FOR PUBLICATION



ATTORNEYS FOR APPELLANT:                     ATTORNEYS FOR APPELLEES:

J. KEVIN KING                                MARC T. QUIGLEY
PETER CAMPBELL KING                          LIBBY Y. GOODKNIGHT
Cline King & King, P.C.                      CATHERINE E. SABATINE
Columbus, Indiana                            Krieg DeVault, LLP
                                             Indianapolis, Indiana


                                                                   May 22 2013, 9:20 am
                            IN THE
                  COURT OF APPEALS OF INDIANA

LYDIA LANNI,                                 )
                                             )
     Appellant-Plaintiff,                    )
                                             )
            vs.                              )     No. 49A05-1208-CT-392
                                             )
NATIONAL COLLEGIATE ATHLETIC                 )
ASSOCIATION, et al.,                         )
                                             )
     Appellees-Defendants.                   )


                  APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Michael D. Keele, Judge
                          Cause No. 49D07-1202-CT-5179


                                    May 22, 2013

                             OPINION - FOR PUBLICATION

RILEY, Judge
                                 STATEMENT OF THE CASE

       Appellant-Plaintiff, Lydia Lanni (Lanni), appeals the trial court’s grant of

Appellees-Respondents’, the National Collegiate Athletic Association, et al.1 (NCAA),

combined alternative Motion to Dismiss Lanni’s Complaint and/or Motion for Summary

Judgment.

       We reverse in part, affirm in part, and remand for further proceedings.2

                                              ISSUES

       Lanni raises three issues on appeal, which we consolidate and restate as the

following two issues:

    (1) Whether the trial court erred when it converted the NCAA’s combined alternative

       Motion to Dismiss Lanni’s Complaint and/or Motion for Summary Judgment into

       a motion for summary judgment; and

    (2) Whether the trial court abused its discretion by denying Lanni’s motion to strike

       an affidavit designated by the NCAA.

                           FACTS AND PROCEDURAL HISTORY

       This cause comes before us as a result of a civil tort action filed by Lanni against

the NCAA, the University of Notre Dame Du Lac (Notre Dame), and the United States

Fencing Association (USFA). Lanni, a spectator, was struck in the left eye by a fencing

sabre causing a severe injury while at an allegedly NCAA sanctioned fencing match at
1
  This appeal strictly concerns a procedural question instigated by the NCAA. The other parties in this
case, the University of Notre Dame Du Lac and the United States Fencing Association, Inc., are not part
of this appeal.
2
  We held oral argument in this cause on May 1, 2013 at the Indiana Court of Appeals Courtroom in
Indianapolis, Indiana. We thank counsel for their eloquent advocacy.


                                                  2
Notre Dame. On February 8, 2012, Lanni filed her Complaint, alleging that the NCAA

was negligent by (1) failing to undertake a hazard and risk analysis prior to commencing

the fencing match, (2) failing to select and/or supervise qualified officials, and (3) failing

to supervise the competition to insure hazards and risks were consistently monitored to

prevent injuries.

       On April 3, 2012, after requesting two extensions of time to file a responsive

pleading, the NCAA filed its Motion to Dismiss Lanni’s Complaint and/or Motion for

Summary Judgment (the Motion).              In its Motion, the NCAA asserted that Lanni’s

Complaint should be dismissed pursuant to Indiana Trial Rule 12(B)(6) and

“additionally,” it was entitled to summary judgment as a matter of law pursuant to

Indiana Trial Rule 56 because the undisputed evidence established that the NCAA was

not negligent or at fault for Lanni’s injuries. (Appellant’s App. p. 18). Attached to the

Motion was the NCAA’s brief in support and the affidavit of Kelly Whitaker Shaul

(Shaul), the NCAA’s Fencing Championships Manager.

       On April 20, 2012, Lanni filed a motion for stay of briefing with respect to

NCAA’s Motion, requesting, in pertinent part:

       4. As litigation has just commenced, discovery is in the early stages.
       [Lanni] is in the process of drafting and issuing discovery to all Defendants,
       which is expected to be sent out within the month.
       5. Until the appointment of a new judge, [Lanni’s] response to [NCAA’s]
       [M]otion should be stayed.3
       6. Technically, [NCAA] has requested two forms of relief. A motion
       pursuant to [T.R. 12(B)(6)] and a motion pursuant to [T.R. 56(C)]. [Lanni]
       will file the appropriate responses separately to the two motions, as

3
  On April 11, 2012, Lanni had filed two separate motions pursuant to Ind. T.R. 79(C)(3) and pursuant to
T.R. 76(B) - (C) requesting the recusal of the trial judge.


                                                   3
      procedurally, the two motions have different standards for analysis.
      [Lanni] does not concede the Affidavit filed by [NCAA] should be allowed
      relative to the [T.R. 12(B)(6)] motion.
      7. Alternatively, it is premature to file a summary judgment given the fact
      the discovery regarding factual matters relative to [Lanni’s] Complaint will
      be issued. “Moreover, we have frequently emphasized the critical
      importance of discovery in the summary judgment context . . . As we have
      stressed, however, summary judgment should not be granted while the
      party opposing judgment timely seeks discovery of potentially favorable
      information.” Schering Corp. v. Homes Ins. Co., 712 F.2d 4, 10 (2nd Cir.
      1983).

(Appellant’s App. p. 37). On April 24, 2012, the trial court granted Lanni’s request for a

change of judge and on May 23, 2012, the appointment of a special judge was entered.

On May 4, the NCAA opposed Lanni’s request to stay the briefing schedule and on May

29, 2012, after the special judge was appointed, the trial court issued its order denying

Lanni’s motion for stay and set the NCAA’s Motion for a hearing on July 9, 2012. On

May 31, 2012, Lanni served the NCAA with her first set of interrogatories.

      On June 13, 2012, Lanni filed a motion for extension of time to respond to the

NCAA’s Motion, asserting that discovery is still on-going “regarding factual matters

relative to [Lanni’s] Complaint.” (Appellant’s App. p. 56). Two days later, on June 15,

2012, the NCAA filed its motion to stay discovery pending the trial court’s ruling on its

motion for summary judgment, as well as a brief in opposition to Lanni’s motion for

extension of time and in support of its own motion to stay discovery. On July 2, 2012,

Lanni filed a response to NCAA’s opposition to extend time and to NCAA’s motion to

stay discovery, as well as a separate motion to strike Shaul’s affidavit. Also, that same

day, the NCAA filed a motion for enlargement of time to respond to Lanni’s discovery




                                            4
request pending a ruling on the NCAA’s motion to stay discovery, which was granted by

the trial court.

       On July 5, 2012, the trial court entered an order granting NCAA’s motion to stay

discovery pending a ruling on its motion for summary judgment; yet, the trial court struck

the following language from the NCAA’s proposed order: “[Lanni] is prohibited from

filing any response or submitting any evidence in response to the [m]otion for [s]ummary

[j]udgment.” (Appellant’s App. p. 136). At the same time, the trial court denied Lanni’s

motion for extension of time to respond to the NCAA’s Motion. On July 6, 2012, the

NCAA responded to Lanni’s motion to strike Shaul’s affidavit.

       On July 9, 2012, prior to the trial court’s hearing on the NCAA’s Motion, Lanni

filed her designation of materials. At the hearing, Lanni objected to the trial court’s

conversion of NCAA’s Motion to a motion for summary judgment because she had not

received any notice that the trial court would treat the combined Motion as a summary

judgment motion and because of her lack of opportunity to conduct discovery. Later that

same day, the trial court issued an Order granting NCAA’s Motion, entering summary

judgment in favor of NCAA, as well as an Order denying Lanni’s motion to strike

Shaul’s affidavit.

       Lanni now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

                                   I. NCAA’s Motion

       Lanni’s main argument focuses on the trial court’s treatment of the NCAA’s

Motion which combined a motion based on T.R. 12(B)(6) with a motion based on T.R.


                                            5
56. Specifically, she claims that pursuant to the language of T.R. 12(B)(6), the trial court

was required to notify4 her prior to considering the NCAA’s Motion as a motion for

summary judgment and the trial court was mandated to award her a reasonable time to

conduct discovery.

       Indiana Trial Rule 12(B)(6) (emphasis added) provides, in pertinent part, that:

       (6) Failure to state a claim upon which relief can be granted, which shall
       include failure to name the real party in interest under Rule 17;

       ***

       If, on a motion, asserting the defense number (6), to dismiss for failure of
       the pleading to state a claim upon which relief can be granted, matters
       outside the pleading are presented to and not excluded by the court, the
       motion shall be treated as one for summary judgment and disposed of as
       provided in Rule 56. In such case, all parties shall be given reasonable
       opportunity to present all material made pertinent to such a motion by Rule
       56.

       We have previously analyzed the interplay between a T.R. 12(B)(6) motion and a

T.R. 56 motion in Azhar v. Town of Fishers, 744 N.E.2d 947, 949 (Ind. Ct. App. 2001).

In Azhar, this court was asked to evaluate whether the trial court caused prejudice to

Azhar when it converted the Town’s motion to dismiss into a motion for summary

judgment without specific prior notice to Azhar. Azhar contended that she was surprised

by the trial court’s action and that the surprise resulted in a lack of reasonable opportunity

to put forth evidence to show the existence of genuine issues of material fact. Id. at 950.

Upon review, we stated:



4
  However, during oral argument, Lanni’s counsel asserted to be no longer concerned about the “notice
requirement.”


                                                 6
      Ind. Trial Rule 12(B) provides that a motion to dismiss for failure to state a
      claim shall be treated as a motion for summary judgment when “matters
      outside the pleading are presented to and not excluded by the trial court.”
      Where a trial court treats a motion to dismiss as one for summary judgment,
      the court must grant the parties a reasonable opportunity to present T.R. 56
      materials. See T.R. 12(B); Biberstine v. New York Blower Co., 625 N.E.2d
      1308, 1313 (Ind. Ct. App. 1993), trans. dismissed. The trial court’s failure
      to give explicit notice of its intended conversion of a motion to dismiss to
      one for summary judgment is reversible error only if a reasonable
      opportunity to respond is not afforded a party and the party is thereby
      prejudiced. Ayres v. Indiana Heights Volunteer Fire Department, 493
      N.E.2d 1229, 1233 (Ind. 1986).

      Our review of the relevant cases discloses at least [three] considerations
      pertinent to a determination of whether a trial court’s failure to give express
      notice deprives the nonmovant of a reasonable opportunity to respond with
      T.R. 56 materials. First, we consider whether the movant’s reliance on
      evidence outside the pleadings should have been so readily apparent that
      there is no question that the conversion is mandated by T.R. 12(B). See
      Duran v. Komyatte, 490 N.E.2d 388, 391 (Ind. Ct. App. 1986), trans.
      denied (noting that the operation of T.R. 12(B) is “well known” and a
      “clear mandate” of which counsel should be cognizant). Second, we
      consider whether there was ample time after the filing of the motion for the
      nonmovant to move to exclude the evidence relied upon by the movant in
      support of its motion or to submit T.R. 56 materials in response thereto.
      See Biberstine, 625 N.E.2d at 1314. Third, we consider whether the
      nonmovant presented “substantiated argument” setting forth how she
      “would have submitted specific controverted material factual issues to the
      trial court if [she] had been given the opportunity.” Ayres, 493 N.E.2d at
      1233 (citing Macklin v. Butler, 553 F.2d 525, 528 (7th Cir. 1977)).

Id. at 950-51 (Emphasis added, internal footnote omitted). Although not explicitly stated,

Lanni’s argument mainly focuses on the second element of the Azhar test: she claims

that she was never allowed the opportunity to conduct any discovery. In Azhar, we

referenced the approximate three month time period between the filing of the motion to

dismiss and the hearing as “ample” time to allow Azhar to (1) move to exclude the

evidence relied on by the Town; (2) file a motion for additional time to conduct discovery



                                            7
to ascertain the evidence in opposition to the motion; and/or (3) submit materials in

opposition thereto. Id.

       We reached a different result in two older cases where trial courts considered

matters outside the pleadings and converted the T.R. 12(B)(6) motions into motions for

summary judgment without holding hearings or giving the parties notice that they were

doing so. In both instances, this was held to be reversible error because the trial court did

not allow the opposing parties a reasonable opportunity to present all material made

pertinent to such a motion by T.R. 56.

       Specifically, in Carrell v. Ellingwood, 423 N.E.2d 630, 632 (Ind. Ct. App. 1981),

trans. denied, Ellingwood filed a motion to dismiss Carrell’s complaint to contest a will.

Carrell filed objections to the motion, accompanied by an affidavit. Id. That same day,

the trial court, without notice, hearing, or any other proceeding, granted Ellingwood’s

motion. Id. Carrell appealed, asserting that the trial court erred in not scheduling a

hearing on Ellingwood’s motion and not treating the motion as one for summary

judgment. Id. at 633. On appeal, the Carrell court, after finding that the trial court had

properly converted the motion to dismiss into a motion for summary judgment,

nevertheless concluded that “in such circumstances, [the trial court is required] to grant

the parties a reasonable opportunity to present all material made pertinent to a T.R. 56

motion.” Id. at 634. Holding that no reasonable time to present additional materials had

been granted to the parties, we reversed the trial court’s summary judgment. Id.

       Likewise, in Foster v. Littell, 293 N.E.2d 790, 791 (Ind. Ct. App. 1973), Littell

filed a motion to dismiss based on T.R. 12(B)(6). Foster filed an opposition, together


                                             8
with an affidavit. Id. At the hearing on the motion to dismiss, Foster’s counsel requested

to be informed whether or not the motion would be treated as a motion for summary

judgment. Id. That request was made so that there would be ample time, if needed, to

prepare materials in accordance with the summary judgment standards. Id. Foster,

however, was never informed that the motion to dismiss had become one for summary

judgment until later when he learned by surprise that a judgment had been entered against

him. Id. at 791. Foster appealed. We concluded that:

       [i]nasmuch as [Foster] had filed an affidavit and [Littell] had filed a
       memorandum with his motion and the affidavit and memorandum are part
       of the record in the cause before the trial judge ruled on the respective
       motions and were not excluded by the record of the trial court, it is our
       opinion that the affidavit being matter outside the pleadings, falls with the
       guidelines of [T.R.] 12(B)(6), and ultimately came under [T.R.] 56. The
       court should have given reasonable opportunity to both parties to present all
       material made pertinent to such a motion by [T.R.] 56.

Id. at 792 (internal citations omitted).

       Here, the evidence reflects that the NCAA’s Motion, together with Shaul’s

affidavit, was filed on April 3, 2012.      Because evidence outside the pleading was

presented and not excluded by the trial court, we find that the trial court’s treatment of

the NCAA’s Motion as a motion for summary judgment was proper. However, due to

this conversion from a T.R. 12(B)(6) motion to a T.R. 56 motion, the trial court was

required to give “all parties reasonable opportunity” to present all pertinent material. See

also Ayres, 493 N.E.2d at 1233 (the trial court’s failure to give explicit notice of its

intended conversion is reversible error only if a reasonable opportunity to respond is not

afforded to a party and a party is thereby prejudiced).



                                             9
        Eighteen days after the NCAA’s Motion, on April 20, 2012, Lanni filed a motion

for stay of briefing schedule, asserting that discovery was still in the early stages and that

discovery to all parties would be sent out within the month. Additionally, Lanni objected

to the inclusion of Shaul’s affidavit in NCAA’s Motion and the NCAA’s early request for

summary judgment. The NCAA opposed Lanni’s motion for stay and, on May 29, 2012,

the trial court denied Lanni’s motion to stay the briefing. Two days later, on May 31,

2012, Lanni served the NCAA with her first set of interrogatories.

        On June 13, 2012, Lanni filed a motion for extension of time to respond to

NCAA’s Motion. Two days later, the NCAA moved to stay discovery pending the trial

court’s ruling on its Motion, to which Lanni objected. On July 5, 2012, the trial court

granted the NCAA’s motion to stay discovery, and on July 9, 2012, the trial court

conducted its hearing on the Motion.

        Although Lanni self-characterizes her initial motion as a motion for stay of

briefing, a review of the reasons set forth in Lanni’s April 20, 2012 motion establishes

that it is more properly treated as a motion for alteration of time, pursuant to T.R. 56(I).5

Having filed her motion well within the thirty-day response time to a motion for

summary judgment, Lanni clearly objected to the premature nature of the NCAA’s

Motion, informing the trial court that litigation has just begun and discovery is being

drafted. We are mindful that at the time the NCAA filed its Motion, litigation was barely

two months old and the NCAA had yet to file a responsive pleading to Lanni’s


5
  Indiana Trial Rule 56(I) provides that “For cause found, the [c]ourt may alter any time limit set forth in
this rule upon motion made within the applicable time limit.”


                                                    10
Complaint. As such, Lanni had just cause to request an alteration of the regular time

limits for briefing and designating materials to respond to a motion for summary

judgment as Lanni was not yet apprised of NCAA’s expected defense and had yet to

conduct any discovery. Moreover, in its rush to judgment, the NCAA then picked up its

speed by not only objecting to all motions Lanni filed but also by successfully staying all

discovery requests.

       Disputing the existence of any “cause” for Lanni’s motion for alteration of time,

the NCAA argues that Lanni’s discovery requests did not bear “on issues material to the

[M]otion.” (Appellee’s Br. p. 14). “As a general proposition, it is improper for a court to

grant summary judgment while reasonable discovery requests that bear on issues material

to the motion are still pending.” Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 698

(Ind. 2000). In this light, the NCAA argues that Lanni’s discovery requests “are nothing

more than generic form requests” without focusing on the main issue raised in NCAA’s

Motion, i.e., that the NCAA had no involvement in the Notre Dame fencing match.

(Appellee’s Br. p. 15). However, the NCAA’s self-serving interpretation of what issues

are “material” to the cause should not be prevailing; rather, the reasonableness of the

request should be the initial predominant factor where discovery is in its early stages.

Here, the NCAA’s motions, granted by the trial court, effectively prevented Lanni from

conducting any discovery, let alone any reasonable discovery.

       Based on the circumstances before us, it is clear that the trial court abused its

discretion when it denied Lanni’s April 20, 2012 motion for alteration of time. By its

denial, the trial court effectively deprived Lanni of a reasonable opportunity to present


                                            11
any material made pertinent to a T.R. 56 motion. See Carrell v. Ellingwood, 423 N.E. at

634. By its subsequent grant of the NCAA’s motion to stay discovery, the trial court

further negated any opportunity to present relevant materials in opposition to the motion

for summary judgment. Therefore, because the trial court did not follow the directives

for converting a T.R 12(B)(6) motion to a T.R. 56 motion, we reverse the trial court’s

summary judgment in favor of the NCAA.

                                    II. Shaul’s Affidavit

       Lastly, Lanni contends that the trial court abused its discretion when it refused to

strike Shaul’s affidavit, which was attached to the NCAA’s Motion. A trial court has

broad discretion in ruling on a motion to strike. Norfolk Southern Ry. Co. v. Estate of

Wagers, 833 N.E.2d 93, 100 (Ind. Ct. App. 2005), trans. denied. Generally, we review a

trial court’s decision to admit or exclude evidence for an abuse of discretion. Id. We

reverse a trial court’s decision to admit or exclude evidence only if that decision is clearly

against the logic and effect of the facts and circumstances before the court, or the

reasonable, probable, and actual deductions to be drawn therefrom. Id. at 101. Further,

the trial court’s decision will not be reversed unless prejudicial error is shown. Id.

       Pursuant to Indiana Trial Rule 56(E) “[s]upporting 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.” Lanni now asserts that Shaul’s “self-serving” affidavit should be

stricken because it lacks foundation, is incomplete, and is based on speculation. She

specifically focuses her attention on paragraphs 4, 6, 8, 9, and 10, which state as follows:


                                             12
4. I have read [Lanni’s] Complaint for Damages. In her Complaint, Lanni
alleges that the NCAA, through its agents, including but not limited to the
NCAA Men’s and Women’s Fencing Committee and Regional Advisory
Committees, was responsible for operating the Midwest Regional Fencing
Competition on March 7, 2010 at the University of Notre Dame Du Lac.
These facts alleged by Lanni are incorrect.

***

6. The NCAA did not have any involvement in any fencing competition
that may have occurred on March 7, 2010, including any fencing
competition at Notre Dame. To the extent a fencing competition was held
at Notre Dame on March 7, 2010, the NCAA did not sanction any such
event. The NCAA did not participate in any such event. The NCAA did
not supervise any such event. The NCAA did not select the officials for
any such event. The NCAA had no other involvement with any such event.

***

8. The only other fencing competitions in which the NCAA has limited
involvement in a given year are the NCAA Regional fencing competitions.
There currently are four NCAA Regional fencing competitions (Midwest,
Mid-Atlantic/South, Northeast, and West). The NCAA Regional fencing
competitions take place two weeks before the National Collegiate Men’s
and Women’s Fencing Championships. The NCAA’s involvement in the
NCAA Regional fencing competitions is through its four Regional
Advisory Committees, one for each region. The Regional Advisory
Committees may serve on the bout committees at the NCAA Regional
fencing competitions if the bout committees convene. The Regional
Advisory Committees answer questions that the host institutions may have,
work with the national head official to secure a regional head official,
address protests that arise in bouts and tabulate the scores to determine
which student athletes will move on to compete in the National Collegiate
Men’s and Women’s Fencing Championships.

9. The NCAA uses set rotations (as recommended by the institutions in
each region) as to where the NCAA Regional fencing competitions will
take place.     The institutions hosting the NCAA Regional fencing
competitions are responsible for organizing, running and supervising the
events. In 2010, the NCAA’s Regional fencing competitions took place at
the following institutions:
        (a) Midwest Region: Northwestern University on March 13-14,
        2010;


                                    13
              (b) Mid-Atlantic/South Region: Drew University on March 13,
              2010;
              (c) Northeast Region: Brown University on March 14, 2010; and
              (d) West Region: University of California, San Diego on March 13,
              2010.

       10. If a school, group of schools or conference put on competitions prior to
       the NCAA’s fencing Regional fencing competitions, the NCAA would
       have no involvement with such competitions.

(Appellant’s App. pp. 28-30).

       Contrary to Lanni’s portrayal, we cannot conclude that the statements contained in

Shaul’s affidavit amount to conclusory lay opinions premised on speculation. In her

affidavit, Shaul avers that she is the championships manager for fencing at the NCAA

and verifies that her testimony is based upon personal knowledge. She attests to factual

matters with respect to the NCAA’s involvement and participation in fencing

competitions. The affidavit does not contain any internal inconsistencies or evasive

language.    While the affidavit might contain some generalized statements, these

statements are nevertheless credible and clearly based on her personal knowledge due to

the position she holds and as such, are admissible evidence.

       However, although Lanni complains that Shaul’s affidavit is incomplete and that

the “NCAA was under an affirmative obligation to tell the entire story,” she fails to

present us with any references to case law establishing this affirmative obligation. We

remind Lanni that “a party opposing the motion [for summary judgment] shall also

designate to the court each material issue of fact which that party asserts precludes entry

of summary judgment[.]” See T.R. 56(C). Therefore, if there was a more complete story

to tell, Lanni should have presented it to the court pursuant to the rules for summary


                                            14
judgment and thereby create an issue of material fact. We conclude that the trial court

did not abuse its discretion when it admitted Shaul’s affidavit.

                                      CONCLUSION

       Based on the foregoing, we conclude that the trial court erred when it converted

the NCAA’s Motion into a motion for summary judgment without awarding Lanni a

reasonable opportunity to present relevant materials in opposition to the motion for

summary judgment; and the trial court did not abuse its discretion by denying Lanni’s

motion to strike Shaul’s affidavit, designated by the NCAA.

       Reversed in part, affirmed in part, and remanded for further proceedings.

BRADFORD, J. and BROWN, J. concur




                                             15
