Harkins v. Westmeyer
| Citation | 116 N.E.3d 461 |
| Decision Date | 10 December 2018 |
| Docket Number | Court of Appeals Case No. 15A01-1703-CT-530 |
| Parties | Chris E. HARKINS, Appellant-Plaintiff, v. Shannon WESTMEYER, Jon Niklas, Angie Harkins, and Janet Harkins, Appellees-Defendants. |
| Court | Court of Appeals of Indiana |
Appellant Pro Se: Chris E. Harkins, Bunker Hill, Indiana
Attorneys for Appellee: Shannon Westmeyer: Scott E. Andres, Charles J. Maiers, Due Doyle Fanning & Alderfer, LLP, Indianapolis, Indiana
Attorney for Appellee: Jon Niklas: Michelle L. Burden, Garvey, Shearer, Nordstrom, PSC, Fort Mitchell, Kentucky
Attorney for Appellee: Angie Harkins: Nicole A. Mitchell, Freund, Freeze & Arnold, West Chester, Ohio
Attorney for Appellee: Janet L. Harkins: Alan R. Trenz, Trenz & Knabe Co., LPA, Harrison, Ohio
Case Summary
[1] Chris E. Harkins ("Harkins"), pro se, appeals the trial court's grant of summary judgment in favor of Shannon Westmeyer, Jon Niklas, Angie Harkins ("Angie"), and Janet Harkins ("Janet"). We affirm.
[2] Harkins raises two issues on appeal, which we restate as:
[3] The parties involved in this case are relatives, with the exception of Niklas. Harkins and Westmeyer are siblings. Angie is Harkins' and Westmeyer's cousin. Angie's mother, Janet, is Harkins' and Westmeyer's aunt.
[4] In April 2012, Harkins moved in with his and Westmeyer's parents, James and Cheryl Harkins (the "Parents"). While living in the Parents' home, Harkins obtained access to the Parents' personal financial records. Harkins subsequently moved out of the Parents' home and into an apartment ("the Apartment") located in Aurora, Indiana. Niklas was Harkins' landlord.
Harkins' ex-wife, Dawn Harkins ("Dawn"), had a key to the Apartment.
[5] Using the Parents' financial information, Harkins (1) forged checks on the Parents' accounts; (2) cashed the checks and deposited the proceeds into bank accounts in Harkins' name; (3) fraudulently added himself as an authorized user on the Parents' existing credit accounts; (4) rerouted the Parents' credit card statements to the Apartment; and (5) made unauthorized credit card purchases in excess of $37,000 on the Parents' credit cards. Harkins also stole and pawned multiple pieces of the Parents' jewelry. Harkins sold many of the items he purchased with the Parents' credit cards "for gambling funds." Harkins v. State, No. 15A01-1412-CR-553, slip op. at 4, 2015 WL 6668109 (Ind. Ct. App. Nov. 2, 2015).
[6] Harkins was arrested on June 3, 2014. After Harkins' arrest, Harkins authorized Dawn to enter the Apartment and to retrieve personal items belonging to Harkins' and Dawn's son. On June 4, 2014, Westmeyer, Angie, and Janet accompanied Dawn to the Apartment. It is undisputed that Dawn unlocked the Apartment with her key and granted Westmeyer, Angie, and Janet access to the Apartment. Harkins contends that Westmeyer, Angie, and Janet removed and disposed of valuable items of Harkins' personal property. Westmeyer, Angie, and Janet maintain that they removed only personal property items and furniture that belonged to the Parents or to other family members.
[7] On August 6, 2014, the State charged Harkins with various offenses and with being a habitual offender. After a jury trial, Harkins was convicted of five counts of forgery, Class C felonies; two counts of identity deception, Class D felonies; two counts of credit card fraud, Class D felonies; one count of deception, a Class A misdemeanor; and of being a habitual offender. Harkins was sentenced to a twenty-two-year term in the Department of Correction and is presently incarcerated in the Miami Correctional Facility in Bunker Hill, Indiana.1
[8] On October 9, 2015, Harkins filed a pro se suit for damages against Westmeyer, Angie, Janet, and Niklas. In Count I, which Harkins titled "[w]rongful/[f]raudulent conversion," Harkins alleged that Westmeyer: (1) enlisted Niklas' assistance to gain entry to the Apartment; (2) recruited Janet and Angie; (3) removed and transported Harkins' personal property to a local Goodwill donation site; and (4) maliciously and intentionally deprived Harkins of his property without communicating the disposition of the items. Appellee Westmeyer's App. Vol. II pp. 22-23.
[9] In Count II, Harkins alleged that Westmeyer drove his truck or directed his truck to be driven to a location at which the keys and keyless entry remote were locked inside. Harkins sought damages for the costs of replacing and repairing "a window [that] was ... broken to gain access into the truck." Id. at 24.
[10] In Count III, Harkins alleged that, despite Niklas' knowledge that Niklas' tenant, Harkins, was incarcerated, Niklas exercised unauthorized control over Harkins' property and acted "willfully, intentionally and negligently" in "opening or making accessible the apartment" to Westmeyer, Angie, and Janet, without providing notice to Harkins as required by law. Id. at 26.
[11] In Count IV, Harkins alleged that Westmeyer "acted with the specific and purposeful intentions to inflict emotional distress" when Westmeyer removed Harkins' personal property and "acted with malicious intent to cause [Harkins] to suffer emotionally ... on the belief that [Harkins] had wronged their parents." Id.
[12] In Count V, Harkins alleged that Janet and Angie aided Westmeyer in exercising unauthorized control over his property "with the intent to forever deprive" Harkins thereof. Id. at 28.
[13] On March 2, 2016, Westmeyer served Harkins with requests for admissions ("RFAs"), which included the following:
Appellee Westmeyer's App. Vol. II pp. 3-4. Harkins did not respond to the RFAs. Westmeyer also served Harkins with interrogatories. In Harkins' answers to Westmeyer's interrogatories, Harkins admitted that, after his arrest, Harkins granted Dawn permission to enter the Apartment and to retrieve items belonging to their son.
[14] On June 2, 2016, Westmeyer, by counsel, filed a motion for summary judgment. On July 18, 2016, the trial court granted Harkins "an extension of 45 days from the date of th[e] order to respond to [ ]Westmeyer's Motion for Summary Judgment"; accordingly, Harkins' response to Westmeyer's motion for summary judgment was due on September 1, 2016. On September 6, 2016, Harkins filed his response in opposition to Westmeyer's motion for summary judgment, including Harkins' own affidavit, a subpoena request regarding Dawn, and Harkins' designation of evidence (collectively, "response materials").2 Harkins also designated the appellees' answers to his complaint, the appellees' affidavits, and the other documents filed by Westmeyer, Angie, and Janet.
[15] On July 5, 2016, Angie filed a motion for summary judgment. In support, Angie designated an affidavit and incorporated all materials designated by Westmeyer in support of Westmeyer's motion for summary judgment. Harkins moved for additional time in which to respond. On September 6, 2016, the trial court granted Harkins an additional thirty days from the date of its order to respond to Angie's motion for summary judgment; accordingly, Harkins' response to Angie's motion for summary judgment was due on October 6, 2016. Harkins did not file a response to Angie's motion for summary judgment.
[16] On June 24, 2016, Janet filed a motion for summary judgment and designated an affidavit in support. Harkins filed a motion for additional time to respond. On September 6, 2016, the trial court granted Harkins an additional thirty days to respond; accordingly, Harkins' response to Janet's motion for summary judgment was due on October 6, 2016. Harkins did not file a response.
[17] On October 20, 2016, Niklas filed a motion for summary judgment. Niklas designated Harkins' responses to Westmeyer's RFAs as well as all materials designated by Westmeyer, Janet, and Angie. Harkins filed a motion for additional time to respond. On November 29, 2016, the trial court granted Harkins an additional thirty days to respond; accordingly, Harkins' responsive filing was due on December 29, 2016. Harkins did not file a response.
[18] On October 7, 2016, the trial court conducted a hearing on the motions for summary judgment filed by Westmeyer, Angie, and Janet. Westmeyer, Angie, and Janet moved, pursuant to Indiana Trial Rule 56(C), to strike, as untimely, Harkins' response materials to Westmeyer's motion for summary judgment. The trial court granted the motion and ordered Harkins' response materials and other filings stricken.
[19] On December 12, 2016, the trial court entered summary judgment in favor of Westmeyer, Angie, and Janet. In its order, the trial court stated:
* * * * * Ind. T.R. 56 states that "an adverse party shall have thirty days after service of the motion to serve a response and any opposing affidavits." Id. Additionally, it instructs "at the time of filing the motion or response, a party shall designate to the Court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters in which it relies for purposes of the motion." Id. In Allstate Insurance Co. v. Hatfield , 28 N.E.3d 247 (Ind. Ct. App. 2015), the Court of Appeals found that where a Plaintiff did not respond to a Motion for Summary Judgment until 35 days after the motion was filed nor requested an extension of time, that the Defendant's Motion to Strike any late filed responses should be granted.
Here, [Harkins] failed to respond timely and [Westmeyer's, Angie's, and Janet's] evidence...
To continue reading
Request your trial
-
Research Corp. Techs. v. Eli Lilly & Co.
...been subsumed by the more recent, controlling case law cited above. Therefore, this Court applies the elements of conversion as set forth in Harkins, Computers and Barna. The undisputed facts show RCT had an immediate right to possession of the materials and Lilly did not immediately return......
-
Cobb v. Aramark Corr. Servs., LLC
......And thus in Harkins v. Westmeyer , 116 N.E.3d 461, 469 (Ind. Ct. App. 2018), the Indiana Court of Appeals accepted a letterhead statement from the facility ......
- J.T. v. State
-
Hickingbottom v. Dugan
...a document was timely submitted to prison officials for mailing. Where a prisoner's proof is lacking, however, the opposite result obtains. Id. at 469 (cleaned up and quoting Dowell State, 922 N.E.2d 605, 607-08 (Ind. 2010)). [¶23] In Dowell, the Court recognized that a sworn affidavit from......