MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                                Apr 01 2020, 9:51 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 APPELLANTS                                   ATTORNEYS FOR APPELLEE
Julie A. Camden                                           David J. Jurkiewicz
Camden & Meridew, P.C.                                    Nathan T. Danielson
Fishers, Indiana                                          Bose McKinney & Evans LLP
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Herman Jeffrey Baker, et al.,                             April 1, 2020
Appellants-Defendants,                                    Court of Appeals Case No.
                                                          19A-CC-2960
        v.                                                Appeal from the Hamilton Circuit
                                                          Court
NextGear Capital, Inc.,                                   The Honorable Paul A. Felix,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          29C01-1809-CC-8218



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CC-2960 | April 1, 2020                    Page 1 of 9
                                            Case Summary
[1]   NextGear Capital, Inc., a corporation that finances vehicles for dealers

      (“Lender”), was granted summary judgment upon a breach of contract claim

      against CT 102 LLC d/b/a JD Byrider of New Haven, also d/b/a Metro

      Motors, and guarantor Herman Jeffery Baker (“Baker”), (collectively, at times,

      “Dealer”). Dealer presents a single, consolidated and restated, issue for appeal:

      whether the trial court improvidently granted summary judgment because there

      is a genuine issue of material fact as to the appropriate amount of damages.1

      We reverse and remand for an evidentiary hearing on damages.



                              Facts and Procedural History
[2]   On January 31, 2014, Dealer and Lender entered into an agreement whereby

      Lender would, in installments, advance funds to Dealer for the purchase of

      vehicles, up to $300,000.00 (“the Agreement”). Baker executed an

      unconditional guaranty of repayment of the corresponding note. Subsequently,

      Dealer utilized Lender’s funds to purchase vehicles which were offered for sale

      to the public on a showroom floor.




      1
        Dealer has not explicitly conceded liability. However, at the conclusion of its Reply Brief, Dealer requests
      that this Court remand the matter for a hearing on damages. Indiana Trial Rule 56(C) provides that
      “summary judgment may be rendered upon less than all the issues or claims, including without limitation the
      issue of liability or damages alone[.]”

      Court of Appeals of Indiana | Memorandum Decision 19A-CC-2960 | April 1, 2020                      Page 2 of 9
[3]   On September 4, 2018, Lender filed its three-count complaint, claiming that

      Dealer had breached the Agreement, Baker was liable as a guarantor, and

      Dealer had converted property by selling thirteen vehicles without remittance to

      Lender. Dealer filed an Answer and, among other contentions, claimed that

      Lender had imposed incorrect charges and failed to provide Dealer proper

      credit.2


[4]   On August 13, 2019, Lender filed a motion for summary judgment with a

      designation of materials. Greg Hidbrader (“Hidbrader”), employed by Lender

      as a senior recovery specialist, submitted an affidavit averring that Dealer had

      “not repaid as agreed” under the terms of the Agreement and owed $177,947.73

      as of June 24, 2019. (App. Vol. II, pg. 62.) A summary table indicated that

      Dealer owed $173,983.17 for principal, interest, and fees, $3,717.46 for post

      write-off interest, and $247.10 for account-level charges, “less post write-off

      payments” of zero. Id. at 63. Hidbrader averred that he had relied upon a

      report, attached as Exhibit 1. Exhibit 1, titled “Balance Calculation for Written

      Off Account Report” consisted of a chart listing fourteen vehicles, with

      corresponding columns for original amount, principal balance, floorplan fee

      balance, interest balance, and other fee balance.


[5]   On September 11, 2019, Dealer responded to the motion for summary

      judgment, arguing, among other things, that the existence of a genuine issue of



      2
        Dealer initially raised defenses such as improper venue and falsification of a document but has abandoned
      those contentions.

      Court of Appeals of Indiana | Memorandum Decision 19A-CC-2960 | April 1, 2020                    Page 3 of 9
      material fact as to damages precluded the entry of summary judgment. Dealer

      designated the affidavit of Baker, who averred that Lender had claimed inflated

      damages, interfered with business operations such that Dealer could not timely

      pay its obligations, and refused to credit Dealer for a protection program despite

      Dealer’s opt-out of the program. Also, according to Baker, Lender had, on

      May 23, 2018, repossessed several vehicles (“the Collateral”) without providing

      any accounting of what happened to the Collateral, such as sale at auction, and

      without providing a corresponding credit.


[6]   Lender obtained trial court permission to file a supplemental designation of

      materials in support of summary judgment. Lender submitted the supplemental

      affidavit of Hidbrader, with some payment records attached. Hidbrader averred

      that Dealer had received credit for fees for a protection program Dealer had

      rejected, as indicated by Exhibit 2. Exhibit 3, an unsigned payment receipt,

      indicated that proceeds from the sale of a Dodge Avenger labeled Stock 1020

      had been posted to reduce the amounts due for Stock 1021, Stock 1048, and

      Stock 1019.


[7]   On October 22, 2019, the trial court entered summary judgment on the breach

      of contract claim and ordered Dealer to pay Lender $177,947.73 (with interest

      accruing after June 24, 2019), the entirety of the damages requested by Lender.

      The trial court did not rule upon Lender’s conversion claim or address the

      disposition of the Collateral as related to damages. Finding no just reason for

      delay, the trial court certified its judgment as final. Dealer filed a Motion to



      Court of Appeals of Indiana | Memorandum Decision 19A-CC-2960 | April 1, 2020   Page 4 of 9
      Reconsider, which the trial court treated as a motion to correct error, and

      summarily denied. Dealer now appeals.



                                 Discussion and Decision
                                        Standard of Review
[8]   “The purpose of summary judgment is to terminate litigation about which there

      can be no factual dispute and which may be determined as a matter of law.”

      Bd. of Sch. Comm’rs of City of Indianapolis v. Pettigrew, 851 N.E.2d 326, 330 (Ind.

      Ct. App. 2006). We review the trial court’s grant of summary judgment under a

      well-settled standard:


              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. Reed, 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.3d 37, 39 (Ind. 2002).


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




      Court of Appeals of Indiana | Memorandum Decision 19A-CC-2960 | April 1, 2020   Page 5 of 9
[9]    A fact is material if its resolution would affect the outcome of the case. Hughley

       v. State, 15 N.E.3d 1000, 2003 (Ind. 2014). 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.


                                                   Analysis
[10]   To recover for a breach of contract, the plaintiff must prove a contract existed,

       the defendant breached the contract, and the plaintiff suffered damage as a

       result of the contract breach. Collins v. McKinney, 871 N.E.2d 363, 370 (Ind. Ct.

       App. 2007). Accordingly, in summary judgment proceedings, Lender initially

       had the burden to show, prima facie, the existence of an enforceable contract,

       Dealer’s breach, and Lender’s damages as a result of Dealer’s breach.


[11]   In adjudging Dealer liable for a breach of contract, the trial court found that

       “the Note and Guaranty were valid and binding” and Dealer had breached the

       Agreement by failure to make payments due. Appealed Order at 1. Dealer

       does not dispute the existence of an enforceable contract. Dealer does not

       explicitly dispute that there was a breach of contract on its part, inasmuch as

       Dealer admitted that it failed to pay a third-party creditor, which was an event

       of default under the Agreement, and Dealer does not claim to have timely

       satisfied its obligations to Lender. However, Dealer claimed that it was

       overcharged and denied appropriate credits. Also, Dealer claimed that Lender

       took various actions that were commercially unreasonable, making Dealer’s full

       performance impossible.


       Court of Appeals of Indiana | Memorandum Decision 19A-CC-2960 | April 1, 2020   Page 6 of 9
[12]   In awarding to Lender the entirety of its claimed damages, the trial court found

       that there was “no evidence that the calculation of debt was incorrect.”

       Appealed Order at 3. Dealer contends that there exists a genuine issue of

       material fact as to the appropriate amount of damages, and the trial court

       misplaced the burden of proof and resolved each disputed fact and inference in

       favor of Lender.


[13]   “The measure of damages in a breach of contract case is the loss actually

       suffered by the breach.” Dana Companies, LLC v. Chaffee Rentals, 1 N.E.3d 738,

       748 (Ind. Ct. App. 2013). Lender insists that its exhibits provided the trial court

       with a proper history of transactions and shifted the burden to Dealer to

       produce an alternative calculation in order to withstand summary judgment.

       We disagree.


[14]   To demonstrate its entitlement to the particular monetary judgment it sought,

       as a matter of law, Lender had to make designations sufficient to obviate the

       need for the trial court to resolve a genuine and material issue of fact. This

       might be accomplished by showing, without dispute, Lender advanced sums

       upon clear repayment terms and no payments were made. Or Lender might

       show a complete history of transactions that were not disputed. In those

       situations, where no payments were made, or a sum certain was paid, the trial

       court could simply make a mathematical calculation in rendering summary

       judgment. But that is not what happened here. The trial court was not

       provided with documents whose authenticity and accuracy were established,

       nor was the trial court tasked with simply making a mathematical calculation to

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-2960 | April 1, 2020   Page 7 of 9
       find a proper damages amount. Lender assessed various fees and charges in

       addition to principal sums advanced for the purchase of vehicles, designated an

       affidavit with a summary of amounts claimed, and provided some

       unauthenticated records of payment.


[15]   In ruling on a motion for summary judgment, the trial court must consider only

       the 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). Such

       evidence does not include inadmissible hearsay contained in an affidavit. Id.

       Nor does it include documents that are unsworn statements or unverified

       exhibits. Id. Here, Lender submitted the affidavit of Hidbrader, and he averred

       that he had relied upon Exhibit 1. Exhibit 1, titled “Balance Calculation for

       Written Off Account Report,” was an unverified summary chart of unknown

       origin,3 which purportedly allocated past payments between fourteen vehicles.

       It was simply inadmissible hearsay.


[16]   Moreover, we find it particularly troubling that the trial court did not address

       the repossession of the Collateral as having any bearing upon what, if anything,

       Dealer owes to Lender. It may be (and we cannot discern from the bare record)

       that the vehicles for which some payments were made were not the same as

       those allegedly repossessed. Lender is at best evasive as to what happened to

       the Collateral and, at bottom, ignores Dealer’s claim that it should receive



       3
        Hidbrader averred that he relied upon Exhibit 1, “Balance Calculation for Written Off Account Report,”
       but did not purport to have created the document or have familiarity with its creation.

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-2960 | April 1, 2020                  Page 8 of 9
       credit for the Collateral. Lender points out that the Agreement did not require

       the sale of repossessed vehicles before the pursuit of judgment. This is true, but

       the Agreement also did not provide that Lender could repossess and retain

       vehicles without credit to Dealer.


[17]   Essentially, Lender would require Dealer to establish the validity of any

       affirmative defense to payment of the full amount at the summary judgment

       stage. This is not the burden on the non-movant. See Hughley, 15 N.E.3d at

       1003 (requiring that all reasonable inferences be drawn in favor of the non-

       movant). “If there is any doubt as to what conclusion a jury could reach, then

       summary judgment is improper.” Owens Corning Fiberglass Corp. v. Cobb, 754

       N.E.2d 905, 909 (Ind. 2001).



                                               Conclusion
[18]   We reverse the summary judgment order and remand for an evidentiary hearing

       on damages.


[19]   Reversed and remanded.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CC-2960 | April 1, 2020   Page 9 of 9
