MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                               Jun 19 2019, 9:25 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Andrea L. Ciobanu                                        Jeff Mitchell
Ciobanu Law, P.C.                                        American Family Mutual
Indianapolis, Indiana                                    Insurance Company
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

C.D.Q., b/n/f Rita Peoples, Rita                         June 19, 2019
Peoples, and Keith Peoples,                              Court of Appeals Case No.
Appellants-Plaintiffs,                                   18A-CT-2109
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable David J. Dreyer,
McDonald’s Corporation,                                  Judge
Appellee-Defendant                                       Trial Court Cause No.
                                                         49D10-1802-CT-7971



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-2109 | June 19, 2019                   Page 1 of 6
[1]   C.D.Q., by next friend Rita Peoples, and Rita and Keith Peoples (collectively,

      the Appellants) appeal the trial court’s order granting summary judgment in

      favor of McDonald’s Corporation (McDonald’s). Finding that McDonald’s

      failed to respond to discovery requests before seeking summary judgment, that

      those requests were directly relevant to matters at issue, and that it would be

      unfair to resolve a case by summary judgment under these circumstances, we

      reverse and remand for further proceedings.


                                                     Facts
[2]   On December 22, 2017, the Appellants stopped at a McDonald’s restaurant in

      Indianapolis to purchase and eat food. Ten-year-old C.D.Q. was sitting on a

      stool while he ate his food. He shifted his weight to get off the stool and the

      bottom of the stool lifted off the floor and broke, causing C.D.Q. to fall and hit

      the floor. C.D.Q. required medical attention and suffered pain in his lower

      back and leg as a result of the incident.


[3]   On February 28, 2018, the Appellants filed a complaint against McDonald’s,

      alleging that they suffered damages as a result of negligence, negligence per se,

      and negligent infliction of emotional distress. On April 5, 2018, the Appellants

      filed an amended complaint adding Indiana McDonald’s, LLC, Randy Shields,

      and Toucan, Inc. (Toucan), as defendants.


[4]   On April 6, 2018, the Appellants served discovery, including interrogatories and

      requests for production of documents, on all defendants. On May 14, 2018, the

      defendants filed a motion for an extension of time to respond to discovery; the

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2109 | June 19, 2019   Page 2 of 6
      trial court granted the motion and extended the deadline to June 8, 2018. On

      May 24, 2018, the defendants filed a second motion for an extension of time to

      respond to discovery; the trial court granted the motion and extended the

      deadline to July 31, 2018.


[5]   On July 10, 2018, having never provided discovery responses, McDonald’s filed

      a motion for summary judgment. The only evidence designated in support of

      its motion was the complaint and an affidavit from Shields. In the affidavit,

      Shields attested as follows:


          • He is the creator and president of Toucan.
          • Before August 10, 2007, Shields and his wife were parties to a Franchise
            Agreement and Operator’s Lease, pursuant to which they operated the
            McDonald’s restaurant at issue in this case.
          • On August 10, 2007, Shields and his wife assigned the franchise to
            Toucan, which owned and operated the restaurant at the time of
            C.D.Q.’s fall.
          • Toucan owned 100% of the equity interest in the restaurant.
          • McDonald’s was not a party to the franchise agreement and had no role
            in the day-to-day operations of the restaurant.
          • Toucan was generally responsible for ensuring that the barstools and
            chairs in the restaurant were in reasonably safe condition.

      Appellants’ App. Vol. II p. 110-13. McDonald’s did not attach the Franchise

      Agreement or Operator’s Lease to the affidavit, nor has it ever provided those

      documents to the Appellants in response to their discovery requests. Following




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2109 | June 19, 2019   Page 3 of 6
      briefing, the trial court summarily granted summary judgment in favor of

      McDonald’s on August 13, 2018.1 The Appellants now appeal.


                                       Discussion and Decision
[6]   Our standard of review on summary judgment is well settled:


                 The party moving for summary judgment has the burden of
                 making a prima facie showing that there is no genuine issue of
                 material fact and that the moving party is entitled to judgment as
                 a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
                 Once these two requirements are met by the moving party, the
                 burden then shifts to the non-moving party to show the existence
                 of a genuine issue by setting forth specifically designated
                 facts. Id. Any doubt as to any facts or inferences to be drawn
                 therefrom must be resolved in favor of the non-moving
                 party. Id. Summary judgment should be granted only if the
                 evidence sanctioned by Indiana Trial Rule 56(C) shows there is
                 no genuine issue of material fact and that the moving party
                 deserves judgment as a matter of law. Freidline v. Shelby Ins.
                 Co., 774 N.E.2d 37, 39 (Ind. 2002).


      Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).


[7]   The Appellants argue that summary judgment should not have been entered in

      favor of McDonald’s. The basis of the summary judgment motion was,

      essentially, that McDonald’s had no control over the premises where C.D.Q.’s

      accident occurred and, as a result, it had no duty to any of the Appellants.




      1
          The claims against the other defendants are still pending and have been stayed during the appellate process.


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2109 | June 19, 2019                        Page 4 of 6
[8]    At the time McDonald’s moved for summary judgment, it had not yet

       responded to any of the Appellants’ pending discovery requests, despite

       multiple extensions of time granted by the trial court to do so. As a general

       rule, it is improper to grant summary judgment when requests for discovery are

       pending. Smith v. Taulman, 20 N.E.3d 555, 563 (Ind. Ct. App. 2014). But

       when pending discovery is unlikely to develop a genuine issue of material fact,

       summary judgment may be permissible. Id.


[9]    Here, pending discovery would have enabled the Appellants to have a fuller

       understanding of the legal relationship between McDonald’s, Shields, and

       Toucan. That information could, indeed, create a genuine issue of material

       fact. Had McDonald’s included the Franchise Agreement and Operator’s

       Lease with its summary judgment materials, the outcome might be different,

       but as it currently stands, neither the Appellants nor the Court have any way to

       determine whether McDonald’s retains any potential liability under the relevant

       contracts. Shields’s affidavit, in and of itself, is insufficient to answer those

       questions.2


[10]   McDonald’s argues that the Appellants were not sufficiently diligent in

       attempting to procure the discovery. Given that McDonald’s had sought

       multiple extensions of time to respond to discovery and then sprung a summary




       2
         And even if the affidavit amounted to evidence sufficient to shift the burden to the Appellants, they would
       obviously have no way of designating evidence to the contrary because none of the defendants have ever
       responded to their discovery requests. This would be a fundamentally unfair result that we decline to
       countenance.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2109 | June 19, 2019                       Page 5 of 6
       judgment motion on the Appellants before the latest deadline had even passed,

       still having failed to respond, we do not believe McDonald’s has the right to

       argue that the Appellants should have done more. It is not as though the

       Appellants sat on their proverbial hands and passively invited the continued

       stonewalling of McDonald’s to go on, later attempting to take advantage of the

       situation. To the contrary, things moved remarkably quickly in this case.

       McDonald’s filed the summary judgment motion three weeks before the

       extended discovery deadline, and the trial court granted the motion two weeks

       after that same deadline. Under these circumstances, we do not believe the

       Appellants were required to do more to save their claims from summary

       judgment. To hold otherwise would be to sanction the type of “gotcha”

       litigation that this Court so abhors.


[11]   Given the timeline of this case and the lack of evidence on the issue of the

       potential liability of McDonald’s under these circumstances, we find that

       summary judgment should not have been granted in its favor.3


[12]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Najam, J., and Crone, J., concur.




       3
         The Appellants also raise an argument regarding whether there is a conflict of interest related to the
       attorney who represents all the defendants in this case. We decline to reach this issue as it is not relevant to
       the summary judgment motion.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2109 | June 19, 2019                         Page 6 of 6
