 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.



ATTORNEY FOR APPELLANTS:                            ATTORNEY FOR APPELLEES:

MARK A. BATES                                       JOHN R. CRAIG
Schererville, Indiana                               Craig Ward & Maroc, LLC
                                                    Crown Point, Indiana

                                                                                   FILED
                                                                              Aug 15 2012, 9:27 am
                               IN THE
                                                                                      CLERK
                     COURT OF APPEALS OF INDIANA                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




FLOOR MART OF INDIANA, INC.,                        )
ANNESSE M. COVEY, CHERLY C. COVEY,                  )
and WILLIAM COVEY,                                  )
                                                    )
       Appellants-Defendants,                       )
                                                    )
               vs.                                  )      No. 45A03-1111-PL-501
                                                    )
NORMAN FISCHER and JULIE FISCHER,                   )
                                                    )
       Appellees-Plaintiffs.                        )


                          APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Thomas C. Higgins, Judge Pro Tempore
                                   Cause No. 45D11-1002-PL-18



                                         August 15, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       The appellants, Floor Mart of Indiana, Inc. (“Floor Mart”), Annesse M. Covey, Cheryl

C. Covey, and William Covey (collectively “the Defendants”) appeal the summary judgment

order entered in favor of Norman Fischer and Julie Fischer (“the Fischers”) claiming that the

designated materials were insufficient to support the summary judgment.

       We reverse and remand.

                        FACTS AND PROCEDURAL HISTORY

       On May 12, 2006, the Fischers entered into a contract with Floor Mart, which was

owned by Cheryl and William Covey, for the purchase of flooring materials. The total

amount of the materials set forth in the contract was $33,452.92. The Fischers paid the full

amount of the cost of the materials set forth in the contract. Floor Mart failed to deliver or

install the flooring and was administratively dissolved.

       The Fischers filed their complaint for fraud against the Defendants alleging that each

of the Defendants made false statements which the Fischers relied upon to their detriment.

The Fischers moved for summary judgment and designated the affidavit of Norman Fischer,

their purchase agreement with Floor Mart, and “Correspondence from Defendants to

Plaintiffs” in support of their motion. The Defendants did not respond or designate

additional materials.

       Following a hearing, the trial court granted the motion for summary judgment and

found that the Fischers had sustained actual damages of $33,452.00, had established all of the

elements of fraud, and were entitled to judgment for the recovery of their attorney fees in the

amount of $11,606.52 and treble damages for a total damage award in the amount of

$111,962.52. The Defendants now appeal.

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                             DISCUSSION AND DECISION

       Indiana Trial Rule 56 sets forth the summary judgment procedure followed in Indiana.

Paragraph (C) of the rule provides in applicable part:

       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 on which it relies for purposes
       of the motion. A party opposing the motion shall also designate to the court
       each material issue of fact which that party asserts precludes entry of summary
       judgment and the evidence relevant thereto. The judgment sought shall be
       rendered forthwith 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 a
       judgment as a matter of law.

Ind. Trial Rule 56(C). Paragraph (E) sets forth the form for affidavits supporting or

opposing the motion. It provides in applicable part:

       Supporting and opposing affidavits shall be made on personal knowledge,
       shall set forth such facts as would be admissible in evidence, and shall show
       affirmatively that the affiant is competent to testify to the matters stated
       therein. Sworn or certified copies not previously self-authenticated of all
       papers or parts thereof referred to in an affidavit shall be attached thereto or
       served therewith.

T.R. 56(E) (emphasis added.)

       Finally, Trial Rule 11 sets forth the requirements for affidavits. Paragraph (C)

requires that, “Affidavits upon motions for summary judgment under Rule 56 . . . shall be

made upon personal knowledge,” and paragraph (B) states:

       When in connection with any civil or special statutory proceeding it is required
       that any pleading, motion, petition, supporting affidavit, or other document of
       any kind, be verified, or that an oath be taken, it shall be sufficient if the
       subscriber simply affirms the truth of the matter to be verified by an
       affirmation or representation in substantially the following language:

       “I (we) affirm, under the penalties for perjury, that the foregoing
       representation(s) is (are) true.

                                               3
                                                           (Signed) ____________”

       Any person who falsifies an affirmation or representation of fact shall be
       subject to the same penalties as are prescribed by law for the making of a false
       affidavit.

T.R. 11(B).

       The importance of compliance with these rules was set out by this court in Tannehill

ex rel. Podgorski v. Reddy, 633 N.E.2d 318 (Ind. Ct. App. 1994), trans. denied:

       In the determination about whether a genuine issue of material fact is present,
       the trial court faced with a motion for summary judgment is necessarily
       concerned about matters which may serve as evidence, that is, matters which
       may be taken as true if the case goes to trial. See generally, Holloway v.
       Giganti, Inc. 540 N.E.2d 97, 98-99 (Ind. Ct. App. 1989) (for summary
       judgment purposes, documents attached to answers to interrogatories and to
       the respective motions and response, which are not sworn statements, certified
       copies, or verified by affidavit, do not qualify for consideration). Affidavits
       used for summary judgment purposes do not serve merely to invoke judicial
       power and are not merely pledges of good faith but are evidential in nature.
       See, e.g., Lee v. Schroeder, 529 N.E.2d 349, 352 (Ind. Ct. App. 1988), trans.
       denied (a court should disregard any inadmissible information contained in an
       affidavit [used for summary judgment purposes] ); Yang [v. Stafford], 515
       N.E.2d [1157,] 1162 [(Ind. Ct. App. 1987)] (under T.R. 56(E), it is not
       necessary that the facts presented by affidavit be sufficient to support a verdict;
       rather, they need only be admissible as evidence). Therefore, the affidavits
       used in conjunction with summary judgment determinations should be subject
       to the penalties for perjury.

Id. at 321.

       Here, the affidavit of Norman Fischer that was designated in support of the motion for

summary judgment fails to conform to the above rules in two vital ways. First, the affidavit

was not made on personal knowledge. Rather, it states facts “to the best of Plaintiffs [sic]

knowledge and belief” and that such facts “are true and accurate to the best of my knowledge

and belief.” Appellants’ App. at 43-44. Second, it was not made under the penalties of


                                               4
perjury. Id. In Jones v. State, 517 N.E.2d 405, 406-07 (Ind. 1988), our Supreme Court held

that an affidavit in which affiant simply stated: “I hereby affirm that the above is true and

correct, all to my own information, knowledge and personal belief” did not comply with Rule

11 because it contained no statement that the affirmation was made under penalties of

perjury. See also Hendricks v. State, 426 N.E.2d 367, 369 (Ind. 1981).

       The trial court erred in considering the affidavit in support of the Fischers’ motion for

summary judgment because it was not made upon personal knowledge or under the penalties

of perjury. In the absence of the affidavit, the materials designated by the Fischers in support

of their motion were insufficient to demonstrate the absence of material facts regarding

elements of the fraud claim, including the falsity of the alleged false statements, the

materiality of such statements, and the Defendants’ intent to deceive. As a result, the trial

court erred in granting the motion for summary judgment. We reverse its judgment and

remand for further proceedings.

       Reversed and remanded.

NAJAM, J., and MAY, J., concur.




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