City of Mishawaka v. Kvale

• Decision Date: 30 June 2004
• Docket Number: No. 71A05-0311-CV-591.,71A05-0311-CV-591.
• Citation: 810 N.E.2d 1129
• Parties: CITY OF MISHAWAKA, Appellant-Defendant, v. Marian KVALE, Personal Representative of the Estate of Gordon Barclay, Appellee-Plaintiff.
• Court: Indiana Appellate Court

810 N.E.2d 1129

CITY OF MISHAWAKA, Appellant-Defendant, v. Marian KVALE, Personal Representative of the Estate of Gordon Barclay, Appellee-Plaintiff.

No. 71A05-0311-CV-591.

Court of Appeals of Indiana.

June 30, 2004.

Edward A. Chapleau, South Bend, IN, Attorney for Appellant.

Ronald D. Foster, Botkin & Hall LLP, South Bend, IN, Attorney for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Defendant City of Mishawaka ("City") appeals the trial court's grant of summary judgment to Appellee-Plaintiff Marian Kvale, as personal representative of the Estate of Gordon Barclay (the "Estate"). We affirm in part and reverse in part.

Issues

City raises four issues, which we consolidate and restate as:

I. Whether the trial court abused its discretion by granting the Estate's motion to strike City's summary judgment response and designation of evidence, which was untimely filed;

II. Whether the trial court erroneously granted summary judgment to the Estate because a genuine issue of material fact exists regarding whether the three mortgages at issue are void, pursuant to Indiana Code Section 29-3-8-5; and

III. Whether the trial court's grant of summary judgment in favor of the Estate was erroneous because, even if the mortgage agreements are void, the Estate is obligated to repay the balance due on the agreements under the equitable doctrine of quantum meruit.

Facts and Procedural History

The relevant designated facts are undisputed. On November 13, 1996, the probate court appointed First Source Bank ("Bank") to be guardian of the estate of Gordon Barclay ("Barclay"). On December 13, 1999, while under the guardianship, Barclay entered into a real estate mortgage agreement with City in exchange for $8,681.00.¹ In addition, on May 23, 2000, Barclay and City executed two separate mortgage agreements in the amounts of $3,320.00 and $6,680.00. As a result of these three mortgage agreements, Barclay became indebted to City in the aggregate amount of $18,681.00. In exchange, City built a new garage on Barclay's property. At the time that his new garage was constructed, Barclay did not own an automobile and was physically unable to walk from his house to the garage, which was located in the back of his residence.

On January 30, 2003, Barclay died and the Estate was opened on his behalf. Subsequently, Marian Kvale ("Kvale"), as personal representative of the Estate, attempted to sell Barclay's real estate and learned of the three mortgage agreements. Kvale eventually sold the property for an undisclosed amount and the present dispute arose regarding the amount due and owing to City.

On May 22, 2003, the Estate filed a complaint against City, alleging that the mortgage agreements were void because Barclay was a protected person when he executed the agreements. On September 11, 2003, the Estate filed a motion for summary judgment, designating, in pertinent part, the following evidence: (1) the pleadings; (2) Kvale's Affidavit dated September 10, 2003; and (3) City's responses to requests for admissions. Forty days later, on October 21, 2003, City filed its response to the Estate's motion for summary judgment, a cross-motion for summary judgment, and City's designation of evidence. At the Estate's request, the trial court struck City's response and designated evidence as untimely. After conducting a hearing, the trial court granted the Estate's motion for summary judgment and denied City's cross-motion for summary judgment in favor of the Estate. This appeal by City ensued.

Discussion and Decision

I. Standard of Review

On review of a trial court's decision to grant or deny summary judgment, we apply the same standard as the trial court: we must decide whether there is a genuine issue of material fact that precludes summary judgment and whether the moving party is entitled to judgment as a matter of law. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind.1999). Once the moving party has sustained its initial burden of proving the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law, the party opposing summary judgment must respond by designating specific facts establishing a genuine issue for trial. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind.1992). We may consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the motion for summary judgment. Ind. Trial Rule 56(C), (H). Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party. Cowe v. Forum Group, Inc., 575 N.E.2d 630, 633 (Ind.1991). Although the nonmovant has the burden of demonstrating that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that the nonmovant was not improperly denied his or her day in court. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997).

In addition, "[t]he fact that the parties [made] cross-motions for summary judgment does not alter our standard of review. Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law." Ind. Farmers Mut. Ins. Group v. Blaskie, 727 N.E.2d 13, 15 (Ind.Ct.App.2000).

II. Analysis

A. Motion to Strike Designated Evidence

On appeal, City first argues that the trial court abused its discretion by striking the untimely filing of its response and designation of evidence in opposition to the Estate's motion for summary judgment. Indiana Trial Rule 56(C) provides that: "An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits." In addition, Indiana Trial Rule 6(E) provides that when "the notice or paper is served upon [the adverse party] by mail, three (3) days shall be added to the prescribed period." Here, because the Estate served its motion for summary judgment by mail, on September 10, 2003, City's response was due on or before October 13, 2003. However, the evidence reveals that City did not file its response until October 21, 2003. Accordingly, at the summary judgment hearing, the Estate made an oral motion to strike City's response and designated evidence, which the trial court granted.

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), reh'g denied. The trial court's decision will not be reversed unless prejudicial error is clearly shown. Id. In the present case, City contends that "there was no prejudice to [the Estate] because [the Estate] had a chance to reply to [City's] response... and designated evidence." Appellant's Br. at 18. This argument, which asserts only that the Estate suffered no prejudice from the untimely filing, fails to prove that City suffered prejudicial error as a result of the trial court's grant of the Estate's motion to strike.

Moreover, we note that in Markley Enterprises, Inc. v. Grover, 716 N.E.2d 559, 563 (Ind.Ct.App.1999), we encountered a similar procedural issue and determined that the trial court abused its discretion by permitting a late summary judgment filing. There, the plaintiff filed a motion for an extension of time to respond to the defendant's motion for summary judgment approximately sixty days after the defendant had filed the initial motion, which the trial court granted. Id. at 562. Subsequently, the plaintiff filed a reply brief as well as the designated evidence in opposition to the motion for summary judgment. Id. On appeal, another panel of this court reversed the trial court's ruling and held that:

[The plaintiff] did not respond to the [defendant's] motion for summary judgment within thirty days. Nor did he request an extension of time or otherwise explain the cause of his delay within thirty days. Contrary to [the plaintiff's] argument, the trial court did not have unlimited discretion to expand the time within which he could file his response to summary judgment. Thus, the trial court erred when it granted [the plaintiff's] motion for extension of time to respond to the [defendant's] motion for summary judgment.

Id. at 563. In reaching this conclusion, the Grover court observed that "the remedies provided by [Indiana] Trial Rule 56(F) [²] and (I)[³ are] not available to a non-moving party who has failed to oppose or respond to the motion within the thirty-day limit established by [Indiana] Trial Rule 56(C)." Id.

Likewise, here, City failed to respond to the Estate's motion for summary judgment within thirty days as required by Indiana Trial Rule 56(C). As such, City was bound by Indiana Trial Rule 56(C), which requires that an adverse party respond within thirty days after service of the motion. However, because the Estate served its motion for summary judgment via mail, City had an additional three days to respond. See T.R. 6(E). Because City's response and designation of evidence was filed after the thirty-three days had expired, the trial court did not abuse its discretion by striking City's response and designated materials.⁴ See, e.g., Coleman, 797 N.E.2d at 787.

B. Application of Indiana Code Section 29-3-8-5(b)

Second, City argues that the trial court erred by granting summary judgment to the Estate on the Estate's claim that the mortgage agreements at issue are void. At the outset, we observe that the parties do not dispute that Barclay was a "protected person" at the time that he executed the three real estate mortgage agreements. Appellant's App. at 31; see also Ind.Code § 29-1-1-3(a)(24) ("`Protected person' has the meaning set forth in IC XX-X-X-XX."); and Ind.Code § 29-3-1-13 (defining a "protected person" as "an individual for whom a guardian has been appointed or with respect to whom a protective order has been issued"). Moreover, the evidence is uncontested that Barclay, who was...