Phifer v. Hestia Real Estate LLC, 22A-CT-683

Case DateSeptember 27, 2022
CourtCourt of Appeals of Indiana

Ashley R. Phifer, Appellant-Plaintiff,

Hestia Real Estate LLC, Sherbon LLC, and John Sherby, Appellees-Defendants.

No. 22A-CT-683

Court of Appeals of Indiana

September 27, 2022

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Appeal from the Marion Superior Court The Honorable Timothy W. Oakes, Judge Trial Court Cause No. 49D02-1903-CT-10670


Joseph E. Allman Allman Law LLC Indianapolis, Indiana


Scott A.Kreider Indianapolis, Indiana


Mathias, Judge

[¶1] Ashley R. Phifer, on her own behalf and as guardian of her children, filed a complaint against Hestia Real Estate, LLC, Sherbon LLC, and John Sherby


(collectively "the Appellees") alleging that they negligently attempted to remediate mold in her apartment. Phifer claims her children suffer chronic respiratory issues due to the mold exposure. The Appellees filed a motion for summary judgment, which the trial court granted. Phifer appeals, arguing that the trial court abused its discretion when it granted the Appellees' motion to strike two exhibits. She also argues that the trial court erred when it granted summary judgment for the Appellees because there are genuine issues of material fact.

[¶2] We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Facts and Procedural History

[¶3] On September 30, 2016, Phifer entered into a twenty-four-month lease agreement with Sherbon LLC for a residence located at 4308 Vinewood Drive in Indianapolis. John Sherby was a member and manager of Sherbon LLC. Phifer moved into the residence with her two children in October. Sherbon LLC transferred ownership of the leased property to Hestia Real Estate LLC in December, but Sherbon continued to act as the landlord of the residence.

[¶4] Shortly after moving into the residence, Phifer realized that the toilet was leaking. Sherbon LLC's contractors attempted to fix the toilet and replaced it at least twice but it continued to leak. In April 2017, Phifer observed what appeared to be mold on the baseboards in the bathroom behind the leaking


toilet. Phifer called the Marion County Public Health Department ("MCPHD") and Sherby to report the presence of mold in the residence.

[¶5] Sherby sent a contractor to the residence to test the apparent mold. Sherby maintains that the test was negative for mold. Jason Krummen, an MCPHD employee, inspected the residence on May 5, 2017. Krummen observed mold growing behind the toilet and under the baseboards. He did not test the substance but concluded that it was mold based on its appearance and moisture readings in the bathroom.

[¶6] The Appellees were ordered to remediate the mold within thirty days. On June 9, 2017, Krummen returned to the residence. Krummen observed that the Appellees had replaced a wall in the bathroom with greenboard, which is designed to prevent mold growth. Krummen did not see any visible mold during his reinspection but noted that the toilet was still leaking, which was the likely cause of the original mold growth. Therefore, he issued an extension letter to the Appellees to fix the toilet.

[¶7] Krummen returned on July 7, 2017. He instructed the Appellees' maintenance worker to open the wall. Krummen observed continued mold growth in the wall and inside a bathroom vanity. During a fourth visit to the residence on July 24, 2017, Krummen saw new mold growth on the baseboards and the wall that had been replaced. Krummen returned to the residence on September 8, 2017, and the moisture readings in the bathroom were high; therefore, he assumed mold would continue to grow as it had previously. MCPHD


performed a final inspection on October 24, 2017. MCPHD did not observe any mold during the final inspection.

[¶8] Shortly after Phifer moved into the residence in October 2016, her children began to suffer from chronic coughing. After the mold was discovered, Phifer suspected that the mold was the cause of her children's symptoms. The children's treating physicians agreed. Both children underwent allergy testing. One of the two children tested allergic for two types of mold, Penicillium and Cladosporium. Both children tested positive for dogs, tree pollens, and ragweed. The Appellees allowed Phifer to terminate her lease, and she and her children moved out of the residence in August 2017.

[¶9] On March 15, 2019, Phifer, on her own behalf and as guardian for her minor children, filed a complaint against the Appellees in Marion Superior Court and alleged that the Appellees had negligently failed to maintain the residence in a reasonably safe condition. The Appellees denied the allegations and filed a motion for summary judgment on November 9, 2021. Phifer submitted several exhibits with her response to the Appellees' motion for summary judgment. The Appellees moved to strike two exhibits. They argued that Exhibit E containing documents from MCPHD should be stricken because the documents were unauthenticated and unverified. They also argued that Exhibit G, containing pediatrician Dr. Megan Gruesser's report, should be stricken because it was not timely filed. The trial court granted the motion to strike.


[¶10] On March 1, 2022, the trial court granted the Appellees' motion for summary judgment.[1] Phifer now appeals.

Motion to Strike

[¶11] Phifer argues that the trial court abused its discretion when it granted the Appellees' motion to strike two of her exhibits. The trial court has broad discretion in ruling on motions to strike in the summary judgment context. Hamilton v. Hamilton, 132 N.E.3d 428, 431-32 (Ind.Ct.App. 2019). The court's decision will not be reversed unless prejudicial error is clearly demonstrated. Id.

[¶12] The trial court struck Phifer's Exhibit E because it contained uncertified and unverified records from MCPHD and the Marion County Assessor's Office. In ruling on a motion for summary judgment, the trial court only considers properly designated evidence which would be admissible at trial. D.H. by A.M.J. v. Whipple, 103 N.E.3d 1119, 1126 (Ind.Ct.App. 2018), trans. denied. Admissible evidence does not include unsworn statements and unverified


exhibits. Zelman v. Capital One Bank N.A., 133 N.E.3d 244, 248 (Ind.Ct.App. 2019).

[¶13] The Assessor's Office and the MCPHD records were not certified. They were also not authenticated pursuant to Indiana Evidence Rule 901(a), which provides,"[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Thus, the documents would not have been admissible at trial.

[¶14] In response, Phifer argues that the Assessor's records would be admissible because the Appellees produced the records to her during discovery. But that an opposing party produces records in discovery does not negate the requirement that the records a party designates to the trial court on summary judgment must be authenticated.

[¶15] For the first time in her reply brief, Phifer claims that the MCPHD records, which include court records of MCPHD's lawsuit against the Appellees for failing to correct the violations at the property at issue are admissible via the doctrine of judicial notice. Appellant's Reply Bt. at 16-17. However, Phifer did


not request the trial court take judicial notice of these records in the trial court, and, thus, we decline do so in the first instance on appeal.[2]

[¶16] The trial court struck Phifer's Exhibit G because it was not timely filed in accordance with Trial Rule 56(C), which provides that a party opposing a motion for summary judgment has thirty days to serve a response or any other opposing affidavits. "When a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response, requesting a continuance under Trial Rule 56(I), 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) (quoting Borsuk v. Town of St. John, 820 N.E.2d 118, 124 n.5 (Ind. 2005)).

[¶17] Phifer attempted to designate Exhibit G several days after the thirty-day time limit had passed. Phifer seeks to circumvent this bright line rule and argues that Exhibit G should not have been stricken because her response to the Appellees' motion for summary judgment was timely filed. Phifer's argument is analogous to a claim that a party should be allowed to file an untimely response where the party previously filed a timely motion for extension of time. But Trial Rule 56 "does not vest a trial court with the discretion to allow a party to file an


untimely response simply because he or she had previously filed a timely motion for extension of time." Welton v. Midland Funding, LLC, 17 N.E.3d 353, 356 (Ind.Ct.App. 2014). Moreover, Rule 56(C) plainly states that "[a]n adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits." (Emphasis added.) Because Phifer failed to file Exhibit G or seek an extension of time to file the exhibit, within the 30-day time limit, the trial court properly struck the exhibit from consideration when ruling on the...

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