                                                                              FILED
                                                                       Dec 10 2018, 8:48 am

                                                                              CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE:
Chris E. Harkins                                          SHANNON WESTMEYER
Bunker Hill, Indiana                                      Scott E. Andres
                                                          Charles J. Maiers
                                                          Due Doyle Fanning & Alderfer,
                                                          LLP
                                                          Indianapolis, Indiana

                                                          ATTORNEY FOR APPELLEE:
                                                          JON NIKLAS
                                                          Michelle L. Burden
                                                          Garvey, Shearer, Nordstrom, PSC
                                                          Fort Mitchell, Kentucky

                                                          ATTORNEY FOR APPELLEE:
                                                          ANGIE HARKINS
                                                          Nicole A. Mitchell
                                                          Freund, Freeze & Arnold
                                                          West Chester, Ohio

                                                          ATTORNEY FOR APPELLEE:
                                                          JANET L. HARKINS
                                                          Alan R. Trenz
                                                          Trenz & Knabe Co., LPA
                                                          Harrison, Ohio




                                            IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018                     Page 1 of 24
      Chris E. Harkins,                                         December 10, 2018
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                15A01-1703-CT-530
              v.                                                Appeal from the Dearborn
                                                                Superior Court
      Shannon Westmeyer,                                        The Honorable Sally McLaughlin,
      Jon Niklas, Angie Harkins, and                            Judge
      Janet Harkins,                                            Trial Court Cause No.
      Appellees-Defendants.                                     15D02-1510-CT-038




      Tavitas, Judge.


                                              Case Summary
[1]   Chris E. Harkins (“Harkins”), pro se, appeals the trial court’s grant of summary

      judgment in favor of Shannon Westmeyer, Jon Niklas, Angie Harkins

      (“Angie”), and Janet Harkins (“Janet”). We affirm.


                                                     Issues
[2]   Harkins raises two issues on appeal, which we restate as:


              I. Whether the trial court erred in striking Harkins’ response
              materials as untimely filed.


              II. Whether the trial court erred in granting summary judgment
              in favor of Westmeyer, Niklas, Angie, and Janet.




      Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018           Page 2 of 24
                                                      Facts
[3]   The parties involved in this case are relatives, with the exception of Niklas.

      Harkins and Westmeyer are siblings. Angie is Harkins’ and Westmeyer’s

      cousin. Angie’s mother, Janet, is Harkins’ and Westmeyer’s aunt.


[4]   In April 2012, Harkins moved in with his and Westmeyer’s parents, James and

      Cheryl Harkins (the “Parents”). While living in the Parents’ home, Harkins

      obtained access to the Parents’ personal financial records. Harkins

      subsequently moved out of the Parents’ home and into an apartment (“the

      Apartment”) located in Aurora, Indiana. Niklas was Harkins’ landlord.

      Harkins’ ex-wife, Dawn Harkins (“Dawn”), had a key to the Apartment.


[5]   Using the Parents’ financial information, Harkins (1) forged checks on the

      Parents’ accounts; (2) cashed the checks and deposited the proceeds into bank

      accounts in Harkins’ name; (3) fraudulently added himself as an authorized

      user on the Parents’ existing credit accounts; (4) rerouted the Parents’ credit

      card statements to the Apartment; and (5) made unauthorized credit card

      purchases in excess of $37,000 on the Parents’ credit cards. Harkins also stole

      and pawned multiple pieces of the Parents’ jewelry. Harkins sold many of the

      items he purchased with the Parents’ credit cards “for gambling funds.” Harkins

      v. State, No. 15A01-1412-CR-553, slip op. at 4 (Ind. Ct. App. Nov. 2, 2015).


[6]   Harkins was arrested on June 3, 2014. After Harkins’ arrest, Harkins

      authorized Dawn to enter the Apartment and to retrieve personal items

      belonging to Harkins’ and Dawn’s son. On June 4, 2014, Westmeyer, Angie,

      Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 3 of 24
      and Janet accompanied Dawn to the Apartment. It is undisputed that Dawn

      unlocked the Apartment with her key and granted Westmeyer, Angie, and

      Janet access to the Apartment. Harkins contends that Westmeyer, Angie, and

      Janet removed and disposed of valuable items of Harkins’ personal property.

      Westmeyer, Angie, and Janet maintain that they removed only personal

      property items and furniture that belonged to the Parents or to other family

      members.


[7]   On August 6, 2014, the State charged Harkins with various offenses and with

      being a habitual offender. After a jury trial, Harkins was convicted of five

      counts of forgery, Class C felonies; two counts of identity deception, Class D

      felonies; two counts of credit card fraud, Class D felonies; one count of

      deception, a Class A misdemeanor; and of being a habitual offender. Harkins

      was sentenced to a twenty-two-year term in the Department of Correction and

      is presently incarcerated in the Miami Correctional Facility in Bunker Hill,

      Indiana. 1


[8]   On October 9, 2015, Harkins filed a pro se suit for damages against Westmeyer,

      Angie, Janet, and Niklas. In Count I, which Harkins titled

      “[w]rongful/[f]raudulent conversion,” Harkins alleged that Westmeyer: (1)

      enlisted Niklas’ assistance to gain entry to the Apartment; (2) recruited Janet




      1
       On November 2, 2015, we affirmed Harkins’ convictions on direct appeal. Harkins, No. 15A01-1412-CR-
      553, slip op. at 20.




      Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018               Page 4 of 24
       and Angie; (3) removed and transported Harkins’ personal property to a local

       Goodwill donation site; and (4) maliciously and intentionally deprived Harkins

       of his property without communicating the disposition of the items. Appellee

       Westmeyer’s App. Vol. II pp. 22-23.


[9]    In Count II, Harkins alleged that Westmeyer drove his truck or directed his

       truck to be driven to a location at which the keys and keyless entry remote were

       locked inside. Harkins sought damages for the costs of replacing and repairing

       “a window [that] was . . . broken to gain access into the truck.” Id. at 24.


[10]   In Count III, Harkins alleged that, despite Niklas’ knowledge that Niklas’

       tenant, Harkins, was incarcerated, Niklas exercised unauthorized control over

       Harkins’ property and acted “willfully, intentionally and negligently” in

       “opening or making accessible the apartment” to Westmeyer, Angie, and Janet,

       without providing notice to Harkins as required by law. Id. at 26.


[11]   In Count IV, Harkins alleged that Westmeyer “acted with the specific and

       purposeful intentions to inflict emotional distress” when Westmeyer removed

       Harkins’ personal property and “acted with malicious intent to cause [Harkins]

       to suffer emotionally . . . on the belief that [Harkins] had wronged their

       parents.” Id.


[12]   In Count V, Harkins alleged that Janet and Angie aided Westmeyer in

       exercising unauthorized control over his property “with the intent to forever

       deprive” Harkins thereof. Id. at 28.



       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 5 of 24
                                    I. Motions for Summary Judgment

                                                  A. Westmeyer

[13]   On March 2, 2016, Westmeyer served Harkins with requests for admissions

       (“RFAs”), which included the following:


               15. Shannon Westmeyer did not remove any of your personal
               property from your apartment.


               16. Any property that Shannon Westmeyer removed from
               your apartment did not belong to you.


       Appellee Westmeyer’s App. Vol. II pp. 3-4. Harkins did not respond to the

       RFAs. Westmeyer also served Harkins with interrogatories. In Harkins’

       answers to Westmeyer’s interrogatories, Harkins admitted that, after his arrest,

       Harkins granted Dawn permission to enter the Apartment and to retrieve items

       belonging to their son.


[14]   On June 2, 2016, Westmeyer, by counsel, filed a motion for summary

       judgment. On July 18, 2016, the trial court granted Harkins “an extension of

       45 days from the date of th[e] order to respond to [ ]Westmeyer’s Motion for

       Summary Judgment”; accordingly, Harkins’ response to Westmeyer’s motion

       for summary judgment was due on September 1, 2016. On September 6, 2016,

       Harkins filed his response in opposition to Westmeyer’s motion for summary

       judgment, including Harkins’ own affidavit, a subpoena request regarding

       Dawn, and Harkins’ designation of evidence (collectively, “response




       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 6 of 24
       materials”). 2 Harkins also designated the appellees’ answers to his complaint,

       the appellees’ affidavits, and the other documents filed by Westmeyer, Angie,

       and Janet.


                                B. Angie’s Motion for Summary Judgment

[15]   On July 5, 2016, Angie filed a motion for summary judgment. In support,

       Angie designated an affidavit and incorporated all materials designated by

       Westmeyer in support of Westmeyer’s motion for summary judgment. Harkins

       moved for additional time in which to respond. On September 6, 2016, the trial

       court granted Harkins an additional thirty days from the date of its order to

       respond to Angie’s motion for summary judgment; accordingly, Harkins’

       response to Angie’s motion for summary judgment was due on October 6,

       2016. Harkins did not file a response to Angie’s motion for summary

       judgment.


                                C. Janet’s Motion for Summary Judgment

[16]   On June 24, 2016, Janet filed a motion for summary judgment and designated

       an affidavit in support. Harkins filed a motion for additional time to respond.

       On September 6, 2016, the trial court granted Harkins an additional thirty days

       to respond; accordingly, Harkins’ response to Janet’s motion for summary

       judgment was due on October 6, 2016. Harkins did not file a response.




       2
         On appeal, Harkins has supplied us with his two-page list of designated materials; however, he has not
       included the response materials in his appellant’s appendix.

       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018                      Page 7 of 24
                               D. Niklas’ Motion for Summary Judgment

[17]   On October 20, 2016, Niklas filed a motion for summary judgment. Niklas

       designated Harkins’ responses to Westmeyer’s RFAs as well as all materials

       designated by Westmeyer, Janet, and Angie. Harkins filed a motion for

       additional time to respond. On November 29, 2016, the trial court granted

       Harkins an additional thirty days to respond; accordingly, Harkins’ responsive

       filing was due on December 29, 2016. Harkins did not file a response.


                             II. Summary Judgment Hearings and Rulings

[18]   On October 7, 2016, the trial court conducted a hearing on the motions for

       summary judgment filed by Westmeyer, Angie, and Janet. Westmeyer, Angie,

       and Janet moved, pursuant to Indiana Trial Rule 56(C), to strike, as untimely,

       Harkins’ response materials to Westmeyer’s motion for summary judgment.

       The trial court granted the motion and ordered Harkins’ response materials and

       other filings stricken.


[19]   On December 12, 2016, the trial court entered summary judgment in favor of

       Westmeyer, Angie, and Janet. In its order, the trial court stated:


                      * * * * * Ind. T.R. 56 states that “an adverse party shall
               have thirty days after service of the motion to serve a response
               and any opposing affidavits.” Id. Additionally, it instructs “at
               the time of filing the motion or response, a party shall designate
               to the Court all parts of pleadings, depositions, answers to
               interrogatories, admissions, matters of judicial notice, and any
               other matters in which it relies for purposes of the motion.” Id.
               In Allstate Insurance Co. v. Hatfield, 28 N.E.3d 247 (Ind. Ct. App.
               2015), the Court of Appeals found that where a Plaintiff did not

       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 8 of 24
               respond to a Motion for Summary Judgment until 35 days after
               the motion was filed nor requested an extension of time, that the
               Defendant’s Motion to Strike any late filed responses should be
               granted.


       Here, [Harkins] failed to respond timely and [Westmeyer’s, Angie’s,
       and Janet’s] evidence contains no genuine issue of material fact and on
       this basis summary judgment should be denied [sic 3].


               WHEREFORE, the Court finds that [Harkins’] submissions and
               testimony in response to [the] Motions For Summary Judgment
               [filed by Westmeyer, Angie, and Janet] shall be stricken and
               summary judgment shall be granted in favor of the Defendants,
               Shannon Westmeyer, Janet Harkins and Angie Harkins.


       Appellant’s App. Vol. II pp. 17-18.


[20]   On January 13, 2017, the trial court conducted a hearing on Niklas’ motion for

       summary judgment. On February 13, 2017, the trial court entered summary

       judgment in favor of Niklas on virtually identical grounds as the trial court cited

       regarding the motions for summary judgment filed by Westmeyer, Janet, and

       Angie. Harkins now appeals.


                                                     Analysis
[21]   Harkins appeals the grant of summary judgment in favor of Westmeyer, Angie,

       Janet, and Niklas. Summary judgment is appropriate only when the moving




       3
         Upon a showing that no genuine issues of material fact existed, the appellees’ motions for summary
       judgment would be granted, not denied.

       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018                     Page 9 of 24
       party shows there are no genuine issues of material fact for trial and the moving

       party is entitled to judgment as a matter of law. Erie Indem. Co. for Subscribers at

       Erie Ins. Exch. v. Estate of Harris by Harris, 99 N.E.3d 625, 629 (Ind. 2018), reh’g

       denied; see also Ind. Trial Rule 56(C). Once that showing is made, the burden

       shifts to the nonmoving party to designate appropriate evidence to demonstrate

       the actual existence of a genuine issue of material fact. Schoettmer v. Wright, 992

       N.E.2d 702, 705-06 (Ind. 2013). When ruling on the motion, the trial court

       construes all evidence and resolves all doubts in favor of the non-moving

       party. Id. at 706. We review the trial court’s ruling on a motion for summary

       judgment de novo, and we take “care to ensure that no party is denied his day

       in court.” Id. “We limit our review to the materials designated at the trial

       level.” Gunderson v. State, Indiana Dep’t of Nat. Res., 90 N.E.3d 1171, 1175 (Ind.

       2018).


[22]             An “adverse party shall have thirty (30) days after service of the
                motion to serve a response and any opposing affidavits.” T.R.
                56(C). If opposing the motion, the adverse party is 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 the purposes of the motion.”
                When a non-moving party does not respond to a summary
                judgment motion within thirty days, the trial court cannot
                consider summary judgment filings that party subsequently
                makes. While a party who does not respond to a motion for
                summary judgment may be limited to the facts established by the
                movant’s submissions, such failure to respond does not preclude
                argument of the relevant law on appeal.




       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 10 of 24
       Quirk v. Delaware Cty., 91 N.E.3d 1008, 1014 (Ind. Ct. App. 2018) (internal

       citations omitted).


[23]   A non-moving party’s failure to file a cross-motion for summary judgment, to

       file a brief in opposition to summary judgment, or to designate any evidence to

       demonstrate the existence of a genuine issue of material fact does not entitle the

       movant to summary judgment by default. Larson v. Karagan, 979 N.E.2d 655,

       659 (Ind. Ct. App. 2012). Nor is a trial court required to grant an unopposed

       motion for summary judgment. Id.


                                     I.      Striking of Response Materials

[24]   Harkins argues that the trial court erred in failing to apply the prison mailbox

       rule and in striking Harkins’ response materials as untimely filed.


[25]   In 2010, our supreme court expressly adopted the “prison mailbox rule” as a

       mechanism to gauge the timeliness of court filings made by incarcerated

       persons. Dowell v. State, 922 N.E.2d 605, 607 (Ind. 2010) (quoting Houston v.

       Lack, 487 U.S. 266, 108 S. Ct. 2379 (1988)). The “prison mailbox rule”

       recognizes that pro se “prisoners cannot personally travel to the courthouse to

       see that the notice is stamped ‘filed’ or to establish the date on which the court

       received the notice.” Id.


[26]   The prison mailbox rule provides that “a pro se incarcerated litigant who

       delivers a [document] to prison officials for mailing on or before its due date

       accomplishes a timely filing”; and the document is deemed “filed” on the date

       of submission to prison officials. Id. at 607. A pro se prisoner must provide

       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 11 of 24
       “reasonable, legitimate, and verifiable documentation supporting a claim that a

       document was timely submitted to prison officials for mailing.” Id. at 608.

       “Where a prisoner’s proof is lacking, however, the opposite result obtains.” Id.


[27]   Here, Harkins argues that he “handed his legal mail to the facility personnel on

       September 6, 2016 for mailing to the court and the parties to the action.”

       Appellant’s Br. pp. 9-10. Harkins also “obtained a letterhead statement from

       the facility administration explaining the reason the mail containing the

       [response materials] was late in reaching the court.” Id. at 9 (citing Appellant’s

       App. Vol. II p. 48). The “letterhead statement,” dated September 23, 2016, is

       captioned “Misplaced Legal Mail” and purports to be written by Miami

       Correctional Facility library supervisor, Jessica Rhodes. The letter states:


               Offender Harkins, Chris DDC#253607 provided in accordance
               with facility policy five (5) large envelopes containing legal
               documents and marked as “legal Mail” on Tuesday September 6,
               2016 for mailing. The envelopes were handed to the Law
               Librarian responsible for overseeing the logging of the addresses
               of the outgoing legal mail. A remittance slip was attached and
               properly filled out by Harkins requesting first class postage be
               applied to the mail and charged against his inmate trust account.
               A security signal was called at appox [sic] 1500hrs on Tuesday
               September 6, 2016 and the library was then cleared of all
               personnel. This triggered a chain of events causing Offender
               Harkins’s mail amongst others to be left unintentionally in a
               postal mailbox that went unnoticed until Thursday September
               22, 2016. Offender Harkins has requested by way of emergency
               grievance that the Court and his adversary [sic] be made aware
               that the attempted mailing failed by no fault of the offender.




       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 12 of 24
       Appellant’s App. Vol. II p. 48. Harkins’ responsive materials also bear a

       certificate of service, dated September 6, 2016.


[28]   Notably, Ms. Rhodes’ letter is not a sworn affidavit submitted under penalty of

       perjury; however, we will give Harkins the benefit of the doubt here and find

       that “the evidence taken as a whole create[s] a presumption that Harkins

       functionally filed his documents” on September 6, 2016. See Dowell, 922

       N.E.2d at 608. Accordingly, we agree with Harkins that, by application of the

       prison mailbox rule, Harkins’ response materials, which were due to be filed

       with the trial court on September 1, 2016, were functionally “filed” on

       September 6, 2016, when he delivered them to prison personnel.


[29]   Next, Harkins argues that his September 6, 2016 filing, which was due to the

       trial court on September 1, 2016, was timely because (1) Harkins received by

       mail the trial court’s order granting Harkins a forty-five-day extension of time to

       respond to Westmeyer; and (2) pursuant to Indiana Trial Rule 6(E), Harkins

       was, therefore, entitled to an automatic three-day extension. Specifically,

       Harkins argues that, applying the Rule 6(E) three-day extension to the

       September 1, 2016 deadline, Harkins’ responsive deadline was Sunday,

       September 4, 2016; the following day, September 5, 2016, was the Labor Day

       holiday; and, therefore, Harkins’ response materials were timely filed on

       September 6, 2016. See Trial Rule 6(A). We cannot agree.


[30]   Rule 6(E) states,




       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 13 of 24
               Whenever a party has the right or is required to do some act or
               take some proceedings within a prescribed period after the service
               of a notice or other paper upon him and the notice or paper is
               served upon him by mail, three days shall be added to the
               prescribed period.


       Ind. T.R. 6(E).


[31]   In McDillon v. Northern Indiana Public Service Co., 841 N.E.2d 1148, 1151 (Ind.

       2006), our supreme court considered “whether [Rule 6(E)] properly applies to

       extend the commencement of deadlines following all court orders, including

       those deadlines triggered by the entry of an order or happening of an event, or

       only by those deadlines that are triggered by service of a court order.”


[32]   Our supreme court’s unequivocal answer to this question is that not all court

       orders receive the benefit of the Rule 6(E) automatic three-day extension. As

       the McDillon court held, Rule 6(E) applies:


               only when a party has a right or is required to do some act within
               a prescribed period after the service of a notice or other paper. It
               does not apply to extend periods that are triggered by the mere entry of
               the order or the happening of an event other than the service of notice or
               other paper.


       841 N.E.2d at 1152 (emphasis supplied).


[33]   In its analysis, the McDillon court set out various examples of time periods to

       which the Rule 6(E) automatic three-day extension “would apply,” id. at 1151:


               Ind. Trial Rule 6(C) (responsive pleading required to be served
               “within 20 days after the service of the prior pleading”); Ind. Trial
       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018     Page 14 of 24
               Rule 33(C) (responses to interrogatories due “not less than thirty
               (30) days after service thereof”); Ind. Trial Rule 56(C) (adverse
               party has “thirty days after service of the motion to serve a
               response and any opposing affidavits”).


       Id. (quoting Annon II, Inc. v. Rill, 597 N.E.2d 320, 324-25 (Ind. Ct. App. 1992)).


[34]   In each of the examples cited by the McDillon court in which Rule 6(E) was

       used to extend the deadline for certain filings, the deadline was triggered by

       service or notice—not, as here, “from the date of [an] order” by the trial

       court. This small difference in language is important. For example, McDillon

       cites Baker v. Sihsmann, 315 N.E.2d 386, 387 (Ind. Ct. App. 1974), to

       demonstrate allowance of the three-day extension when the response period

       began “the day after receipt of the summons.” McDillon, 841 N.E.2d at 1151

       (emphasis added). McDillon also cites Yaksich v. Gastevich, 440 N.E.2d 1138,

       1139 n.2 (Ind. Ct. App. 1982) as an example, which allowed the three-day

       extension when the period was triggered “after notice of the order.” McDillon,

       841 N.E.2d at 1152 (emphasis added). These examples are consistent with the

       McDillon court’s conclusion that Rule 6(E) applies when the deadline to respond

       is triggered by service or notice to a party and not, as here, when the deadline is

       triggered by the date of an order.


[35]   Stated differently, there are essentially two requirements for the three-day

       extension to apply. First, the time period for a filing must be triggered by

       service of a paper. Second, service to the individual must be completed by mail.

       In this case, while Harkins was in fact served by mail, the first requirement is


       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 15 of 24
       not met. The order granting Harkins’ motion for extension of time granted

       Harkins “an extension of 45 days from the date of this order to respond to

       Defendant Shannon Westmeyer’s Motion for Summary Judgment.” 4

       Appellant’s App. p. 27 (emphasis added). Harkins’ forty-five-day extension

       period was not a prescribed period after service but, rather, was a period that was

       merely “triggered by” the entry of the trial court’s order extending Harkins’

       time to respond to Westmeyer. See McDillon, 841 N.E.2d at 1152.


[36]   Guided by McDillon’s explicit holding, we conclude that the forty-five-day

       enlargement period does not receive the benefit of Rule 6(E) because the period

       was merely triggered by the trial court’s entry of the enlargement order. A

       finding otherwise would afford all court orders the benefit of Rule 6(E), which

       would contravene the McDillon court’s explicit holding that Rule 6(E) properly

       applies only to extend the commencement of deadlines that are triggered by

       service.


[37]   For these reasons, we find that the automatic three-day extension pursuant to

       Rule 6(E) does not apply to extend Harkins’ deadline from September 1, 2016.

       The trial court, therefore, did not err in deeming Harkins’ September 6, 2016




       4
         For our purposes, the time period to be analyzed here is not Harkins’ initial time period to respond
       following service of Westmeyer’s motion for summary judgment. Rule 6(E) “would apply” to that period, as
       that period was triggered by service upon Harkins of Westmeyer’s motion for summary judgment. See 841
       N.E.2d at 1151. Rather, the time period at issue here is the ensuing forty-five-day enlargement window.




       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018                Page 16 of 24
       response materials to be untimely filed and ordering Harkins’ response

       materials stricken.


                                    II. Motions for Summary Judgment

                                                    A. Westmeyer

[38]   Lastly, we turn to Harkins’ contentions that genuine issues of material fact

       precluded entry of summary judgment in favor of Westmeyer, Angie, Janet,

       and Niklas. We begin with Harkins’ claims of tortious conversion and

       intentional infliction of emotional distress as to Westmeyer. Harkins contends

       that Westmeyer exercised unauthorized control of Harkins’ property and,

       thereby, caused Harkins to suffer emotional distress.


[39]   Tortious conversion is appropriating another’s personal property for the

       tortfeasor’s own use and benefit, in exclusion and defiance of the owner’s

       rights, and under an inconsistent claim of title. Campbell v. Criterion Grp., 621

       N.E.2d 342, 346 (Ind. Ct. App. 1993).


[40]   Intentional infliction of emotional distress is “committed by ‘one who by

       extreme and outrageous conduct intentionally or recklessly causes severe

       emotional distress to another.’” Board of Trustees of Purdue University v. Eisenstein,

       87 N.E.3d 481, 500 (Ind. Ct. App. 2017), trans. denied.


               The elements of intentional infliction of emotional distress are
               that a defendant (1) engages in extreme and outrageous conduct
               that (2) intentionally or recklessly (3) causes (4) severe emotional
               distress to another. “The requirements to prove this tort are
               ‘rigorous.’” “Intentional infliction of emotional distress is found

       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 17 of 24
               where conduct exceeds all bounds usually tolerated by a decent
               society and causes mental distress of a very serious kind.”
               “Liability has been found only where the conduct has been so
               outrageous in character, and so extreme in degree, as to go
               beyond all possible bounds of decency, and to be regarded as
               atrocious, and utterly intolerable in a civilized community.” In
               the appropriate case, an intentional infliction of emotional
               distress claim may be disposed of by summary judgment.


       Id. at 500-01 (internal citations omitted).


[41]   Pursuant to Indiana Trial Rule 36(A), a party may serve upon any other party a

       written request for the admission of the truth of any matters covered under

       Indiana Trial Rule 26(B), which governs the scope of discovery. “The matter is

       admitted unless, within a period designated in the request . . . the party to

       whom the request is directed serves upon the party requesting the admission a

       written answer or objection addressed to the matter, signed by the party or by

       his attorney.” Ind. Trial Rule 36(A).


[42]   Matters admitted are deemed conclusively established, unless the trial court

       permits withdrawal or amendment of the admission. Ind. Trial Rule 36(B);

       Gen. Motors Corp., Chevrolet Motor Div. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885,

       888-89 (Ind. 1991). When a party fails to timely answer requests for admission

       and the result of such failure is the admission of all facts material to the lawsuit,

       nothing remains to litigate, and the requesting party is entitled to summary

       judgment. Bryant v. County Council of Lake County, 720 N.E.2d 1, 6 (Ind. Ct.

       App. 1999), trans. denied.



       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 18 of 24
[43]   In Westmeyer’s motion for summary judgment, Westmeyer designated her

       RFAs to Harkins, which stated:


               15. Shannon Westmeyer did not remove any of your personal
               property from your apartment.


               16. Any property that Shannon Westmeyer removed from
               your apartment did not belong to you.


       Westmeyer’s App. Vol. II pp. 3-4. Harkins never responded to Westmeyer’s

       RFAs, and they were deemed admitted.


[44]   Additionally, to demonstrate the absence of a genuine issue of material fact as

       to whether Westmeyer committed conversion, Westmeyer designated an

       affidavit in which she averred that: (1) she removed only “paperwork . . . that

       rightfully belonged to” the Parents, including “bank statements, credit card

       statement, and tax returns”; “[a] printer/scanner/fax machine contain[ing]

       sensitive information concerning” the Parents because “Janet Harkins, who was

       there with [Westmeyer], identified it as one that [Janet] personally gave to” the

       Parents; and “a piece of art work” that Harkins had offered to give Westmeyer

       before the above-mentioned events; and (2) Westmeyer did not drive Harkins’

       2001 Ford F-150 pickup truck or lock the truck keys inside the pickup truck.

       Westmeyer’s App. pp. 73-74.


[45]   Further, as to Harkins’ claim of intentional infliction of emotional distress,

       which was predicated upon the alleged tortious conversion of Harkins’ personal

       property, Westmeyer averred that, after Harkins was arrested for defrauding the

       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 19 of 24
       Parents, Westmeyer merely retrieved and returned to the Parents items that the

       Parents owned and/or purchased. This is not outrageous conduct that would

       support an intentional infliction of emotional distress claim.


[46]   By Harkins’ failure to respond to Westmeyer’s RFAs, the matters asserted in

       those RFAs were deemed admitted and conclusively established. See id.

       Harkins, thereby, admitted that Westmeyer did not remove Harkins’ personal

       property from the Apartment. As to Westmeyer, all issues dispositive of

       Harkins’ conversion claim and the related emotional distress claim are

       conclusively established by operation of Trial Rule 36, and no issues remain to

       be litigated.


[47]   Westmeyer established the absence of any genuine issues of material fact as to

       whether she committed tortious conversion or intentional infliction of

       emotional distress. Westmeyer also established her entitlement to judgment as

       a matter of law. Accordingly, the trial court did not err in entering summary

       judgment in Westmeyer’s favor.


                                                        B. Angie

[48]   Next, Harkins argues that genuine issues of material fact precluded entry of

       summary judgment in favor of Angie on Harkins’ claims of tortious conversion

       and infliction of emotional distress.


[49]   As to Harkins’ tortious conversion claim, Angie designated her affidavit in

       which she averred that she only retrieved items that were purchased by or

       belonged to the Parents from the Apartment, including clothing, towels, “quilts

       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 20 of 24
       and knick-knacks”; items belonging to Dawn’s and Harkins’ son; and an

       heirloom desk that belonged to Harkins’ maternal grandmother. Appellee

       Angie’s Br. p. 13. Angie averred that she delivered all of the items that she

       removed from the Apartment to the Parents and that Angie retained none of the

       items. Angie also denied that she drove Harkins’ truck, locked his truck keys

       inside, or removed Harkins’ paperwork, office equipment, or artwork.


[50]   As to Harkins’ claim of intentional infliction of emotional distress, Angie

       designated an affidavit in which Angie averred that, after Harkins was arrested

       for defrauding the Parents, Angie retrieved and returned to the Parents items

       from the Apartment that the Parents owned and/or purchased. This is not

       outrageous conduct that would support an intentional infliction of emotional

       distress claim.


[51]   After Angie designated evidence to support her claim that no genuine issues of

       material fact existed regarding Harkins’ claims of tortious conversion and

       intentional infliction of emotional distress, the burden shifted to Harkins to

       present contrary evidence showing an issue for the trial court. Harkins,

       however, failed to respond to Angie’s motion for summary judgment and has

       not carried his burden. Accordingly, Angie is entitled to judgment as a matter

       of law.


[52]   Because Harkins failed to demonstrate that genuine issues of material fact

       existed with regard to his claims of conversion and intentional infliction of

       emotional distress against Angie, and Angie showed that she is entitled to


       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 21 of 24
       judgment as a matter of law, we conclude that the trial court did not err in

       granting summary judgment in Angie’s favor.


                                                        C. Janet

[53]   Next, Harkins argues that genuine issues of material fact precluded entry of

       summary judgment in favor of Janet on his claims of tortious conversion and

       infliction of emotional distress.


[54]   In support of her motion for summary judgment, Janet designated her affidavit

       in which she averred that she “did not remove or retain any items taken from

       [Harkins’] apartment” and “only assist[ed] . . . in the sorting and recovery of

       property that Janet understood was not owned by Harkins.” Appellee Janet’s

       Br. p. 21; Janet’s App. Vol. II p. 48. After Janet designated evidence to support

       her argument that no genuine issues of material fact existed and that Janet is

       entitled to judgment as a matter of law, the burden shifted to Harkins to present

       contrary evidence showing an issue for the trial court. Harkins failed to

       respond to Janet’s motion for summary judgment and has not carried his

       burden.


[55]   For reasons stated above as to Angie, we conclude that Harkins failed to

       demonstrate that genuine issues of material fact existed with regard to his

       claims of conversion and intentional infliction of emotional distress against

       Janet and that Janet has demonstrated she is entitled to judgment as a matter of

       law. The trial court did not err in entering summary judgment in Janet’s favor.




       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 22 of 24
                                                       D. Niklas

[56]   Harkins argues that genuine issues of material fact precluded entry of summary

       judgment in Niklas’ favor. In Harkins’ complaint, Harkins alleged that Niklas:

       (1) acted with deliberate indifference and culpable negligence in allowing

       Westmeyer, Angie, Janet, and Dawn to enter the Apartment, without notice to

       Harkins; and (2) lacked authority to grant anyone access to Harkins’

       Apartment.


[57]   In Niklas’ designated motion for summary judgment materials, Niklas averred

       that he did not unlock the Apartment; and that Dawn unlocked the Apartment

       with her own key. Niklas also designated Harkins’ answers to Westmeyer’s

       interrogatories, in which Harkins admitted that he granted Dawn permission to

       enter the Apartment after his arrest. Niklas’ App. Vol. II p. 59. The burden

       then shifted to Harkins to present contrary evidence showing an issue for the

       trial court; however, Harkins failed to respond to Niklas’ motion for summary

       judgment. Harkins failed to carry his burden of demonstrating that genuine

       issues of material fact existed with regard to Niklas’ role in the removal of items

       from the Apartment; and, thus, Niklas has demonstrated that he is entitled to

       judgment as a matter of law. The trial court did not err in granting summary

       judgment in favor of Niklas.


                                                  Conclusion
[58]   No genuine issues of material fact exist as to Harkins’ claims of conversion and

       infliction of emotional distress against Westmeyer, Angie, and Janet. Nor do


       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 23 of 24
       any genuine issues of material fact exist regarding Harkins’ claims that Niklas

       acted with deliberate indifference and culpable negligence in facilitating the

       entry of Westmeyer, Angie, and Janet into the Apartment. We conclude that

       the trial court did not err in finding that Westmeyer, Angie, Janet, and Niklas

       were entitled to judgment as a matter of law and in granting summary judgment

       in their favor. We affirm.


[59]   Affirmed.


[60]   Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018   Page 24 of 24
