MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 10 2016, 8:42 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Derick W. Steele DANIEL DUMOULIN, SR. Raquet, Vandenbosch & Steele Cassandra A. Kruse Kokomo, Indiana Gregory L. Noland Emswiller, Williams, Noland & Clarke, P.C. Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Daniel Dumoulin, II, June 10, 2016 Appellant/Cross-Appellee-Intervenor, Court of Appeals Case No. 52A05-1505-DR-500 v. Appeal from the Miami Superior Court Daniel Dumoulin, Sr., The Honorable A. Christopher Appellee/Cross-Appellant-Petitioner, Lee, Special Judge Trial Court Cause No. and 52D02-0901-DR-11
Joan Dumoulin, Appellee-Respondent
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 1 of 15 Case Summary [1] After Daniel Dumoulin, Sr. (“Husband”), filed a petition to dissolve his
marriage to Joan Dumoulin (“Wife”), she moved to have Daniel Dumoulin, II
(“Son”), joined as an indispensable party to answer for his interest in various
real properties. During the course of the proceedings, Husband claimed that
Son owed an outstanding balance on Son’s agreement to purchase a bar called
the Ultimate Place 2B (“the Ultimate”) from Husband and Wife. The trial
court issued an order (“the Money Judgment”) entering judgment in favor of
Husband and Wife on Husband’s claim.
[2] Son appeals the Money Judgment, raising several issues: (1) he argues that the
trial court lacked the authority to determine whether he owed monies to
Husband and Wife because Son was never put on notice that either Husband or
Wife was seeking a monetary judgment against him; (2) the trial court lacked
subject matter jurisdiction because the issue was not ripe for review; (3) the
Statute of Frauds bars Husband and Wife’s recovery on the agreement to
purchase the Ultimate; and (4) the trial court abused its discretion by refusing to
admit Exhibit J.
[3] Husband cross-appeals, arguing that the trial court erred in denying his motion
to correct error and his motion for relief from the trial court’s April 9, 2013
order (“the April 2013 Order”), which determined ownership of various real
estate.
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 2 of 15 [4] We conclude that Son had notice that Husband was claiming that Son owed
money, that the trial court had subject matter jurisdiction, that Son waived the
Statute of Frauds defense, and that the trial court did not abuse its discretion in
refusing to admit Exhibit J. We also conclude that Husband has waived the
issue he raises on cross-appeal. Therefore, we affirm.
Facts and Procedural History [5] Husband and Wife owned and operated the Ultimate, a sports bar in Kokomo.
In 2005, Husband and Wife agreed to transfer the Ultimate to Son, but the
parties vigorously dispute the terms of the agreement (“the Purchase
Agreement”). Son claims that he agreed to pay off various debts in exchange
for the Ultimate. Husband claims that, in addition to assuming various debts,
Son agreed to pay cash for a total purchase price of $2,100,000. The parties do
not dispute that Son assumed operation of the Ultimate in 2005 and has paid all
debts and costs associated with it since its transfer to him.
[6] After Son took over the operations of the Ultimate, its liquor license came up
for renewal. The renewal involved hearings before the Alcohol and Tobacco
Commission (“ATC”), during which both Husband and Son testified under
oath that Son’s purchase price for the Ultimate was $2,100,000. The renewal of
the Ultimate’s liquor license was the subject of Indiana Alcohol & Tobacco
Commission v. Ultimate Place, LLC, No. 34A05-0804-CV-209 (Ind. Ct. App.
Sept. 30, 2008), in which another panel of this Court concluded that “the
evidence reveals that [Son] is responsible for paying $2.1 million for the
business.” Id., slip op. at 6. Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 3 of 15 [7] In January 2009, Husband filed a petition for marriage dissolution. Husband
and Wife owned multiple parcels of real estate, including several on East 50
North (“the E 50 N Properties”). In April 2012, Wife filed a motion to
bifurcate hearing and join indispensable party, averring that certain property
claimed as marital property by Husband was actually titled to Son and asking
the trial court to add Son as a party to the dissolution proceedings and conduct
a separate hearing to determine the marital estate. Following a hearing, the
trial court granted Wife’s motion and ordered Son to be joined as an
indispensable party.
[8] In January 2013, all parties participated in mediation, but they were not
successful in resolving the parties’ interests in the Ultimate or the E 50 N
Properties. All the parties joined in a stipulation in which both Husband and
Wife claimed a partial interest in the Ultimate. Appellant’s App. at 47. Later
that month, a hearing was held to determine whether the disputed properties
should be included or excluded from the marital estate, and Husband, Wife,
and Son appeared. In February 2013, Son filed a motion for leave to reopen the
evidence to submit a Family Settlement Agreement (“FSA”) for his purchase of
the Ultimate to support his version of the Purchase Agreement. The FSA was
only partially executed, having been signed by Husband but not by Wife or
Son. The trial court did not rule on Son’s motion, and it does not appear that
the trial court relied on the FSA in its April 2013 Order. In relevant part, the
April 2013 Order concluded that the Ultimate and several of the E 50 N
Properties were not marital assets. With regard to the Ultimate, the trial court
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 4 of 15 concluded that Son had an oral agreement with Husband and Wife to purchase
the Ultimate and that it was not a marital asset. Id. at 30-32. Significantly, the
trial court also concluded that the payments required under the Purchase
Agreement had not been completed, and that Husband and Wife had a
remaining interest in Son’s promise to pay under the agreement. Id. at 32.
[9] In May 2013, Husband filed a motion to correct error and a motion for relief
from judgment challenging in pertinent part the trial court’s exclusion of the
Ultimate and certain E 50 N Properties from the marital estate. Id. at 33-61.
Son filed a response to Husband’s motions, in which he acknowledged that the
parties’ interests in the Ultimate was the “most hotly disputed issue” and
alleging that Husband and Wife had previously testified regarding their intent to
divest themselves of any interest in the Ultimate and that Husband was “now
seeking to ‘recapture’ the alleged monetary interest in the Ultimate.” Id. at 64.
In September 2013, the trial court held a hearing on the motions.1 In October
2013, the trial court issued an order denying Husband’s motion to correct error
and his motion for relief from judgment with regard to the Ultimate and certain
E 50 N Properties. 2 Id. at 67-68.
[10] In January 2014, Husband filed an accounting concerning rents received and
expenses paid for several rental properties pursuant to a preliminary order
1 The transcript of this hearing is not in the record before us. 2 The trial court granted Husband’s motion to correct error on issues not relevant to this appeal.
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 5 of 15 issued at the onset of the dissolution. At Husband’s request, the trial court
ordered that any objections to Husband’s accounting be filed on or before
March 14, 2014. Wife submitted a written objection, but Son did not.
Husband filed a response to Wife’s objections.
[11] In April 2014, Husband, Wife, and Son attended a mediation session, which
produced a stipulation and a mediator’s report. The parties were still disputing
the purchase price for the Ultimate. Husband claimed that the outstanding
balance due for the purchase of the Ultimate was $1,173,215.86, whereas Wife
claimed that Son owed $137,000. Appellee’s App. at 58. In preparation for the
final hearing, the parties engaged in discovery. In response to Son’s discovery
request, Husband produced exhibits that he intended to submit at the final
hearing showing the outstanding balance for the total purchase price of the
Ultimate. In June 2014, Husband filed a motion in limine seeking to bar Son
from introducing any evidence regarding Husband’s January 2014 accounting
because Son had not filed any objection to it.
[12] On December 10 and 11, 2014, a final hearing on the dissolution was held. The
first day of the hearing was dedicated to presenting evidence on the purchase
price of the Ultimate. Son offered the FSA into evidence without objection.
Tr. at 17-18; Appellant’s App. at 52-61; Ex. AA. On the second day, Wife
attempted to introduce Exhibit J, an accounting of property at 2605 E. 50 N.,
which the trial court had previously determined was not a marital asset and was
owned by Son. Husband objected. The trial court sustained Husband’s
objection, explaining that the evidence was not relevant to the issues before it.
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 6 of 15 Husband testified regarding the ATC hearings, at which he stated under oath
that Son purchased the Ultimate for $2,100,000, and he submitted the transcript
of his ATC testimony. Id. at 165; Petitioner’s Ex. 5. Husband also submitted
the transcript of Son’s testimony at the ATC hearing, which reveals that Son
testified that the purchase price for the Ultimate was $2,100,000. Petitioner’s
Ex. 2.
[13] At the conclusion of the hearing, the trial court granted the dissolution of
marriage, entered the dissolution decree, and took all pending issues under
advisement. In January 2015, Son filed a motion to reconsider the trial court’s
decision not to admit Exhibit J. On April 30, 2015, the trial court issued the
Money Judgment against Son and in favor of Husband and Wife for
$581,004.54 each. The Money Judgment included a memorandum, in which
the trial court explained that it “cannot ignore the prior sworn testimony of
[Husband] and [Son] that the purchase price was 2.1 million dollars,” and that
Husband “concedes that part of that purchase price included the debts that
[Son] has paid thus far, leaving a balance of $1,162,009.08.” Appellant’s App.
at 95. This appeal ensued.
Discussion and Decision
Section 1 – The trial court did not lack authority to issue a monetary judgment. [14] First, Son avers that he was joined as a party to the dissolution action to answer
to his interests in the contested marital estate and was not put on notice by the
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 7 of 15 pleadings that either Husband or Wife was seeking a monetary judgment
against him, and therefore, the trial court lacked authority to issue such an
order. In support, he cites Noblesville Redevelopment Commission v. Noblesville
Associates Ltd. Partnership, 674 N.E.2d 558 (Ind. 1996), in which our supreme
court held that one of the named parties did not receive sufficient notice in the
pleadings. Id. at 564-65. However, Noblesville is distinguishable because the
issue in that case was whether the trial court properly granted a motion for a
judgment on the pleadings.
[15] Here, in contrast, Son has been substantially involved in the dissolution action
for years and was made aware early on that Husband was claiming that Son
had outstanding obligations under the Purchase Agreement. In January 2013,
Son participated in mediation and joined in a stipulation indicating that both
Husband and Wife claimed a partial interest in the Ultimate. Son also
participated in the January 2013 evidentiary hearing to determine ownership of
various properties. In its April 2013 Order, the trial court concluded that Son
had an agreement with Husband and Wife to purchase the Ultimate and it was
not part of the marital estate. The trial court also concluded that the payments
required under the Purchase Agreement had not been completed and that
Husband and Wife had a remaining interest in Son’s promise to pay under the
agreement. Husband filed a motion to correct error claiming that Son agreed to
pay off various debts plus an additional lump sum based on the difference
between the purchase price and the actual amounts paid toward those debts.
Husband’s motion to correct error, filed one and a half years before the final
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 8 of 15 hearing, reveals that Husband was making a claim that Son owed money for
the purchase of the Ultimate. Son participated in another mediation to
determine the purchase price of the Ultimate and the extent of his outstanding
obligations. The first day of the final hearing was dedicated to determining
whether Son owed Husband and Wife money for the purchase of the Ultimate.
Son appeared and disputed the purchase price and whether he owed money to
Husband and Wife. In light of this history, we conclude that Son had notice
that a claim was being asserted against him. 3
Section 2 – The trial court had subject matter jurisdiction. [16] Next, Son asserts that the trial court lacked subject matter jurisdiction because
the issue was not ripe for review.
Subject matter jurisdiction is the power of a court to hear and determine the general class of cases to which the proceedings before it belong. Whether a court has subject matter jurisdiction depends on whether the type of claim advanced by the petitioner falls within the general scope of authority conferred upon the court by constitution or statute. Included within subject matter jurisdiction is whether a claim is ripe for review. Ripeness relates to the degree to which the defined issues in a case are based on actual facts rather than on abstract possibilities, and are capable of being adjudicated on an adequately developed record.
3 Son also argues that the trial court was barred by the doctrine of res judicata based on the April 2013 Order. However, his argument is unavailing because the April 2013 Order was not a final appealable order. See Zaremba v. Nevarez, 898 N.E.2d 459, 463 (Ind. Ct. App. 2008) (“‘For principles of res judicata to apply, there must have been a final judgment on the merits and that judgment must have been entered by a court of competent jurisdiction.’”) (quoting Matter of Sheaffer, 655 N.E.2d 1214, 1217 (Ind. 1995)).
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 9 of 15 Thomas ex rel. Thomas v. Murphy, 918 N.E.2d 656, 662-63 (Ind. Ct. App. 2009)
(citations and quotation marks omitted), trans. denied (2010).
[17] Son contends that the amount of his outstanding obligation under the Purchase
Agreement will not be known until he pays all the obligatory debts under it.
We disagree. The FSA, which Son submitted, required him to pay off the debts
and remit the remaining purchase price within five years. Appellant’s App. at
53. Also, Husband testified that Son agreed to satisfy all obligations for the
purchase of the Ultimate within five years of the initiation of the transaction in
2005 and that the deadline has passed. Tr. at 205. Accordingly, we conclude
that the issue was ripe for review and that the trial court had subject matter
jurisdiction.
Section 3 – Son has waived his Statute of Frauds defense. [18] Son argues that the Statute of Frauds bars Husband and Wife from recovering
under the Purchase Agreement. The Statute of Frauds requires any contract for
the sale of real estate to be in writing. 4 However, contracts for the sale of real
property that do not satisfy the Statute of Frauds are voidable, not void. Fox
Dev., Inc. v. England, 837 N.E.2d 161, 166 (Ind. Ct. App. 2005); see also 14
RICHARD R. POWELL, POWELL ON REAL PROPERTY § 81.02[1][a] (noting that
4 Indiana Code Section 32-21-1-1(b) provides,
A person may not bring any of the following actions unless the promise, contract, or agreement on which the action is based, or a memorandum or note describing the promise, contract, or agreement on which the action is based, is in writing and signed by the party against whom the action is brought or by the party’s authorized agent … (4) An action involving any contract for the sale of land.
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 10 of 15 oral contract to convey real estate may be successful if Statute of Frauds defense
is not raised in pleadings). The Statute of Frauds is an affirmative defense, and
affirmative defenses must be specifically pled. Joyner v. Citifinancial Morts. Co.,
800 N.E.2d 979, 982 (Ind. Ct. App. 2003); Ind. Trial Rule 8(C). Generally an
affirmative defense, including the Statute of Frauds, is waived by failure to raise
it in a timely fashion. See E & L Rental Equip., Inc. v. Wade Constr., Inc., 752
N.E.2d 655, 660 (Ind. Ct. App. 2001) (concluding that E & L waived Statute of
Frauds defense where it failed to include it in its responsive pleading and trial
court properly denied E & L’s motion to amend pleading it filed after both
parties presented their cases-in-chief); Uebelhack Equip., Inc. v. Garrett Bros., Inc.,
408 N.E.2d 136, 140 (Ind. Ct. App. 1980) (concluding that Uebelhack waived
Statute of Frauds defense where it did not raise it until its motion for judgment
on the evidence). To preserve an affirmative defense, the party with the burden
of proving the defense “must either have set forth the defense in a responsive
pleading or show that the defense was litigated by the parties.” Lawshe v. Glen
Park Lumber Co., 176 Ind. App. 344, 347, 375 N.E.2d 275, 277-78 (1978). “It is
axiomatic that such a defense cannot be raised for the first time on appeal.” Id.
[19] Here, Son does not direct us to any portion of the record showing that he
argued to the trial court that the Purchase Agreement was unenforceable
because it violated the Statute of Frauds. 5 In fact, he sought to introduce the
5 Son notes that Husband raised the Statute of Frauds defense in his motion to correct error, but that does not preserve the issue for Son.
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 11 of 15 FSA as early as February of 2013 as written evidence of the Purchase
Agreement, although it appears that the trial court did not consider it in its
April 2013 Order. At the final hearing, no one disputed that there was an
agreement for Son to purchase the Ultimate from Husband and Wife. The only
dispute was as to the purchase price. Son himself introduced the FSA against
Husband as written evidence of the Purchase Agreement in an attempt to
support his version of the terms of the agreement. Accordingly, we conclude
that Son has waived his Statute of Frauds defense.
Section 4 – The trial court did not abuse its discretion in refusing to admit Exhibit J. [20] Son challenges the trial court’s refusal to admit Exhibit J. We will reverse the
trial court’s decision to admit or exclude evidence only for an abuse of
discretion. Estate of Carter v. Szymczak, 951 N.E.2d 1, 5 (Ind. Ct. App. 2011),
trans. denied. An abuse of discretion occurs when the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before it. Id.
[21] Exhibit J is an accounting prepared by Wife regarding the collection of rental
payments on property at 2605 E. 50 N. In its April 2013 Order, the trial court
found that the 2605 E. 50 N. property was not a marital asset and was owned
by Son. Son argues that on the first day of the final hearing “everyone agreed
to allow Son to introduce evidence concerning the value of properties and
monies owed to him through Wife’s testimony.” Appellant’s Br. at 13. Son’s
characterization is not a fair reflection of what occurred. On the first day of the
final hearing, Son’s counsel asked Wife whether she had knowledge regarding
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 12 of 15 Son’s financial situation relating to properties subject to the marital estate and
whether she was going to deal with those issues the following day. Tr. at 27.
At the end of the day, Son’s counsel indicated to the trial court that there were
some accounting issues involving Son and that it was his understanding that
they would be addressed on the second day. Id. at 228. The trial court simply
responded, “Yes.” Id. Husband did not agree to the admission of any specific
evidence and could not reasonably have been expected to object to evidence
before learning its exact nature.
[22] On the second day, Wife attempted to introduce Exhibit J. Husband objected.
The trial court asked Wife’s counsel how Exhibit J was “going to help [it] make
a decision here today.” Id. at 523. Wife’s counsel responded that Wife “made
an accounting as to what she thinks the balance is due to her son.” Id. The trial
court sustained Husband’s objection, explaining that it was refusing to admit
the evidence because it was “getting a little off field on theories.” Id. The trial
court excluded Exhibit J because it was not relevant to the issues that were
currently before the court. We cannot say that the trial court abused its
discretion in refusing to admit Exhibit J.
Section 5 – Husband has waived the issue raised in his cross- appeal. [23] Husband contends that the trial court erred by denying his motion to correct
error and his motion for relief from judgment. Specifically, he argues that the
trial court erred in its April 2013 Order by excluding 2653 and 2625 of the E 50
N properties from the marital estate. In its April 2013 Order, the trial court
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 13 of 15 concluded that “2653 E. 50 N. [was] conveyed by [Son] to John and Janet
Corwell for good consideration and is not a marital asset,” and “2625 E. 50 N.
is presently titled to [W]ife which [Son] built a house and transferred to [W]ife.
She mortgaged and is paying for the property. Husband admits he made no
payments on the real estate.” Appellant’s App. at 31.
[24] In his appellee/cross-appellant’s brief, Husband’s argument challenging the trial
court’s decision relies almost entirely on citations to his motion to correct error.
Husband’s motion to correct error is not evidence in support of his argument.
The remaining few citations in his argument are to the transcript of the final
hearing rather than the January 2013 hearing upon which the April 2013 Order
is based. In his appellee/cross-appellant’s reply brief, Husband attempts to
remedy the deficiency by repeating his argument with citations to the transcript
of the January 2013 hearing. Simultaneous with the filing of his appellee/cross-
appellant’s reply brief, Husband submitted notice to this Court that he had filed
in the trial court a supplemental transcript request for the court reporter to
prepare the transcript of the January 2013 hearing. However, the case is fully
briefed, the January 2013 transcript is not in the record before us, and there has
been no request to this Court to hold the appeal in abeyance.
[25] A party’s argument “must contain the contentions of the appellant on the issues
presented, supported by cogent reasoning. Each contention must be supported
by citations to the authorities, statutes, and the Appendix or parts of the Record
on Appeal relied on.” Ind. Appellate Rule 46(A)(8)(a). The purpose of
Appellate Rule 46 “is to aid and expedite review, and to relieve the appellate
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 14 of 15 court of the burden of searching the record and briefing the case.” Thacker v.
Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). “It is well settled that we
will not consider an appellant’s assertion on appeal when he has not presented
cogent argument supported by authority and references to the record as
required by the rules.” Id. “If we were to address such arguments, we would be
forced to abdicate our role as an impartial tribunal and would instead become
an advocate for one of the parties. This, clearly, we cannot do.” Shepherd v.
Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). Therefore, we conclude that
Husband has waived this issue for failing to present a cogent argument.
[26] Based on the foregoing, we affirm the trial court in all respects.
[27] Affirmed.
Najam, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-500 | June 10, 2016 Page 15 of 15