Bird v. Valley Acre Farms, Inc.

Citation177 N.E.3d 459
Decision Date21 September 2021
Docket NumberCourt of Appeals Case No. 21A-CT-589
Parties John Levi BIRD, Appellant-Plaintiff, v. VALLEY ACRE FARMS, INC., David Bagshaw, Appellees-Defendants.
CourtCourt of Appeals of Indiana

Attorneys for Appellant: Martin Pohl, Gregory Crutcher, Louisville, Kentucky

Attorneys for Appellee: William J. Beggs, Ryan M. Heeb, Bunger & Robertson, Bloomington, Indiana

Bailey, Judge.

Case Summary

[1] John Levi Bird ("Bird") appeals a grant of summary judgment that disposed of his negligence claims against Valley Acre Farms, Inc. and other co-defendants (at times, collectively referred to as "Valley Acre") upon the trial court's determination that a general release of all defendants, drafted by the insurer of two defendants and signed by Bird, was a valid contract; a Covenant Not to Execute of the same date in contemplation of ongoing litigation was parol evidence irrelevant to party intent; and a subsequently executed limited release failed for lack of consideration. We reverse and remand for trial.


[2] Bird presents two issues for review:

I. Whether the trial court properly granted a motion from Valley Acre to strike an attorney e-mail and attorney affidavit designated in opposition to the motion for summary judgment; and
II. Whether the trial court erroneously granted summary judgment.
Facts and Procedural History

[3] The uncontested facts are as follows. On May 9, 2017, then sixteen-year-old Bird and another minor, D.G., were working at Valley Acre, and were directed to clean out a chicken coop. Inside the chicken coop, D.G. discovered a loaded rifle, with which he shot Bird in the abdomen. Bird was taken to a local hospital and ultimately airlifted to University of Louisville Hospital with life threatening injuries.

[4] On July 23, 2018, Bird filed his complaint against D.G., D.G.’s parents Mother G. and Father G., Valley Acre, Valley Acre's shareholder1 David Bagshaw ("Bagshaw"), and premises owner Geneva Bagshaw ("Geneva"). After the filing of the complaint, three documents were executed having a connection to the shooting incident: a May 19, 2020 document entitled "Release of All Claims against Dennis and Angelina Gresham and Indemnity Agreement" ("the May Release"), a May 19, 2020 "Covenant not to Execute on any Judgment in Excess of Available Insurance Proceeds" (with Bird and an authorized representative of State Farm Insurance2 as signatories) ("the Covenant"), and a December 11, 2020 "Release of All Claims against Dennis and Angelina Gresham and Indemnity Agreement" ("the December Release"). (App. Vol. II, pgs. 55, 58, 61.) The language of the May Release, in relevant part, addressed "full settlement of all claims resulting from said accident." Id. at 55. The Covenant contemplated ongoing litigation, but Bird agreed not to execute upon any judgment obtained against D.G. The December Release deleted the "all claims" language and included the term: "Nothing herein does or is intended to release any claims against Valley Acre Farms, Inc., David Bagshaw, or Geneva Bagshaw." Id. at 58. Each of the releases stated that a $5,000.00 payment was the consideration for the release.

[5] On December 17, 2020, Valley Acre filed a motion for summary judgment, contending that all defendants had been released from liability upon execution of the May Release. Bird responded, contending that the "defunct [July] Release was never fully executed." (Id. at 57.) On February 22, 2021, the trial court conducted a hearing on the summary judgment motion and Valley Acre's motion to strike some materials designated in opposition to summary judgment. Valley Acre argued that the May Release was a valid contract supported by $5,000.00 in consideration, the December Release failed for lack of new consideration, and the Covenant was not to be considered in conjunction with the May Release because D.G., and not his parents, was the signatory. Bird's counsel advised the trial court that two separate $5,000.00 checks had been issued in connection with the releases and the first had been returned.3

[6] On March 24, 2021, the trial court issued its order on the motion to strike, striking from Bird's designation of evidence: proposed stipulations of dismissal as to Father G. and Mother G., a December 9, 2020 e-mail from an attorney representing D.G.’s parents, and affidavits from two attorneys who had represented Bird. Also on March 24, 2021, the trial court entered its order granting the summary judgment motion of Valley Acre and declaring the order to be final and appealable pursuant to Indiana Trial Rule 54(B).4 The trial court concluded that: the May Release terms were clear and unambiguous so as to release all defendants from liability; the court could not consider parol evidence; the Covenant was not a document to be considered as one executed contemporaneously with the May Release transaction because D.G.’s parents were not parties to the Covenant; the December Release represented an attempted modification of the May Release without new consideration; and Bird was not entitled to equitable reformation of the May Release because a mistake of law, as opposed to a mistake of fact, had been made.5

[7] On May 7, 2021, the parties filed a Stipulation of Dismissal as to Father G. and Mother G. only. Bird now appeals.

Discussion and Decision
Motion to Strike

[8] Without record citation or citation to legal authority, Bird makes the following concise argument regarding the trial court's grant of the motion to strike:

The trial court abused its discretion in granting the AppelleesMotion to Strike with regard to the December 9, 2020 Email from Natalie Short, and Affidavit of Kungu Njuguna. The latter affidavit was timely filed with regard to the subject matter of the AppelleesSecond Motion for Summary Judgment. The affidavit properly authenticated and verified the December 9, 2020 Email from Natalie Short, thereby making said designated evidence admissible. Accordingly, the trial court abused its discretion at least in part by granting the AppelleesMotion to Strike.

Appellant's Brief at 23-24. When an appellant presents only argument, unaccompanied by citation to authority or record citation, the issue is waived for appellate review. Bixler v. State , 537 N.E.2d 21, 23 (Ind. 1989).

[9] Waiver notwithstanding, we find no abuse of discretion. "[I]n 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). The email in question was proffered without authentication, that is, "evidence sufficient to support a finding that the item is what the proponent claims it is." Ind. Evidence Rule 901. It was properly stricken.

[10] Subsequently, Bird proffered an attorney affidavit in an attempt to authenticate the e-mail. However, the affidavit was not timely designated. Trial Rule 56(C) provides that "[a]n adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits." If the non-moving party does not respond to a motion for summary judgment "within 30 days by either filing a response, requesting a continuance under Trial Rule 56(1), or filing an affidavit under Trial Rule 56(F), the trial court cannot consider summary judgment filings of that party subsequent to the 30-day period." HomEq Servicing Corp. v. Baker , 883 N.E.2d 95, 98-99 (Ind. 2008). Here, Bird proffered the attorney affidavit sixty-two days after Valley Acre's motion for summary judgment, without an order granting an extension of time to designate materials in opposition to the motion. The affidavit was properly stricken as untimely.

Grant of Summary Judgment
Summary Judgment Standard of Review

[11] We review summary judgment de novo, applying the same standard as the trial court. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014). 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 a judgment as a matter of law." Ind. Trial Rule 56(C). We construe the evidence in favor of the nonmovant and resolve all doubts against the moving party. Pfenning v. Lineman , 947 N.E.2d 392, 397 (Ind. 2011) (quotation omitted). The party moving for summary judgment bears the initial burden to establish its entitlement to summary judgment. Id. at 396–97. Only then does the burden fall upon the nonmoving party to set forth specific facts demonstrating a genuine issue for trial. Id. at 397 (quotation omitted).

[12] A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Huntington v. Riggs , 862 N.E.2d 1263, 1266 (Ind. Ct. App. 2007), trans. denied. The summary judgment process is not a summary trial. Hughley , 15 N.E.3d at 1003-04. Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims. Id. at 1004. Nevertheless, a grant of summary judgment is clothed with a presumption of validity, and the appellant bears the burden of demonstrating that the trial court erred. Kramer v. Catholic Charities of Diocese of Fort Wayne – South Bend, Inc. , 32 N.E.3d 227, 231 (Ind. 2015).

[13] "When no genuine issues of material fact divide the parties, we need only determine whether the trial court correctly applied the law to the undisputed facts." GEICO Ins. Co. v. Rowell , 705 N.E.2d 476, 480 (Ind. Ct. App. 1999). The construction of an unambiguous contract is generally a question of law, which may be particularly appropriate for summary judgment. Id.

Contract Standard of Review

[14] The intent of the contracting parties to bestow rights upon a third party must affirmatively appear from the language of the instrument when...

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