property once more to prepare it to be sold.

[7] In July 2021, Anderson hired a real estate agent and placed the Lee Drive property for sale. As part of that process, Anderson completed a seller's real estate sales disclosure form (“the 2021 disclosure form”). Anderson also completed a utility information form (“the utility form”). Anderson completed these forms online and submitted them to the real estate agent. The 2021 disclosure form contained fields for “septic field/bed” and “septic and holding tank/septic mound[.]” (Tr. Vol. 4 at 145). For the field labeled septic field/bed, Anderson checked the box “do not know,” and for the field labeled septic and holding tank/septic mound, Anderson “answered none/not included rented.” (Tr. Vol. 4 at 145). Additionally, the 2021 disclosure form contained a question that asked “[a]re the structures connected to a public sewer system[,]” and Anderson checked the box for yes. (Appellant's App. Vol. 2 at 71). The utility form contained a question that asked “[a]re you on well and/or septic[,]” and Anderson checked the box for no. (Appellant's App. Vol. 2 at 74).

[8] Mink, who had been interested in buying a property in Indiana, placed an offer on the Lee Drive property. Anderson and Mink entered into a real estate contract (“the 2021 real estate contract”). The 2021 real estate contract contained a provision (“the attorney fee provision”) that provided as follows:

V. ATTORNEY[ ] FEES: Any party to this Agreement who is the prevailing party in any legal or equitable proceeding against any other party brought under or with relation to the Agreement or transaction shall be additionally entitled to recover court costs and reasonable attorney[ ] fees from the non-prevailing party.

(Appellant's App. Vol. 2 at 68). Mink ordered an inspection of the Lee Drive property but did not order a separate septic inspection because she had believed that “there was no septic system.” (Tr. Vol. 3 at 104).

[9] Mink closed on and took possession of the Lee Drive property in August 2021. At the closing, Mink was provided with the utility form. In the spring of 2022, Mink noticed “standing stuff in the backyard” and a “horrible odor[.]” (Tr. Vol. 3 at 107). Eventually, Mink's bathroom flooded with sewage. Additionally, Mink's dogs dug up the lid to the septic tank, which had been buried under the dirt in her backyard. Mink hired someone who determined that the Lee Drive property had a septic system and that it was defective.

[10] In September 2023, Mink filed a complaint against Anderson, and Mink amended her complaint in March 2024. In her amended complaint, Mink alleged three claims against Anderson: (1) a claim under the Indiana Real Estate Sales Disclosure Act (“the sales disclosure claim”); (2) a claim under common law fraud (“the utility form fraud claim”);¹ and (3) a claim under civil deception (“the criminal fraud claim”). Mink also requested reasonable attorney fees as provided in the attorney fee provision of the 2021 real estate contract.

[11] In April 2025, the trial court held a three-day jury trial. Mink testified that she had looked at the 2021 disclosure form and that “it [had been] a relief” to know that the Lee Drive property was not on a septic system. (Tr. Vol. 3 at 102). Mink testified that a previous home where she had lived had had a septic system and that that experience had been “horrible” because the septic system had not been operable. (Tr. Vol. 3 at 102). Mink also testified that she “would not have purchased the [Lee Drive property]” if she had known that it had a septic system. (Tr. Vol. 3 at 105). Further, Mink testified to and provided estimates to replace the septic system, including an estimate of $60,000.

[12] Anderson testified that he had not reviewed the 2019 disclosure form until he was “preparing documents” during discovery for this case. (Tr. Vol. 4 at 122). Additionally, Anderson testified that when he had filled out the 2021 disclosure form, he had believed that the Lee Drive property was on “public sewer.” (Tr. Vol. 4 at 144). Anderson further testified that when he had filled out the utility form, he had believed that the Lee Drive property “was connected to public water and public sewer[.]” (Tr. Vol. 4 at 152). Anderson explained that the property cards from the Marion County Assessor's Office also listed the Lee Drive property as connected to a public sewer in September 2020 and August 2021. Anderson also testified that, before he had listed the Lee Drive property for sale in July 2021, he had visited the property seven times. When asked if he had noticed anything wrong with the plumbing or bathroom at the Lee Drive property during his visits, Anderson responded that he had not. When asked if he had seen anything in the front or back yard that would have indicated to him that the Lee Drive property was on a septic system, Anderson responded that he had not.

[13] On cross-examination, Anderson testified that he “[did not] recall” any conversations with Colberg about selling the Lee Drive property. (Tr. Vol. 4 at 166). Additionally, Anderson testified that he did not recall reviewing any of the 2019 records when he had listed the Lee Drive property for sale in 2021. Anderson also testified that he had no “recollection of whether [he had] or [had] not read” the email from Colberg in 2019. (Tr. Vol. 4 at 173).

[14] At the end of the second day of trial, the trial court asked Anderson if he had any corrections or omissions to the proposed final jury instructions, and Anderson replied that he did not. The next morning, before closing arguments, the parties discussed the proposed final jury instructions with the trial court. The trial court asked Anderson if he approved of the final instructions, and Anderson did not object to jury instruction 21 (“jury instruction 21”). Jury instruction 21 provided:

JURY INSTRUCTION 21

To establish a case for constructive fraud, it must be shown that Ethan Anderson was obligated to deal fairly with Amy Mink if a special relationship existed between them. A “special relationship” may exist between a buyer and a seller of property if one of them possesses knowledge not possessed by the other and thereby enjoys a position of superiority over the other. To recover damages for constructive fraud involving the Utility Form, Amy Mink must prove by the greater weight of the evidence that:

(1) A special relationship existed between Ethan Anderson and Amy Mink;

(2) Ethan Anderson violated the obligation to deal fairly by misrepresenting material past or present facts or by remaining silent when he had an obligation to speak;

(3) Amy Mink justifiably relied on Ethan Anderson's representations or silence;

(4) Ethan Anderson gained an advantage at the expense of Amy Mink; and

(5) Amy Mink was damaged as a result.

To recover damages from Ethan Anderson, Amy Mink does not need to prove that Ethan Anderson was dishonest or intended to deceive Amy Mink.

(Appellant's App. Vol. 2 at 28).

[15] The jury found in favor of Mink on her utility form fraud claim and awarded her $60,000 in damages. In addition, the jury found in favor of Anderson on the sales disclosure claim and the criminal fraud claim.

[16] Thereafter, the trial court issued an order and, pursuant to the jury's verdict, entered judgment in favor of Mink on her utility form fraud claim in the amount of $60,000. Additionally, the trial court held a hearing on the parties’ request for attorney fees. The trial court determined that Mink was the prevailing party, as provided in the attorney fee provision of the 2021 real estate contract, and awarded her $79,148.19 in attorney fees.

[17] Anderson now appeals.

Decision

[18] At the outset, we note that Anderson has chosen to proceed pro se.² It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016), reh'g denied. Thus, pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. Id. at 983-84. “These consequences include waiver for failure to present cogent arguments on appeal.” Id. at 984. “We will not become an advocate for a party, nor will we address arguments which are either inappropriate, too poorly developed or improperly expressed to be understood.” Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind. Ct. App. 2021) (internal quotation marks omitted).

[19] Anderson argues that the trial court abused its discretion when it: (1) instructed the jury; and (2) awarded Mink her attorney fees. We address each of Anderson's contentions in turn.

1. Jury Instruction

[20] Anderson first argues that the trial court abused its discretion when it instructed the jury on jury instruction 21, which related to the utility form fraud claim. However, our review of the record reveals that Anderson did not object to jury instruction 21 at trial. Specifically, at the end of the second day of trial, the trial court asked Anderson if he had any corrections or omissions to the final instructions and he replied that he did not. Then, the next morning, the trial court again asked Anderson if he approved of the final instructions, and Anderson did not object to jury instruction 21. Indeed, at no point during the trial did Anderson object to jury instruction 21. Thus, he has waived review of this issue on appeal.³ See Jamrosz v. Resource Benefits, Inc., 839 N.E.2d 746, 761 (Ind. Ct. App. 2005) (holding that a failure to object to an instruction given at trial waives review of that instruction on appeal), trans. denied. See also Trial Rule 51(C) (“No party may claim as error the giving of an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”). Thus, Anderson has waived any challenge to jury instruction 21 on appeal.⁴

2. Attorney Fees

[21] Anderson also argues that the trial court abused its discretion when it awarded Mink her attorney fees under the attorney fee provision of the 2021 real estate contract. “When reviewing an award or denial of attorney fees, we note that the trial court is empowered to exercise its sound discretion, and any successful challenge to its determination must demonstrate an abuse thereof.” Delgado v. Boyles, 922 N.E.2d 1267, 1270 (Ind. Ct. App. 2010), reh'g denied, trans. denied. We will find an abuse of discretion if “the trial court's decision is clearly against the logic and effect of the facts and circumstances before it.” Id.

[22] Parties to litigation generally pay their own attorney fees but may agree by contract to do otherwise. Reuille v. E.E. Brandenberger Const., Inc., 888 N.E.2d 770, 771 (Ind. 2008). Where, as here, parties have executed a contractual provision agreeing to pay attorney fees, such an agreement is enforceable according to its terms unless the contract conflicts with law or public policy. Id.

[23] Here, the trial court awarded Mink her attorney fees under the attorney fee provision of the 2021 real estate contract. Thus, the issue before our Court is one of contract interpretation. “The goal of contract interpretation is to ascertain and give effect to the parties’ intent as by the language of the agreement.” Delgado, 922 N.E.2d at 1270. Clear and unambiguous language “must be given its plain and ordinary meaning.” Reuille, 888 N.E.2d at 771.

[24] Here, the attorney fee provision of the 2021 real estate contract provided that:

V. ATTORNEY[ ] FEES: Any party to this Agreement who is the prevailing party in any legal or equitable proceeding against any other party brought under or with relation to the Agreement or transaction shall be additionally entitled to recover court costs and reasonable attorney[ ] fees from the non-prevailing party.

(Appellant's App. Vol. 2 at 68) (emphasis added).

[25] The crux of Anderson's argument is that Mink's utility form fraud claim was a tort claim and not a contract claim brought under the 2021 real estate contract, and therefore, she is not a prevailing party under the 2021 real estate contract. However, Anderson provides no cogent argument pointing to any cases or authorities that support this claim. Thus, he has waived the argument on appeal. See Ind. Appellate Rule 46(A)(8)(a).⁵

[26] Waiver notwithstanding, we conclude that the 2021 real estate contract makes no distinction between contract or tort claims. Indeed, the 2021 real estate contract clearly states that it covers “any legal or equitable proceeding ․ brought under or with relation to the Agreement or transaction[.]” (Appellant's App. Vol. 2 at 68). Mink's utility form fraud claim, which related to the transaction, is certainly covered in this language. Further, Mink was the prevailing party because the jury ruled in favor of Mink and awarded her $60,000 on her utility form fraud claim. See Reuille, 888 N.E.2d at 771 (noting that a prevailing party is “[t]he one in whose favor the decision or verdict is rendered and judgment entered”) (citing Black's Law Dictionary). Thus, the trial court did not abuse its discretion when it awarded Mink her attorney fees under the attorney fee provision of the 2021 real estate contract.

Affirmed.⁶

FOOTNOTES

1.   Although the complaint did not state the utility form as the basis of this claim, the parties understood and consented to the fact that the utility form was the basis of this claim. Thus, this claim became a claim of actual or constructive fraud based on the utility form

2.   Anderson testified that he had “graduated in 2006” from law school and “worked at a law firm from ․ 2008 to 2010.” (Tr. Vol. 4 at 106). Anderson also testified that his Washington state law license “probably lapsed in like 2013 or something” and that he never had a law license in Indiana. (Tr. Vol. 4 at 107).

3.   Anderson argues that he has preserved this issue on appeal because he had, before a pretrial conference, filed and tendered what he asserts was a correct jury instruction, which was a proposed instruction on constructive fraud related to the sales disclosure claim. He also asserts that he had “objected to [jury instruction 21] at the final-instruction conference, as reflected in the record to be supplemented if necessary.” (Anderson's Br. 7). Anderson has not cited to anything in the record before us to show that he objected to the challenged jury instruction 21.

4.   Anderson also waived this argument because he has violated Appellate Rule 46. Specifically, we note that at no point in his brief does Anderson set forth the actual text of jury instruction 21 that he attempts to challenge on appeal, nor does he set forth an objection made at trial. His failure to set forth the challenged instruction and any specific objection verbatim is a violation of Appellate Rule 46(A)(8)(e), which provides that “[w]hen error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto.” See also Est. of Dyer v. Doyle, 870 N.E.2d 573, 581 (Ind. Ct. App. 2007) (noting that an appellant waives an argument challenging a jury instruction by failing to comply with Appellate Rule 46(A)(8)(e)), trans. denied.

5.   We note that many of Anderson's citations to cases are for propositions that those cases do not support. Specifically, Anderson cites to Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908, 914 (Ind. 2017) for the proposition that Indiana courts routinely resolve pure legal questions, such as the interpretation of a contract's fee-shifting provision, even when “briefing is imperfect.” (Appellant's Reply Br. 10). Although this case deals with a contract, we find nothing in the case to support Anderson's proposition. Further, Anderson cites to Dreaded Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1273-74 (Ind. 2009) for the proposition that “Indiana courts require that a fee award under a contractual provision be based on success under the contract.” (Anderson's Br. 9). But, we find nothing in this case supporting this proposition. Anderson also cites to Dempsey v. Carter, 797 N.E.2d 268, 275 (Ind. Ct. App. 2003), trans. denied, for the proposition that “[t]he parties did not agree to fee-shifting for tort claims, and courts may not rewrite their contract to add such terms.” (Anderson's Reply Br. 9). Although Dempsey is a case involving an attorney fee issue, we find nothing on page 275 to support Anderson's contention. Anderson cites to Schoettmer v. Wright, 992 N.E.2d 702, 709 (Ind. 2013) for the proposition that “fee-shifting clauses cannot be expanded by interpretive stretch.” (Appellant's Reply Br. 9). But, the pinpoint cite Anderson provides us leads to a discussion of equitable estoppel and does not support his proposition.

6.   In the conclusion of her appellate brief, Mink also requests appellate attorney fees under the attorney fee provision of the 2021 real estate contract. Specifically, she cites to Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d 995, 1010 (Ind. Ct. App. 2015). In that case, we stated that “[w]e have previously held that when a contract provision provides that attorney fees are recoverable, appellate attorney fees may also be awarded.” Id. at 1010. Here, we exercise our discretion and decline to award appellate attorney fees.

Pyle, Judge.

Vaidik, J., and Mathias, J., concur.