The 487 Broadway Company, LLC v. Kimberly K. Robinson

• Court: Indiana Court of Appeals
• Decided: April 23, 2020
• Docket: 19A-PL-1499
• Status: Published

Opinion

FILED Apr 23 2020, 9:04 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES MacArthur Drake Rinzer Williams, III Gary, Indiana Gary, Indiana

IN THE COURT OF APPEALS OF INDIANA

The 487 Broadway Company, April 23, 2020 LLC, Court of Appeals Case No. Appellant-Plaintiff, 19A-PL-1499 Appeal from the Lake Superior v. Court The Honorable Thomas W. Kimberly K. Robinson, Webber, Judge Pro Tempore Individually and in her Official Trial Court Cause No. Capacity as Calumet Township 45D04-1812-PL-565 Trustee, and Carol Ann Seaton, Individually and in her Official Capacity as an Employee of the Township Trustee as Township Annex Building Manager, Calumet Township of Lake County, and the Calumet Township Board, including its Members, in the Official Capacities, all Jointly and Severally, Appellees-Defendants.

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 1 of 14 Najam, Judge.

Statement of the Case [1] The 487 Broadway Company, LLC (“487 Broadway”) appeals the trial court’s

grant of summary judgment in favor of Kimberly K. Robinson, Carol Ann

Seaton, Calumet Township of Lake County, and the Calumet Township Board

(collectively, “the Township”) on 487 Broadway’s complaint, which alleged

negligence and breach of contract. 487 Broadway raises one dispositive issue

for our review, namely, whether the trial court erred when it entered summary

judgment in favor of the Township.

[2] We reverse and remand with instructions.

Facts and Procedural History [3] In 2016, the Township sought a purchaser for a building it owned. The

Township issued a notice in which it invited interested parties to submit bids for

the property, which the Township was selling “as is.” Appellant’s App. Vol. II

at 99 (emphasis removed). 487 Broadway successfully bid on the property and

agreed to pay $72,100. 487 Broadway then paid the purchase price in full, and

the parties scheduled a closing date for January 4, 2017.

[4] After 487 Broadway had paid for the property but prior to the closing date, the

Township removed lighted signs that had been affixed to the exterior of the

building. The Township also removed pictures and artifacts that had been

secured to interior walls. 487 Broadway complained to the Township about

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 2 of 14 those changes in the condition of the property. The Township denied any

wrongdoing, and the parties proceeded to close as scheduled.

[5] On December 10, 2018, 487 Broadway filed a complaint in the trial court in

which it alleged that the Township had “caused property damage” to the

exterior of the building by “tearing . . . down and remov[ing] large, electrically

lighted signs,” which caused the building “to look blighted, vandalized, and

vacated” and interfered with 487 Broadway’s ability to “immediately rent or

attract renters” to the building. Id. at 37. 487 Broadway further alleged that the

Township had removed “historical pictures and artifacts” that were “affixed to

the inside walls of the Building,” which pictures and artifacts 487 Broadway

asserted were fixtures that were part of the building it had purchased. Id. Based

on that conduct, 487 Broadway asserted that the Township was negligent and

that the Township had breached the terms of the contract.

[6] On February 14, 2019, the Township filed a motion to dismiss 487 Broadway’s

complaint pursuant to Indiana Trial Rule 12(B)(6) and a corresponding

memorandum in support of that motion. As to 487 Broadway’s negligence

claim, the Township asserted that, since 487 Broadway had closed on the

property knowing the current condition of the signs, “it accepted the property in

its present condition and waived any issues it may have had” concerning the

signs. Id. at 47. The Township also asserted that it had removed only the

inserts from the signs and that its act of removing the inserts did not cause any

damage. The Township further alleged that it had not been negligent when it

removed the pictures and artifacts from inside the building because those items

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 3 of 14 were the personal property of the Township and, as such, it did not owe a duty

to 487 Broadway to refrain from removing those items. And based on its

assertions that it did not cause any damage when it removed the inserts from

the signs and that the items from the interior of the building were personal

property and not fixtures, the Township also asserted that it did not breach the

contract. In support of its motion to dismiss, the Township submitted several

exhibits, which included receipts for 487 Broadway’s payment of the purchase

price, the warranty deed that conveyed the real estate to 487 Broadway, the

settlement statement, and the sales disclosure form.

[7] Thereafter, on March 22, the trial court issued an order in which it informed the

parties that it would consider the Township’s motion to dismiss as a motion for

summary judgment, and the court gave 487 Broadway twenty days to file a

reply. Twenty-one days later, on April 12, 487 Broadway filed a motion to stay

the trial court’s treatment of the Township’s motion to dismiss as a motion for

summary judgment pending discovery. In that motion, 487 Broadway asserted

that it needed additional time in order to conduct discovery so that it could

present facts in opposition to the Township’s motion. 487 Broadway also

asserted that the Township’s motion “contains no designation of undisputed

facts[.]” Id. at 68. The trial court found that nothing in 487 Broadway’s

“response” refuted the facts set out in the Township’s motion and

corresponding memorandum of law. Id. at 13. Accordingly, on April 16, the

court granted the Township’s motion for summary judgment without a hearing.

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 4 of 14 [8] 487 Broadway then filed a motion to correct error in which it asserted that the

trial court had erred when it granted summary judgment in favor of the

Township. In that motion, 487 Broadway alleged in part that the court had

erred when it gave 487 Broadway only twenty days to respond to the

Township’s motion for summary judgment even though Trial Rule 56(C) and

the Lake County Local Rules provide that a non-movant for summary

judgment shall have thirty days to respond. 487 Broadway also maintained that

the historical artifacts and pictures were fixtures, not personal property, and,

thus, that the Township had no right to remove them. And 487 Broadway

asserted that the Township had caused damage to the building when it “ripped”

the exterior sign from the wall. Id. at 82. In support of its motion to correct

error, 487 Broadway included the affidavit of Janice Carman, a managing

partner of 487 Broadway, in which Carman stated that the pictures and artifacts

had been “affixed and permanently attached” to the interior walls. Id. at 84.

[9] The trial court held a hearing on 487 Broadway’s motion to correct error.

Following that hearing, the trial court issued findings and conclusions in which

it denied 487 Broadway’s motion. 487 Broadway then filed a motion to

reconsider and to vacate the order denying the motion to correct error. In

support of that motion, 487 Broadway included the affidavit of James Dungy,

the former contractor who had installed the pictures and artifacts in the

building. In his affidavit, Dungy stated that, when he affixed the items to the

walls of the building, he “intended that the pictures and artifacts not be

removed from where [he] attached them and that they remain as part of the

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 5 of 14 Building itself.” Id. at 121. The trial court found that Dungy’s affidavit “does

not provide a sufficient basis for the Court to reconsider” its prior orders and

denied 487 Broadway’s motion to reconsider. Id. at 34. This appeal ensued. 1

Discussion and Decision [10] 487 Broadway appeals the trial court’s denial of its motion to correct error. As

this Court has previously explained:

We review the grant or denial of a Trial Rule 59 motion to correct error under an abuse of discretion standard. On appeal, we will not find an abuse of discretion unless the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it or is contrary to law.

Spaulding v. Cook, 89 N.E.3d 413, 420 (Ind. Ct. App. 2017) (internal citations

omitted).

[11] Further, upon reviewing a motion to correct error, this Court also considers the

standard of review for the underlying ruling. Luxury Townhomes, LLC v.

McKinley Properties, Inc., 992 N.E.2d 810, 815 (Ind. Ct. App. 2013). Our

standard of review for summary judgment appeals is well settled. The Indiana

Supreme Court has explained that

[w]e review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in

1 487 Broadway timely filed its notice of appeal within thirty days after the court denied its motion to correct error.

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 6 of 14 favor of . . . the non-moving parties, summary judgment is appropriate ‘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 judgment as a matter of law.’” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 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.” Id. (internal citations omitted).

The initial burden is on the summary-judgment movant to “demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue,” at which point the burden shifts to the non- movant to “come forward with contrary evidence” showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted). And “[a]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court’s decision to ensure that he was not improperly denied his day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some

alterations original to Hughley).

[12] On appeal, 487 Broadway asserts that the trial court erred when it granted

summary judgment in favor of the Township because the trial court gave 487

Broadway only twenty days to respond to the Township’s motion for summary

judgment and because the Township did not designate any admissible evidence

in support of its motion. We address each argument in turn.

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 7 of 14 Time to Respond to Motion for Summary Judgment

[13] 487 Broadway asserts that the trial court erred when it entered summary

judgment in favor of the Township because the court gave 487 Broadway only

twenty days rather than thirty days to respond to the Township’s motion. And

487 Broadway asserts that that irregularity prevented 487 Broadway from

“having its day in court.” Appellant’s Br. at 15. In other words, 487 Broadway

maintains that the court improperly limited its time to respond and designate

evidence in opposition to the Township’s motion for summary judgment. We

must agree.

[14] Here, the Township filed a motion to dismiss pursuant to Trial Rule 12(B)(6).

In support of that motion, the Township submitted several exhibits, which the

trial court did not exclude. Rather, the court explicitly relied on those exhibits

when it considered the Township’s motion. Accordingly, the court properly

treated the Township’s motion to dismiss as a motion for summary judgment.

See Ind. Trial Rule 12(B). At that point, the trial court was required to dispose

of the motion as provided in Trial Rule 56. See id.

[15] Under Rule 56(C), “[a]n adverse party shall have thirty (30) days after service of

the motion to serve a response and any opposing affidavits.” (Emphasis

added.) Our Supreme Court has made clear that the Indiana Trial Rules

impose a bright-line rule in summary judgment proceedings. See State ex rel. Hill

v. Jones-Elliott, __N.E.3d__, No. 19A-PL-588, 2020 WL 762535, at *1 (Ind. Ct.

App. Feb. 17, 2020) (quoting Mitchell v. 10th and The Bypass, LLC, 3 N.E.3d 967,

973 (Ind. 2014)), not yet certified. But the trial court did not give 487 Broadway Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 8 of 14 thirty days to respond. Rather, in its March 22, 2019, order notifying the

parties that it would treat the motion to dismiss as a motion for summary

judgment, the court allowed 487 Broadway only twenty days to file its response

and any supporting evidence. Under Rule 56(C), the trial court did not have

the authority to shorten 487 Broadway’s response time to less than thirty days. 2

[16] In addition, the trial court ruled on the Township’s motion for summary

judgment on April 16, only twenty-five days after the court had issued its order

that the Township’s motion to dismiss would be considered a motion for

summary judgment. In other words, not only did the trial court shorten 487

Broadway’s response time to less than thirty days, it also ruled on the

Township’s motion before the thirty-day response period to which 487

Broadway was entitled had expired.

[17] On April 12, 487 Broadway filed a motion to stay the court’s treatment of the

motion to dismiss as one for summary judgment, stating that the Township’s

motion to dismiss was “substantively and procedurally deficient” and “devoid

of grounds” for either a 12(B)(6) dismissal or a summary judgment. Appellant’s

App. Vol. II at 67. In its motion, 487 Broadway requested additional time to

conduct discovery. Specifically, 487 Broadway stated that it was unable to

present “facts essential to justify its opposition” to the Township’s motion to

2 Indiana Trial Rule 56(I) provides that a court may alter any time limit set forth in Rule 56, but the court may only do so upon motion made within the applicable time limit. Here, there was no motion made to shorten the time limit.

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 9 of 14 dismiss without being granted additional time. Appellant’s App. Vol. II at 67-

68. On its face, 487 Broadway’s motion was a Trial Rule 56(I) motion for

additional time to respond, which 487 Broadway made within the applicable

thirty-day time limit.

[18] While the purpose of summary judgment is to quickly resolve disputes in which

there are no genuine issues of material fact, Ka v. City of Indianapolis, 954

N.E.2d 974, 976-77 (Ind. Ct. App. 2011), this Court has previously stated that it

“‘is generally improper to grant summary judgment when requests for discovery

are pending.’” Smith v. Taulman, 20 N.E.3d 555, 563 (Ind. Ct. App. 2014)

(quoting Mut. Sec. Life Ins. Co. v. Fidelity & Deposit Co, 659 N.E.2d 1096, 1103

(Ind. Ct. App. 1995)) (emphasis removed). Here, the court misconstrued 487

Broadway’s motion to stay and for additional time as a Trial Rule 56(C)

“response” by a non-movant and did not rule on the motion. Appellant’s App.

Vol. II at 13. Instead, the court entered summary judgment in favor of the

Township four days after 487 Broadway had filed its motion to stay and for

additional time.

[19] Because the court allowed 487 Broadway only twenty days to respond and

because the court did not rule on 487 Broadway’s motion to stay and for

additional time, the trial court erred when it entered summary judgment for the

Township without having allowed 487 Broadway thirty days to respond as

provided in Trial Rule 56(C) and without having ruled on its request for

additional time to conduct discovery.

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 10 of 14 Exhibits in Support of Motion for Summary Judgment

[20] Since it may be an issue on remand, we next address 487 Broadway’s assertion

that the court erred when it entered summary judgment in favor of the

Township because the Township’s motion for summary judgment “did not

meet the Rule 56(C) requirements.” Appellant’s App. Vol. II at 78.

Specifically, 487 Broadway asserts that the Township did not designate any

“affidavits or other designated documents which would be admissible under the

Indiana Rules of Evidence” to “establish that there is no genuine issue of

material fact and that judgment is proper for [the Township] as a matter of

law[.]” Appellant’s Br. at 13.

[21] Indiana Trial Rule 56 permits parties to submit affidavits and evidence in

support of their motions for summary judgment. That rule states:

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. 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.

Ind. Trial Rule 56(E). “Thus, in ruling on a motion for summary judgment, the

trial court will consider only properly designated evidence which would be

admissible at trial.” Zelman v. Capital One Bank (USA) N.A., 133 N.E.3d 244,

248 (Ind. Ct. App. 2019). “Unsworn statements and unverified exhibits do not

qualify as proper Rule 56 evidence.” Seth v. Midland Funding, LLC, 997 N.E.2d

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 11 of 14 1139, 1141 (Ind. Ct. App. 2013). Further, neither arguments of counsel nor

allegations in memoranda qualify as evidentiary material for purposes of a

motion for summary judgment. McCullough v. CitiMortgage, Inc., 70 N.E.3d 820,

825 (Ind. 2017).

[22] On appeal, 487 Broadway maintains that the only evidence the Township

designated consisted of several exhibits, all of which were unverified. And 487

Broadway contends that, because the Township did not designate any verified

exhibits in support of its motion, the Township did not meet its burden as

summary judgment movant to show the absence of any genuine issue of

material fact. We must agree with 487 Broadway.

[23] In support of its motion for summary judgment, the Township designated as

evidence the following: copies of checks and receipts showing that 487

Broadway had paid for the building, a copy of the warranty deed showing 487

Broadway as the new owner of the building, a copy of the closing settlement

statement, and a copy of the sales disclosure form. However, none of those

exhibits were admissible. Indeed, the Township did not include any affidavit

by a person qualified to authenticate the exhibits. Nor were any of those

documents self-authenticating. See Ind. Evidence Rule 902. Accordingly, the

exhibits were not proper Rule 56 evidence, and the court erred when it

considered them. See Seth, 997 N.E.2d at 1143.

[24] As the Township did not designate any admissible evidence, we hold that it has

failed as a matter of law to make a prima facie case that it was entitled to

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 12 of 14 summary judgment on 487 Broadway’s complaint. And, because the Township

did not meet its burden as summary judgment movant to demonstrate the

absence of any genuine issue of material fact, the burden never shifted to 487

Broadway to show the existence of genuine issues of material fact precluding

summary judgment. We therefore hold, again, the trial court erred when it

entered summary judgment in favor of the Township.

Conclusion

[25] In sum, the trial court misapplied the law when it gave 487 Broadway only

twenty days to respond to the Township’s motion for summary judgment, when

it mischaracterized 487 Broadway’s motion to stay pending discovery as a Trial

Rule 56(C) “response,” and when it did not rule on 487 Broadway’s motion to

stay and for additional time to conduct discovery. Further, the Township did

not designate any evidence in support of its motion for summary judgment that

would be admissible at trial. Accordingly, we hold that the trial court erred

when it entered summary judgment in favor of the Township and that the court

abused its discretion when it denied 487 Broadway’s motion to correct error.

We therefore reverse the entry of summary judgment, and we remand this case

to the trial court with instructions for the court to vacate all orders subsequent

and relevant to the Township’s motion to dismiss. Should the Township

submit a motion for summary judgment that complies with Trial Rule 56(C),

including the proper designation of evidence and undisputed material facts, we

further instruct the court to allow 487 Broadway, as the nonmovant, a full thirty

days to respond.

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 13 of 14 [26] Reversed and remanded for further proceedings. 3

Riley, J., and Brown, J., concur.

3 487 Broadway also asks us to direct the trial court to enter partial summary judgment in its favor on the issue of whether the exterior signs and interior photographs and artifacts are fixtures. However, we decline to address this issue in that 487 Broadway did not file a motion for summary judgment in the trial court. If 487 Broadway believes that it is entitled to partial summary judgment, it may file a motion with the trial court, at which point the Township will have a chance to respond as it deems appropriate.

Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020 Page 14 of 14