AutoXchange. com, Inc. v. Dreyer and Reinbold, Inc.

Decision Date15 September 2004
Docket NumberNo. 49A05-0402-CV-108.,49A05-0402-CV-108.
Citation816 N.E.2d 40
PartiesAUTOXCHANGE.COM, INC. and Donald Tabor, Appellant-Third Party Plaintiffs, v. DREYER AND REINBOLD, INC., Appellee-Third Party Defendant.
CourtIndiana Appellate Court

Jennifer L. Graham, Indianapolis, IN, Attorney for Appellant.

Scott R. Leisz, Brad R. Maurer, Bingham McHale LLP, Indianapolis, IN, Attorneys for Interested Party/Trial Court Plaintiff Automotive Finance Corporation.

Donn H. Wray, David I. Rubin, Stewart & Irwin, P.C., Indianapolis, IN, Attorney for Appellee.


RILEY, Judge.


Appellants-Third Party Plaintiffs,, Inc. (AutoXchange) and Donald Tabor (Tabor) (collectively, Appellants), appeal the trial court's denial of their motion to strike and award of partial summary judgment in favor of Appellee-Third Party Defendant, Dreyer & Reinbold, Inc. (Dreyer & Reinbold).

We affirm and remand.


Appellants raise four issues on appeal, which we consolidate and restate as follows:

1. Whether the trial court erred in denying Appellants' motion to strike certain portions of Dreyer & Reinbold's supplemental designation of evidence in support of its motion for summary judgment; and

2. Whether the trial court erred in awarding partial summary judgment in favor of Dreyer & Reinbold.


At the outset we note that significant portions of Dreyer & Reinbold's appellate brief are dedicated to responding to Appellants' factual allegations. Interested Party-Plaintiff, Automotive Finance Corporation (AFC), even felt compelled to submit an interested party brief replying to Appellants' inaccuracies and unsupported assertions as included in the statement of facts.1 Instead of directly responding to the respective parties' arguments, we have reviewed the record, evidence, and briefs; and accordingly base this statement of facts on our reading of the designated materials.

In March of 2001, Dreyer & Reinbold, an automobile retailer operating several locations in and out of Marion County, Indiana, purchased three automobiles from AutoXchange for a total amount of $148,208. During the negotiations leading up to this transaction, Dreyer & Reinbold dealt solely with Scott Ellingwood (Ellingwood), AutoXchange's corporate officer and minority shareholder. Tabor was AutoXchange's corporate president and majority shareholder.

At Ellingwood's request, Dreyer & Reinbold paid the purchase price directly to AFC, AutoXchange's floorplan lender and secured creditor, which would ensure Dreyer & Reinbold's receipt of free and clear title to the vehicles. Dreyer & Reinbold's payment to AFC was credited to AutoXchange's account by AFC following receipt of the purchase price. Under the terms of the financing agreement between AutoXchange and AFC, AutoXchange was required to hold the proceeds of the sale of any floorplanned vehicles in trust for AFC, and to transfer those proceeds to AFC within forty-eight hours of the sale.

On March 23, 2001, AFC filed for and obtained an Order of Prejudgment Replevin. On March 26, 2001, Appellants filed, among others, a Verified Third Party Complaint against Dreyer & Reinbold. On October 6, 2003, Dreyer & Reinbold filed its Motion for Partial Summary Judgment, together with its brief in support of its motion and designation of evidence. Thereafter, on December 9, 2003, AutoXchange filed its brief and designated evidence in opposition to Dreyer & Reinbold's motion for partial summary judgment. Subsequently, on January 5, 2004, Dreyer & Reinbold filed its reply brief and supplemental designation of evidence.

On January 20, 2004, Appellants filed their motion to strike portions of Dreyer & Reinbold's designation of evidence and supplemental designation of evidence. Dreyer & Reinbold filed a reply to this motion on January 23, 2004. On January 27, 2004, the trial court conducted a hearing on Dreyer & Reinbold's motion for partial summary judgment. Consequently, on February 10, 2004, the trial court issued an Order granting partial summary judgment in favor of Dreyer & Reinbold, and certified the order as a final judgment. On that same day, the trial court also issued an Order denying Appellants' motion to strike.

Appellants now appeal both Orders. Additional facts will be provided as necessary.

I. Waiver

It is well settled that the duty of presenting a record adequate for intelligent appellate review on points assigned as error falls upon the appellant, as does the obligation to support the argument presented with authority and references to the record pursuant to App. R. 46(A)(8). See, e.g., Lasater v. Lasater, 809 N.E.2d 380, 389 (Ind.Ct.App.2004); Dawson v. State, 612 N.E.2d 580, 583 (Ind.Ct.App.1993). In this regard, Appellants' brief and reply brief are highly inadequate and fall well short of this requirement. Examination of Appellants' briefs reveal that not only do Appellants fail to address this court with cogent reasoning, none of their contentions are supported by citations to authorities or relevant parts to the record and therefore amount to nothing more than mere rambling allegations. See App. R. 46(A)(8)(a). Accordingly, we have the authority to waive Appellants' entire argument. See id. However, waiver notwithstanding, we will attempt to address the merits of Appellants' claims.

II. Interlocutory Appeal

Appellants first contend that the trial court abused its discretion by denying their motion to strike certain portions of Dreyer & Reinbold's designated evidence in support of its motion for partial summary judgment. Specifically, Appellants claim that Dreyer & Reinbold's designation fails in specificity and authentication.

We first observe that the trial court never certified its Order denying the motion to strike as a final judgment, nor did Appellants seek certification of the Order pursuant to Ind. Trial Rule 54(B) or App. R. 14. Nevertheless, as this court observed in our grant of this interlocutory appeal on May 3, 2004, we cannot decide the trial court's award of partial summary judgment unless we know what evidence was designated for review to the trial court. Therefore, we will examine Appellants' contention.

Indiana Trial Rule 56(C) requires each party to a summary judgment motion to "designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion." This designation requirement promotes the expeditious resolution of lawsuits and conserves judicial resources by relieving the trial courts from the burden of searching the record when considering summary judgment motions. Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993). More significantly, T.R. 56(H) specifically prohibits appellate courts from reversing a grant of summary judgment "on the ground that there is a genuine issue of material fact unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court." T.R. 56(H).

The language of T.R. 56(C), however, permits the parties to determine how to designate, which has engendered a lack of consensus both with the bench and bar as to what must be done to designate evidentiary materials to the trial court in support of or in opposition to a motion for summary judgment. National Bd. of Examiners for Osteopathic Physicians and Surgeons, Inc. v. American Osteopathic Ass'n, 645 N.E.2d 608, 615 (Ind.Ct.App.1994). Nevertheless, consensus is clear that the rule requires specificity. Id. Thus, designating pleadings, discovery materials, and affidavits in their entirety will fail to meet the specificity required by T.R. 56(C). Id. Even if entire portions of the record are designated, however, the designation will not fail for lack of specificity if more detailed references to the record are provided in accompanying memoranda. Abbott v. Bates, 670 N.E.2d 916, 922 (Ind.Ct.App.1996), reh'g denied.

Appellants first allege that Dreyer & Reinbold designated its brief and reply brief in their entirety as support of the motion, thereby violating the specificity requirement of T.R. 56(C). Although we agree that T.R. 56(C) mandates that designated evidence must be specifically detailed, the manner in which a party chooses to designate material is not mandated. See Ling v. Stillwell, 732 N.E.2d 1270, 1276 (Ind.Ct.App.2000),trans. denied. A party satisfies T.R. 56(C) if it specifies evidence in a summary judgment motion, separate filing of designation, or in a memorandum in support or opposition to the motion for summary judgment. Id. Our review of Dreyer & Reinbold's brief and reply brief in support of its motion for summary judgment reveals that these briefs clearly satisfy the specificity requirement of T.R. 56(C). Regardless that Dreyer & Reinbold designated their entire briefs as supporting evidence, both briefs include page and paragraph numbers clearly referencing the specific material upon which they rely. This specific material is then also listed in a separate filing of designation. Further, we have held that "as long as the trial court is apprised of the specific material upon which the parties rely in support of or in opposition to a motion for summary judgment, then the material may be considered." National Bd.,645 N.E.2d at 615. We are hard-pressed to see how Dreyer & Reinbold could have been more specific in apprising the trial court than by providing page and paragraph numbers. Thus, we conclude that Appellants' first argument is devoid of merit.

Next, Appellants claim that some exhibits designated by Dreyer & Reinbold in their filing of designation are not authenticated or certified. Specifically, Appellants focus our attention on an uncertified copy of a promissory note, an amendment to the promissory note, and unauthenticated copies of checks from...

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