Auto–Owners Ins. Co. v. Bill Gaddis Chrysler Dodge, Inc.

Decision Date29 August 2012
Docket NumberNo. 18A02–1112–PL–1087.,18A02–1112–PL–1087.
Citation973 N.E.2d 1179
PartiesAUTO–OWNERS INSURANCE COMPANY, Appellant–Plaintiff, v. BILL GADDIS CHRYSLER DODGE, INC., Garrett Gaddis, and Edward Foster, Appellees–Defendants.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

David L. Taylor, Taylor Law Firm, Brownsburg, IN, Attorney for Appellant.

Mark K. Dudley, Howard Deley & Dudley, LLP, Anderson, IN, Attorney for Appellees.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Auto–Owners Insurance Company (Auto–Owners) appeals the trial court's denial of its motion for summary judgment in this declaratory judgment action. Auto–Owners presents three issues for our review, which we consolidate and restate as:

1. Whether the trial court abused its discretion when it denied Auto–Owners' motions to strike the memorandum and designated evidence submitted by Edward Foster in opposition to Auto–Owners' summary judgment motion.

2. Whether the trial court erred when it denied Auto–Owners' summary judgment motion.

We affirm.

FACTS AND PROCEDURAL HISTORY

On December 15, 2008, Garrett Gaddis (Garrett), who was eighteen years old and living with his father, signed a sales contract for the purchase of a 1996 Honda Accord (“the car”) from Bill Gaddis Dodge (“the dealership”). Bill Gaddis (Bill), Garrett's grandfather, owned the dealership, and Scott Gaddis (Scott), Garrett's father, was a salesman at the dealership at the time. Garrett did not pay any money to the dealership for the car. Instead, Garrett gave Scott approximately $300 in cash for the car, and Scott “charged” the car to an account he had with the dealership, with the $535 sales price to be deducted from Scott's salary or bonus income at a later date. See Appellant's App. at 999. Thereafter, the dealership did not transfer title to the car in Garrett's name, and Garrett did not register or insure the car. The car displayed a temporary dealer license plate.

Sometime in late January, Scott punished Garrett by taking the car keys from him and prohibiting Garrett from driving the car. But on January 29, Garrett stole the keys and drove the car to a friend's house. Later, while on his way home, Garrett struck a man, Edward Foster, who was riding a bicycle in the street. Garrett initially stopped, but then fled the scene. He subsequently turned himself into police.

Foster filed a complaint against Garrett alleging that his negligence caused Foster's injuries. Auto–Owners, which had issued both a commercial liability policy and a garage liability policy to the dealership, hired defense counsel to defend Garrett under a reservation of rights. Auto–Owners moved for declaratory judgment asking the court to determine that there is no liability coverage for Foster's injuries under either of the dealership's policies.

On March 25, 2011, Auto–Owners moved for summary judgment in the declaratory judgment action. The trial court ordered that all designations of evidence and memoranda were due on or before April 22 1 and scheduled a hearing on the summary judgment motion for May 4. On April 26, Foster filed a motion for extension of time to respond to Auto–Owners' summary judgment motion, and the trial court granted that motion, extending the deadline for a response to May 27. On May 26, Foster filed a memorandum in opposition to summary judgment and designation of evidence.

Auto–Owners filed a reply brief in support of summary judgment, as well as two motions to strike: a motion to strike “untimely filed evidence” by Foster and a motion to strike certain exhibits designated as evidence by Foster in opposition to summary judgment. Appellant's App. at 1248. In support of the first motion to strike, Auto–Owners pointed out that the trial court had set the deadline for responses to its summary judgment motion for April 22, and Foster did not move for an extension of time or otherwise respond until after that deadline had expired. In support of the second motion to strike, Auto–Owners maintained that the challenged exhibits were “not properly certified nor authenticated[.] Id. at 1166. Following a hearing, the trial court denied Auto–Owners' motions to strike and summary judgment motion. In its order denying summary judgment in favor of Auto–Owners, the trial court stated in relevant part:

There are material questions of fact as to ownership, possession, and control of the subject vehicle, as to whether a sale actually took place or the vehicle for all intents and purposes remained a part of the dealership fleet of Bill Gaddis Chrysler Dodge, Inc., whether Garrett Gaddis, as a Gaddis family member, was a garage customer or otherwise entitled to coverage under [the dealership]'s policy, and, ultimately, whether the vehicle was at all times pertinent herein deemed a part of the business of Bill Gaddis Chrysler Dodge, Inc.

Id. at 8. This discretionary interlocutory appeal ensued.

DISCUSSION AND DECISION
Issue One: Motions to Strike

Auto–Owners contends that the trial court abused its discretion when it denied its two motions to strike. A trial court has broad discretion in granting or denying a motion to strike. Coleman v. Charles Court, LLC, 797 N.E.2d 775, 786 (Ind.Ct.App.2003). The trial court's decision will not be reversed unless prejudicial error is clearly shown. Id.

Timeliness

Auto–Owners first contends that Foster's request for an extension of time to file a response in opposition to summary judgment was untimely. Accordingly, Auto–Owners maintains that the trial court erred when it granted the motion for extension of time. We cannot agree.

Indiana Trial Rule 56(C) provides in relevant part that an adverse party shall have thirty days after service of a summary judgment motion to serve a response and any opposing affidavits. And Indiana Trial Rule 56(I) provides that a trial court has discretion, for cause found, to alter “any time limit set forth in this rule upon motion made within the applicable time limit.” (Emphasis added). Here, Auto–Owners maintains that, because the trial court shortened the deadline for Foster's response from thirty days to twenty-eight days, Foster was required to move for an extension of time or otherwise reply to the motion by April 22.

But the record does not support the application of Trial Rule 56(I). There is nothing in the record indicating either that the trial court found cause or that a motion was made, as required under Trial Rule 56(I), to shorten the thirty-day time limit to twenty-eight days. Thus, the shortened time limit was a procedural nullity and the thirty days allowed by Trial Rule 56(C) controlled. Auto–Owners has not shown that the trial court erred when it concluded, in effect, that Foster's motion for extension of time was timely under Trial Rule 56(C).

After the trial court granted Foster's motion for extension of time, Foster timely filed his response in opposition to motion for summary judgment and designation of evidence. Foster's response was timely under Trial Rule 56(C) and Trial Rule 56(E), which grants an extra three days to respond where a notice or paper is served upon the party by mail. There was no error and no prejudice, and, thus, the trial court did not abuse its discretion when it denied Auto–Owners' motion to strike Foster's response as untimely.

Authentication of Designated Evidence

Auto–Owners next contends that the trial court abused its discretion when it denied its motion to strike certain evidence designated by Foster in opposition to summary judgment. Auto–Owners maintains that four of the exhibits Foster designated as evidence in his response in opposition to summary judgment were “not certified nor properly authenticated” and were not, therefore, properly designated evidence. Brief of Appellant at 22. While we agree with Auto–Owners that the four challenged exhibits were not properly designated evidence, Auto–Owners has not shown prejudicial error as a result of the trial court's denial of its motion to strike the exhibits.

Unsworn statements and unverified exhibits do not qualify as proper Rule 56 evidence. Indiana Univ. Med. Ctr. v. Logan, 728 N.E.2d 855, 858 (Ind.2000). Here, in opposition to summary judgment, Foster designated as evidence fifteen exhibits.Four of those exhibits, when initially submitted to the court on May 26, were neither certified nor properly authenticated. Those exhibits included: Garrett's bank records (Exhibit 8); Garrett's employment records with Papa John's (Exhibit 12); and copies of pages printed from a Bureau of Motor Vehicles website (Exhibits 14 and 15). Auto–Owners moved to strike those unauthenticated and uncertified exhibits. And on June 22, Foster filed a response to the motion to strike and submitted affidavits in an attempt to authenticate the four challenged exhibits.

Trial Rule 56(E) provides in pertinent part: [T]he court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. (Emphases added). Here, Foster's response in opposition to summary judgment and designated evidence were due May 27, and Foster submitted those documents on May 26. His attempt to certify and authenticate the four challenged exhibits with affidavits on June 22 was untimely. Trial Rule 56(E) permits only affidavits, not other designated evidence, to be supplemented after the deadline for submission of designated evidence. We hold that the trial court should have stricken those late-filed affidavits.

However, as we discuss below, the other eleven exhibits Foster designated as evidence in opposition to summary judgment are sufficient to establish genuine issues of material fact precluding summary judgment. Accordingly, Auto–Owners has not shown that it was prejudiced by the trial court's denial of its motion to strike the four unauthenticated exhibits. See Coleman, 797 N.E.2d at 786.

Issue Two: Summary Judgment

Auto–Owners contends that the trial court erred when it denied its summary judgment motion. Our standard of review for summary judgment...

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8 cases
  • Devereux v. Love
    • United States
    • Indiana Appellate Court
    • April 22, 2015
    ...by Devereux. A trial court has broad discretion in granting or denying a motion to strike. Auto–Owners Ins. Co. v. Bill Gaddis Chrysler Dodge, Inc., 973 N.E.2d 1179, 1182 (Ind.Ct.App.2012) (citing Coleman v. Charles Court, LLC, 797 N.E.2d 775, 786 (Ind.Ct.App.2003) ). The trial court's deci......
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