                                                                                 FILED
                                                                             Apr 23 2020, 9:04 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEES
MacArthur Drake                                             Rinzer Williams, III
Gary, Indiana                                               Gary, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

The 487 Broadway Company,                                   April 23, 2020
LLC,                                                        Court of Appeals Case No.
Appellant-Plaintiff,                                        19A-PL-1499
                                                            Appeal from the Lake Superior
        v.                                                  Court
                                                            The Honorable Thomas W.
Kimberly K. Robinson,                                       Webber, Judge Pro Tempore
Individually and in her Official                            Trial Court Cause No.
Capacity as Calumet Township                                45D04-1812-PL-565
Trustee, and Carol Ann Seaton,
Individually and in her Official
Capacity as an Employee of the
Township Trustee as Township
Annex Building Manager,
Calumet Township of Lake
County, and the Calumet
Township Board, including its
Members, in the Official
Capacities, all Jointly and
Severally,
Appellees-Defendants.




Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020                                   Page 1 of 14
      Najam, Judge.


                                         Statement of the Case
[1]   The 487 Broadway Company, LLC (“487 Broadway”) appeals the trial court’s

      grant of summary judgment in favor of Kimberly K. Robinson, Carol Ann

      Seaton, Calumet Township of Lake County, and the Calumet Township Board

      (collectively, “the Township”) on 487 Broadway’s complaint, which alleged

      negligence and breach of contract. 487 Broadway raises one dispositive issue

      for our review, namely, whether the trial court erred when it entered summary

      judgment in favor of the Township.


[2]   We reverse and remand with instructions.


                                   Facts and Procedural History
[3]   In 2016, the Township sought a purchaser for a building it owned. The

      Township issued a notice in which it invited interested parties to submit bids for

      the property, which the Township was selling “as is.” Appellant’s App. Vol. II

      at 99 (emphasis removed). 487 Broadway successfully bid on the property and

      agreed to pay $72,100. 487 Broadway then paid the purchase price in full, and

      the parties scheduled a closing date for January 4, 2017.


[4]   After 487 Broadway had paid for the property but prior to the closing date, the

      Township removed lighted signs that had been affixed to the exterior of the

      building. The Township also removed pictures and artifacts that had been

      secured to interior walls. 487 Broadway complained to the Township about


      Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020      Page 2 of 14
      those changes in the condition of the property. The Township denied any

      wrongdoing, and the parties proceeded to close as scheduled.


[5]   On December 10, 2018, 487 Broadway filed a complaint in the trial court in

      which it alleged that the Township had “caused property damage” to the

      exterior of the building by “tearing . . . down and remov[ing] large, electrically

      lighted signs,” which caused the building “to look blighted, vandalized, and

      vacated” and interfered with 487 Broadway’s ability to “immediately rent or

      attract renters” to the building. Id. at 37. 487 Broadway further alleged that the

      Township had removed “historical pictures and artifacts” that were “affixed to

      the inside walls of the Building,” which pictures and artifacts 487 Broadway

      asserted were fixtures that were part of the building it had purchased. Id. Based

      on that conduct, 487 Broadway asserted that the Township was negligent and

      that the Township had breached the terms of the contract.


[6]   On February 14, 2019, the Township filed a motion to dismiss 487 Broadway’s

      complaint pursuant to Indiana Trial Rule 12(B)(6) and a corresponding

      memorandum in support of that motion. As to 487 Broadway’s negligence

      claim, the Township asserted that, since 487 Broadway had closed on the

      property knowing the current condition of the signs, “it accepted the property in

      its present condition and waived any issues it may have had” concerning the

      signs. Id. at 47. The Township also asserted that it had removed only the

      inserts from the signs and that its act of removing the inserts did not cause any

      damage. The Township further alleged that it had not been negligent when it

      removed the pictures and artifacts from inside the building because those items

      Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020        Page 3 of 14
      were the personal property of the Township and, as such, it did not owe a duty

      to 487 Broadway to refrain from removing those items. And based on its

      assertions that it did not cause any damage when it removed the inserts from

      the signs and that the items from the interior of the building were personal

      property and not fixtures, the Township also asserted that it did not breach the

      contract. In support of its motion to dismiss, the Township submitted several

      exhibits, which included receipts for 487 Broadway’s payment of the purchase

      price, the warranty deed that conveyed the real estate to 487 Broadway, the

      settlement statement, and the sales disclosure form.


[7]   Thereafter, on March 22, the trial court issued an order in which it informed the

      parties that it would consider the Township’s motion to dismiss as a motion for

      summary judgment, and the court gave 487 Broadway twenty days to file a

      reply. Twenty-one days later, on April 12, 487 Broadway filed a motion to stay

      the trial court’s treatment of the Township’s motion to dismiss as a motion for

      summary judgment pending discovery. In that motion, 487 Broadway asserted

      that it needed additional time in order to conduct discovery so that it could

      present facts in opposition to the Township’s motion. 487 Broadway also

      asserted that the Township’s motion “contains no designation of undisputed

      facts[.]” Id. at 68. The trial court found that nothing in 487 Broadway’s

      “response” refuted the facts set out in the Township’s motion and

      corresponding memorandum of law. Id. at 13. Accordingly, on April 16, the

      court granted the Township’s motion for summary judgment without a hearing.




      Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020       Page 4 of 14
[8]   487 Broadway then filed a motion to correct error in which it asserted that the

      trial court had erred when it granted summary judgment in favor of the

      Township. In that motion, 487 Broadway alleged in part that the court had

      erred when it gave 487 Broadway only twenty days to respond to the

      Township’s motion for summary judgment even though Trial Rule 56(C) and

      the Lake County Local Rules provide that a non-movant for summary

      judgment shall have thirty days to respond. 487 Broadway also maintained that

      the historical artifacts and pictures were fixtures, not personal property, and,

      thus, that the Township had no right to remove them. And 487 Broadway

      asserted that the Township had caused damage to the building when it “ripped”

      the exterior sign from the wall. Id. at 82. In support of its motion to correct

      error, 487 Broadway included the affidavit of Janice Carman, a managing

      partner of 487 Broadway, in which Carman stated that the pictures and artifacts

      had been “affixed and permanently attached” to the interior walls. Id. at 84.


[9]   The trial court held a hearing on 487 Broadway’s motion to correct error.

      Following that hearing, the trial court issued findings and conclusions in which

      it denied 487 Broadway’s motion. 487 Broadway then filed a motion to

      reconsider and to vacate the order denying the motion to correct error. In

      support of that motion, 487 Broadway included the affidavit of James Dungy,

      the former contractor who had installed the pictures and artifacts in the

      building. In his affidavit, Dungy stated that, when he affixed the items to the

      walls of the building, he “intended that the pictures and artifacts not be

      removed from where [he] attached them and that they remain as part of the


      Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020           Page 5 of 14
       Building itself.” Id. at 121. The trial court found that Dungy’s affidavit “does

       not provide a sufficient basis for the Court to reconsider” its prior orders and

       denied 487 Broadway’s motion to reconsider. Id. at 34. This appeal ensued. 1


                                         Discussion and Decision
[10]   487 Broadway appeals the trial court’s denial of its motion to correct error. As

       this Court has previously explained:


                We review the grant or denial of a Trial Rule 59 motion to
                correct error under an abuse of discretion standard. On appeal,
                we will not find an abuse of discretion unless the trial court’s
                decision is clearly against the logic and effect of the facts and
                circumstances before it or is contrary to law.


       Spaulding v. Cook, 89 N.E.3d 413, 420 (Ind. Ct. App. 2017) (internal citations

       omitted).


[11]   Further, upon reviewing a motion to correct error, this Court also considers the

       standard of review for the underlying ruling. Luxury Townhomes, LLC v.

       McKinley Properties, Inc., 992 N.E.2d 810, 815 (Ind. Ct. App. 2013). Our

       standard of review for summary judgment appeals is well settled. The Indiana

       Supreme Court has explained that


                [w]e review summary judgment de novo, applying the same
                standard as the trial court: “Drawing all reasonable inferences in




       1
         487 Broadway timely filed its notice of appeal within thirty days after the court denied its motion to correct
       error.

       Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020                                 Page 6 of 14
               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).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some

       alterations original to Hughley).


[12]   On appeal, 487 Broadway asserts that the trial court erred when it granted

       summary judgment in favor of the Township because the trial court gave 487

       Broadway only twenty days to respond to the Township’s motion for summary

       judgment and because the Township did not designate any admissible evidence

       in support of its motion. We address each argument in turn.


       Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020         Page 7 of 14
                         Time to Respond to Motion for Summary Judgment

[13]   487 Broadway asserts that the trial court erred when it entered summary

       judgment in favor of the Township because the court gave 487 Broadway only

       twenty days rather than thirty days to respond to the Township’s motion. And

       487 Broadway asserts that that irregularity prevented 487 Broadway from

       “having its day in court.” Appellant’s Br. at 15. In other words, 487 Broadway

       maintains that the court improperly limited its time to respond and designate

       evidence in opposition to the Township’s motion for summary judgment. We

       must agree.


[14]   Here, the Township filed a motion to dismiss pursuant to Trial Rule 12(B)(6).

       In support of that motion, the Township submitted several exhibits, which the

       trial court did not exclude. Rather, the court explicitly relied on those exhibits

       when it considered the Township’s motion. Accordingly, the court properly

       treated the Township’s motion to dismiss as a motion for summary judgment.

       See Ind. Trial Rule 12(B). At that point, the trial court was required to dispose

       of the motion as provided in Trial Rule 56. See id.


[15]   Under Rule 56(C), “[a]n adverse party shall have thirty (30) days after service of

       the motion to serve a response and any opposing affidavits.” (Emphasis

       added.) Our Supreme Court has made clear that the Indiana Trial Rules

       impose a bright-line rule in summary judgment proceedings. See State ex rel. Hill

       v. Jones-Elliott, __N.E.3d__, No. 19A-PL-588, 2020 WL 762535, at *1 (Ind. Ct.

       App. Feb. 17, 2020) (quoting Mitchell v. 10th and The Bypass, LLC, 3 N.E.3d 967,

       973 (Ind. 2014)), not yet certified. But the trial court did not give 487 Broadway
       Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020        Page 8 of 14
       thirty days to respond. Rather, in its March 22, 2019, order notifying the

       parties that it would treat the motion to dismiss as a motion for summary

       judgment, the court allowed 487 Broadway only twenty days to file its response

       and any supporting evidence. Under Rule 56(C), the trial court did not have

       the authority to shorten 487 Broadway’s response time to less than thirty days. 2


[16]   In addition, the trial court ruled on the Township’s motion for summary

       judgment on April 16, only twenty-five days after the court had issued its order

       that the Township’s motion to dismiss would be considered a motion for

       summary judgment. In other words, not only did the trial court shorten 487

       Broadway’s response time to less than thirty days, it also ruled on the

       Township’s motion before the thirty-day response period to which 487

       Broadway was entitled had expired.


[17]   On April 12, 487 Broadway filed a motion to stay the court’s treatment of the

       motion to dismiss as one for summary judgment, stating that the Township’s

       motion to dismiss was “substantively and procedurally deficient” and “devoid

       of grounds” for either a 12(B)(6) dismissal or a summary judgment. Appellant’s

       App. Vol. II at 67. In its motion, 487 Broadway requested additional time to

       conduct discovery. Specifically, 487 Broadway stated that it was unable to

       present “facts essential to justify its opposition” to the Township’s motion to




       2
         Indiana Trial Rule 56(I) provides that a court may alter any time limit set forth in Rule 56, but the court
       may only do so upon motion made within the applicable time limit. Here, there was no motion made to
       shorten the time limit.

       Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020                                  Page 9 of 14
       dismiss without being granted additional time. Appellant’s App. Vol. II at 67-

       68. On its face, 487 Broadway’s motion was a Trial Rule 56(I) motion for

       additional time to respond, which 487 Broadway made within the applicable

       thirty-day time limit.


[18]   While the purpose of summary judgment is to quickly resolve disputes in which

       there are no genuine issues of material fact, Ka v. City of Indianapolis, 954

       N.E.2d 974, 976-77 (Ind. Ct. App. 2011), this Court has previously stated that it

       “‘is generally improper to grant summary judgment when requests for discovery

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

       (quoting Mut. Sec. Life Ins. Co. v. Fidelity & Deposit Co, 659 N.E.2d 1096, 1103

       (Ind. Ct. App. 1995)) (emphasis removed). Here, the court misconstrued 487

       Broadway’s motion to stay and for additional time as a Trial Rule 56(C)

       “response” by a non-movant and did not rule on the motion. Appellant’s App.

       Vol. II at 13. Instead, the court entered summary judgment in favor of the

       Township four days after 487 Broadway had filed its motion to stay and for

       additional time.


[19]   Because the court allowed 487 Broadway only twenty days to respond and

       because the court did not rule on 487 Broadway’s motion to stay and for

       additional time, the trial court erred when it entered summary judgment for the

       Township without having allowed 487 Broadway thirty days to respond as

       provided in Trial Rule 56(C) and without having ruled on its request for

       additional time to conduct discovery.



       Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020        Page 10 of 14
                        Exhibits in Support of Motion for Summary Judgment

[20]   Since it may be an issue on remand, we next address 487 Broadway’s assertion

       that the court erred when it entered summary judgment in favor of the

       Township because the Township’s motion for summary judgment “did not

       meet the Rule 56(C) requirements.” Appellant’s App. Vol. II at 78.

       Specifically, 487 Broadway asserts that the Township did not designate any

       “affidavits or other designated documents which would be admissible under the

       Indiana Rules of Evidence” to “establish that there is no genuine issue of

       material fact and that judgment is proper for [the Township] as a matter of

       law[.]” Appellant’s Br. at 13.


[21]   Indiana Trial Rule 56 permits parties to submit affidavits and evidence in

       support of their motions for summary judgment. That rule states:


               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.


       Ind. Trial Rule 56(E). “Thus, in ruling on a motion for summary judgment, the

       trial court will consider only properly designated evidence which would be

       admissible at trial.” Zelman v. Capital One Bank (USA) N.A., 133 N.E.3d 244,

       248 (Ind. Ct. App. 2019). “Unsworn statements and unverified exhibits do not

       qualify as proper Rule 56 evidence.” Seth v. Midland Funding, LLC, 997 N.E.2d


       Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020            Page 11 of 14
       1139, 1141 (Ind. Ct. App. 2013). Further, neither arguments of counsel nor

       allegations in memoranda qualify as evidentiary material for purposes of a

       motion for summary judgment. McCullough v. CitiMortgage, Inc., 70 N.E.3d 820,

       825 (Ind. 2017).


[22]   On appeal, 487 Broadway maintains that the only evidence the Township

       designated consisted of several exhibits, all of which were unverified. And 487

       Broadway contends that, because the Township did not designate any verified

       exhibits in support of its motion, the Township did not meet its burden as

       summary judgment movant to show the absence of any genuine issue of

       material fact. We must agree with 487 Broadway.


[23]   In support of its motion for summary judgment, the Township designated as

       evidence the following: copies of checks and receipts showing that 487

       Broadway had paid for the building, a copy of the warranty deed showing 487

       Broadway as the new owner of the building, a copy of the closing settlement

       statement, and a copy of the sales disclosure form. However, none of those

       exhibits were admissible. Indeed, the Township did not include any affidavit

       by a person qualified to authenticate the exhibits. Nor were any of those

       documents self-authenticating. See Ind. Evidence Rule 902. Accordingly, the

       exhibits were not proper Rule 56 evidence, and the court erred when it

       considered them. See Seth, 997 N.E.2d at 1143.


[24]   As the Township did not designate any admissible evidence, we hold that it has

       failed as a matter of law to make a prima facie case that it was entitled to


       Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020        Page 12 of 14
       summary judgment on 487 Broadway’s complaint. And, because the Township

       did not meet its burden as summary judgment movant to demonstrate the

       absence of any genuine issue of material fact, the burden never shifted to 487

       Broadway to show the existence of genuine issues of material fact precluding

       summary judgment. We therefore hold, again, the trial court erred when it

       entered summary judgment in favor of the Township.


                                                     Conclusion

[25]   In sum, the trial court misapplied the law when it gave 487 Broadway only

       twenty days to respond to the Township’s motion for summary judgment, when

       it mischaracterized 487 Broadway’s motion to stay pending discovery as a Trial

       Rule 56(C) “response,” and when it did not rule on 487 Broadway’s motion to

       stay and for additional time to conduct discovery. Further, the Township did

       not designate any evidence in support of its motion for summary judgment that

       would be admissible at trial. Accordingly, we hold that the trial court erred

       when it entered summary judgment in favor of the Township and that the court

       abused its discretion when it denied 487 Broadway’s motion to correct error.

       We therefore reverse the entry of summary judgment, and we remand this case

       to the trial court with instructions for the court to vacate all orders subsequent

       and relevant to the Township’s motion to dismiss. Should the Township

       submit a motion for summary judgment that complies with Trial Rule 56(C),

       including the proper designation of evidence and undisputed material facts, we

       further instruct the court to allow 487 Broadway, as the nonmovant, a full thirty

       days to respond.

       Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020        Page 13 of 14
[26]   Reversed and remanded for further proceedings. 3


       Riley, J., and Brown, J., concur.




       3
          487 Broadway also asks us to direct the trial court to enter partial summary judgment in its favor on the
       issue of whether the exterior signs and interior photographs and artifacts are fixtures. However, we decline to
       address this issue in that 487 Broadway did not file a motion for summary judgment in the trial court. If 487
       Broadway believes that it is entitled to partial summary judgment, it may file a motion with the trial court, at
       which point the Township will have a chance to respond as it deems appropriate.

       Court of Appeals of Indiana | Opinion 19A-PL-1499 | April 23, 2020                                Page 14 of 14
