487 Broadway Co. v. Robinson

Citation147 N.E.3d 347
Decision Date23 April 2020
Docket NumberCourt of Appeals Case No. 19A-PL-1499
Parties The 487 BROADWAY COMPANY, LLC, Appellant-Plaintiff, v. Kimberly K. ROBINSON, Individually and in her Official Capacity as Calumet Township 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.
CourtCourt of Appeals of Indiana

Attorney for Appellant: MacArthur Drake, Gary, Indiana

Attorney for Appellees: Rinzer Williams, III Gary, Indiana

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 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 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.

[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 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 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...

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