ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Stephen Gerald Gray                                    Gregory F. Zoeller
Indianapolis, Indiana                                  Attorney General of Indiana
                                                       Kyle Hunter
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana
__________________________________________________________________________________


                                              In the
                         Indiana Supreme Court                                   Sep 09 2014, 1:56 pm
                              _________________________________

                                      No. 49S04-1406-MI-386

ANTONIO HUGHLEY,
                                                                               Appellant (Defendant),

                                                  v.

STATE OF INDIANA, THE CONSOLIDATED CITY OF INDIANAPOLIS/MARION COUNTY, AND THE
INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT,
                                                                   Appellee (Plaintiffs).
                         _________________________________

               Appeal from the Marion Superior Court, No. 49D01-1110-MI-38687
                             The Honorable David Shaheed, Judge
                         The Honorable Shatrese Flowers, Commissioner
                            _________________________________

       On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1307-MI-352
                             _________________________________

                                         September 9, 2014

Rush, Chief Justice.

       Under Indiana Trial Rule 56, summary judgment is precluded by any “genuine” issue of
material fact—that is, any issue requiring the trier of fact to resolve the parties’ differing accounts
of the truth. Merely resting on the pleadings will not permit the non-movant to raise such an issue,
but a competent affidavit will. Here, Defendant’s affidavit was self-serving and none too detailed—
but it was competent, and it contradicted the State’s designated evidence on a material fact. It was
therefore sufficient to preclude summary judgment, regardless of whether Defendant would likely
prevail at trial. We accordingly reverse the trial court.
                                            Background

       In August 2011, police were seeking a suspect who had led them on a car chase, crashed, and
was last seen near Defendant’s red 1977 Buick, which was parked in front of Defendant Antonio
Hughley’s home a few blocks from the crash. Police knocked on Defendant’s door and obtained
his consent to search for the suspect. The suspect wasn’t there, but apparent cocaine residue and
other indicia of cocaine dealing were in plain view on the kitchen table—leading to a search
warrant and discovery of 550 grams of cocaine, plus further evidence of dealing. Police arrested
Defendant, and a search incident to his arrest revealed $3,871 in cash, mostly $20s, in his front
pocket. A jury convicted him of dealing cocaine and related offenses.

       Thereafter, the State filed civil proceedings seeking forfeiture of Defendant’s cash and car,
alleging that both were proceeds of, or were meant to be used to facilitate, Defendant’s dealing.
After Defendant filed an answer, the State sought summary judgment, designating as evidence the
probable-cause affidavits and judgment of conviction from the underlying criminal proceedings.
In response, Defendant filed an affidavit denying that the cash was connected to his dealing. The
perfunctory affidavit recited his competence to testify and then stated in full:

                   2. The U.S. currency seized from me during my arrest . . . is not
               the proceeds from criminal activity nor was it intended for a violation
               of any criminal statute. I did not intend to use that money for anything
               other [than] legal activities.

                   3. Likewise, my 1977 Buick was never used to transport con-
               trolled substances and it is not the proceeds from any unlawful
               activity.

The trial court granted summary judgment to the State for forfeiture of the cash but denied it as to
the Buick, and Defendant appealed. (The State has not challenged denial of summary judgment as
to the car on appeal or on transfer.)

       The Court of Appeals affirmed, holding that Defendant’s affidavit raised no “specific facts”
to controvert the State’s evidence but instead was only a “general denial”—the type on which a
non-moving party may not rest by the terms of Indiana Trial Rule 56(E). Hughley v. State, No.
49A04-1307-MI-352, slip op. at 2, 2014 WL 684008 (Ind. Ct. App. Feb. 20, 2014). It thus reasoned
that Defendant had failed to establish any genuine issue of material fact that would preclude
summary judgment. Id. We granted transfer.


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                                         Standard of Review

        We review summary judgment de novo, applying the same standard as the trial court:
“Drawing all reasonable inferences in favor of . . . the non-moving parties, 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 judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A fact is ‘material’ if its resolution
would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve
the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting
reasonable inferences.” Id. (internal citations omitted).

        The initial burden is on the summary-judgment movant to “demonstrate[] the absence of
any genuine issue of fact as to a determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an issue for the trier of fact. Id. at 761–
62 (internal quotation marks and substitution omitted). And “[a]lthough the non-moving party has
the burden on appeal of persuading us that the grant of summary judgment was erroneous, we
carefully assess the trial court’s decision to ensure that he was not improperly denied his day in
court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909–10 (Ind. 2009)
(internal quotation marks omitted).

                                      Discussion and Decision

I. Indiana’s Summary Judgment Policies Aim to Protect a Party’s Day in Court.

        Even though Indiana Trial Rule 56 is nearly identical to Federal Rule of Civil Procedure 56,
we have long recognized that “Indiana’s summary judgment procedure . . . diverges from federal
summary judgment practice.” Jarboe v. Landmark Cmty. Newspapers of Ind., Inc, 644 N.E.2d 118,
123 (Ind. 1994). In particular, while federal practice permits the moving party to merely show that
the party carrying the burden of proof lacks evidence on a necessary element, we impose a more
onerous burden: to affirmatively “negate an opponent’s claim.” Id. Our choice to heighten the sum-
mary judgment burden has been criticized because it may let summary judgment be precluded by as
little as a non-movant’s “mere designation of a self-serving affidavit.” E.g., Deuitch v. Fleming, 746
N.E.2d 993, 999–1000 (Ind. Ct. App. 2001), trans. denied.

        That observation is accurate, but using it as the basis for criticism overlooks the policy behind
that heightened standard. Summary judgment “is a desirable tool to allow the trial court to dispose


                                                   3
of cases where only legal issues exist.” Clipp v. Weaver, 451 N.E.2d 1092, 1093 (Ind. 1983) (quoting
Clipp v. Weaver, 439 N.E.2d 1189, 1190 (Ind. Ct. App. 1982)) (internal quotation marks omitted).
But it is also a “blunt . . . instrument,” see Waterfield Mortg. Co., Inc. v. O’Connor, 172 Ind. App.
673, 680, 361 N.E.2d 924, 927 (1977), by which “the non-prevailing party is prevented from
having his day in court,” Ayres v. Indian Heights Volunteer Fire Dept., Inc., 493 N.E.2d 1229, 1234
(Ind. 1986). We have therefore cautioned that summary judgment “is not a summary trial,” id.
(internal quotation marks omitted); and the Court of Appeals has often rightly observed that it “is
not appropriate merely because the non-movant appears unlikely to prevail at trial.” Tucher v.
Brothers Auto Salvage Yard, Inc., 564 N.E.2d 560, 564 (Ind. Ct. App. 1991), trans. denied; see also
LaCava v. LaCava, 907 N.E.2d 154, 166 n.9 (Ind. Ct. App. 2009) (recognizing that the decedent’s
“claim should withstand summary judgment” despite counsel’s “conce[ssion] . . . that he will be
unlikely to prevail” at trial). In essence, Indiana consciously errs on the side of letting marginal cases
proceed to trial on the merits, rather than risk short-circuiting meritorious claims. And with that
relatively high bar in mind, we turn to the Court of Appeals decision.

II. Defeating Summary Judgment Requires Only a “Genuine” Issue of Material Fact—Not
    Necessarily a “Persuasive” One.

        As the Court of Appeals recognized, the forfeiture statute expressly provides that “[m]oney
. . . found near or on a person who is committing, attempting to commit, or conspiring to commit”
certain drug offenses “shall be . . . prima facie evidence that the money . . . has been used or was
to have been used to facilitate” the offenses. Ind. Code § 34-24-1-1(d) (2008). Here, Hughley does
not dispute the State’s designated evidence that the $3,871 at issue was in his pocket when he was
arrested—which, by the terms of the forfeiture statute, establishes the State’s prima facie case that
the cash should be forfeited.

        But the prima facie case is only the beginning of the story—it merely shifts the burden to
Defendant, as the non-movant, to raise a “genuine issue of material fact.” Williams, 914 N.E.2d at
761–62. To do so, he “may not rest upon the mere allegations or denials of his pleading.” T.R.
56(E) (emphasis added). Rather, “his response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for trial.” Id. (emphasis added).
And here, Defendant did not merely rest on his “pleadings”—that is, the complaint, answer, or
counter-, cross-, and third-party claims with answers or replies thereto. T.R. 7(A). Rather, he
designated an affidavit—albeit a perfunctory and self-serving one—that specifically controverted


                                                    4
the State’s prima facie case, denying under oath that the cash or car were proceeds of or used in
furtherance of drug crimes:

                     2. The U.S. currency seized from me during my arrest . . . is not
                 the proceeds from criminal activity nor was it intended for a violation
                 of any criminal statute. I did not intend to use that money for anything
                 other [than] legal activities.

                     3. Likewise, my 1977 Buick was never used to transport con-
                 trolled substances and it is not the proceeds from any unlawful
                 activity.

        That evidence is sufficient, though minimally so, to raise a factual issue to be resolved at
trial, and thus to defeat the State’s summary-judgment motion. An issue of material fact “is ‘genuine’
if a trier of fact is required to resolve the parties’ differing accounts of the truth.” Williams, 914
N.E.2d at 761 (citing Gaboury v. Ireland Road Grace Brethren, Inc., 446 N.E.2d 1310, 1313 (Ind.
1983)). Defendant’s designated evidence clears that low bar. The State’s designations establish a
circumstantial case (defined by statute as prima facie sufficient1) that Defendant’s substantial cash
was proceeds of or used for dealing. But his sworn testimony by affidavit is direct evidence to the
contrary, and so the fact finder must reconcile the credibility of those two accounts.

        Defendant may very well lose such a credibility contest. The State’s circumstantial evidence,
though not conclusive, is certainly compelling. By contrast, Defendant’s affidavit is self-serving and
conspicuously silent on any alternative explanation for how, apart from dealing cocaine, he happened
to be carrying nearly $4,000 in mostly $20 denominations. Without some corroboration, his credi-
bility will likely be dubious. But summary judgment “may not be used as a substitute for trial in
determining factual disputes,” Clipp, 451 N.E.2d at 1093 (internal quotation marks omitted), and
it “is not appropriate merely because the non-movant appears unlikely to prevail at trial.” Tucher,
564 N.E.2d at 564.

        The policy of not short-circuiting the trial process is especially weighty here. The Trial Rules,
including the ones governing summary judgment, apply “in all suits of a civil nature,” T.R. 1—and



1
  Circumstantial evidence necessarily relies on drawing inferences, and conflicting inferences (even from
evidence that is itself undisputed) preclude summary judgment. Williams, 914 N.E.2d at 761. If the statute
did not declare these particular circumstances to be prima facie sufficient, those conflicting inferences would
preclude summary judgment, even if no other evidence were designated.


                                                      5
forfeitures are civil actions, Katner v. State, 655 N.E.2d 345, 347 (Ind. 1995). But because forfeitures
also have significant criminal and punitive characteristics, id., they “are not favored, and should be
enforced only when within both the letter and spirit of the law.” Katner v. State, 640 N.E.2d 388, 390
(Ind. Ct. App. 1994) (internal quotation marks omitted), adopted and incorporated by reference, 655
N.E.2d at 347. Ensuring that parties are not prematurely denied their day in court is always important,
but it is especially vital before exacting criminal-like penalties.

       Thus, even though Defendant’s designated evidence was rather thin, it was enough to pre-
clude summary judgment for the State. As Deuitch hinted, the real probative value of an affidavit
like Defendant’s may be minimal, since an unscrupulous litigant could defeat summary judgment
merely by filing a perjurous affidavit. 746 N.E.2d at 999–1000. But we have always considered an
oath, subject to penalties for perjury, to be an adequate deterrent against false testimony—hence the
Rule 56(C) requirement to designate evidence, and not merely rest on unsworn pleadings. Moreover,
Trial Rule 56(G) protects the integrity of the summary judgment process by providing an additional
deterrent: monetary liability for the opposing party’s costs and attorney fees resulting from an
affidavit “presented in bad faith or solely for the purpose of delay,” plus the prospect of contempt
against “any offending party or attorney” (emphasis added). Finally, Defendant’s trial testimony
may provide additional details to flesh out his cursory affidavit (though if so, it would have been
wise to include them in the affidavit). In either event, existing procedural safeguards are adequate to
balance the integrity of summary judgment against our concern for not prematurely closing the court-
house doors to the non-moving party, without raising the non-movant’s burden beyond what our
precedent has long required.

                                             Conclusion

       “Summary judgment should not be granted when it is necessary to weigh the evidence.”
Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571 N.E.2d 282, 285 (Ind. 1991). Because Defen-
dant designated competent evidence in response to the State’s motion for summary judgment,
weighing it—no matter how decisively the scales may seem to tip—was a matter for trial, not
summary judgment. The trial court’s judgment is therefore reversed, and we remand this matter
with instructions to deny the State’s motion for summary judgment.

Dickson, Rucker, David, and Massa, JJ., concur.



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