MEMORANDUM DECISION
                                                                   Jun 02 2015, 8:35 am

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.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Delmar P. Kuchaes                                         Julia Blackwell Galinas
Smithville, Indiana                                       Jeffrey J. Mortier
                                                          Maggie L. Smith
                                                          Frost Brown Todd LLC
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Delmar P. Kuchaes,                                        June 2, 2015
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          49A04-1411-PL-545
        v.
                                                          Appeal from the Marion
Public Storage, Inc.,                                     Superior Court.
Appellee-Defendant.                                       The Honorable Timothy W.
                                                          Oakes, Judge.
                                                          Cause No. 49D13-1203-PL-
                                                          12284



Riley, Judge




Court of Appeals of Indiana | Memorandum Decision | 49A04-1411-PL-545 | June 2, 2015      Page 1 of 8
                                    STATEMENT OF THE CASE

[1]   Appellant-Plaintiff, Delmar P. Kuchaes (Kuchaes), appeals the trial court’s

      Order, ruling on cross-motions for summary judgment in an action concerning

      the enforcement of a lien by Appellee-Defendant, Public Storage, Inc. (Public

      Storage).


[2]   We reverse and remand for further proceedings.


                                                    ISSUES

[3]   Kuchaes raises seven issues on appeal, three of which we find dispositive and

      which we consolidate and restate as the following two issues:

      (1) Whether the trial court erred on procedural grounds by granting Public

      Storage’s motion for summary judgment without considering Kuchaes’

      response and materials in opposition thereto; and

      (2) Whether the trial court erred on procedural grounds by ruling on the parties’

      cross-motions for summary judgment without first conducting a hearing.


                           FACTS AND PROCEDURAL HISTORY

[4]   On June 10, 2009, Kuchaes and Public Storage executed a Rental Agreement,

      under which Kuchaes leased a storage unit from Public Storage’s facility in

      Indianapolis, Indiana, on a month-to-month basis for $64.00 per month.

      Pursuant to Indiana Code section 26-3-8-11, the Rental Agreement notified

      Kuchaes that Public Storage would hold a lien against any personal property

      stored in Kuchaes’ unit, which Public Storage could enforce if Kuchaes

      defaulted on his rental obligation.

      Court of Appeals of Indiana | Memorandum Decision | 49A04-1411-PL-545 | June 2, 2015   Page 2 of 8
[5]   Kuchaes paid the rent on his unit from June through November of 2009, after

      which he did not make any further payments. On February 22, 2010, Public

      Storage notified Kuchaes that it would be enforcing its lien unless he paid his

      outstanding balance of $278.00 by March 26, 2010. Kuchaes did not comply,

      so on March 26, 2010, Public Storage auctioned the contents of his storage unit

      for $515.00. On March 26, 2012, Kuchaes filed a Complaint, alleging that

      Public Storage had breached the Rental Agreement and acted negligently in

      selling his personal property. Even though the Rental Agreement stipulated

      that the value of the stored property should not exceed $5,000, Kuchaes sought

      $25,000 to replace his property, as well as treble and punitive damages.


[6]   On July 31, 2014, Public Storage filed a motion for summary judgment, arguing

      that it was entitled to judgment as a matter of law because it held a valid and

      enforceable lien at the time Kuchaes’ property was sold. On August 11, 2014,

      Kuchaes filed his own motion for partial summary judgment, asserting that

      Public Storage had failed to comply with both Indiana law and its standard

      operating procedure in the foreclosure of its lien. Then, on September 2, 2014,

      Kuchaes filed his response to Public Storage’s summary judgment motion,

      along with his designation of evidence and opposing affidavit. Kuchaes also

      filed a motion requesting a hearing on the parties’ cross-motions. On

      September 3, 2014, the trial court issued an Order, summarily granting Public

      Storage’s motion for summary judgment and denying Kuchaes’ motion for

      partial summary judgment. On October 1, 2014, Kuchaes filed a motion to

      correct error, which the trial court denied on November 3, 2014.


      Court of Appeals of Indiana | Memorandum Decision | 49A04-1411-PL-545 | June 2, 2015   Page 3 of 8
[7]   Kuchaes now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

                                             I. Standard of Review

[8]   Summary judgment is a mechanism for terminating litigation “about which

      there can be no actual dispute and which may be determined as a matter of

      law.” Miller v. Yedlowski, 916 N.E.2d 246, 249 (Ind. Ct. App. 2009), trans.

      denied. On appeal, we use the same standard of review as that used by the trial

      court—that is, summary judgment is only appropriate if the evidence reveals

      that there is no genuine issue of material fact and that the moving party is

      entitled to judgment as a matter of law. Id. (citing Ind. Trial Rule 56(C)). The

      trial court’s ruling “is cloaked with a presumption of validity.” Id. Pure

      questions of law are reviewed de novo, and we construe all facts and reasonable

      inferences in favor of the non-moving party. Id. The burden is on the party

      appealing the summary judgment to persuade our court that the trial court’s

      decision is erroneous. Id.


                                II. Response to Summary Judgment Motion

[9]   Kuchaes claims that the trial court procedurally erred by granting Public

      Storage’s summary judgment motion without considering his response in

      opposition thereto. Subsequent to the filing of a summary judgment motion,

      the “adverse party shall have thirty (30) days after service of the motion to serve

      a response and any opposing affidavits.” T.R. 56(C). Because Public Storage

      filed its summary judgment motion on July 31, 2014, Kuchaes was required “to


      Court of Appeals of Indiana | Memorandum Decision | 49A04-1411-PL-545 | June 2, 2015   Page 4 of 8
       serve a response or any other opposing affidavits” no later than September 2,

       2014.1 HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98 (Ind. 2008).


[10]   On September 2, 2014, Kuchaes submitted his response and designated

       materials in opposition to Public Storage’s summary judgment motion by

       certified mail. See T.R. 5(F)(3) (providing that a pleading, motion, or other

       paper is considered “filed” with the court at the time it is “[m]ail[ed] to the clerk

       by registered, certified or express mail return receipt requested”). Therefore, we

       find that Kuchaes filed his response within the thirty-day timeframe. However,

       the trial court did not actually receive Kuchaes’ filing until September 4, 2014—

       one day after it issued its Order on the cross-motions. It is well established that

       the trial court “must be aided in the summary process by the parties’ specific

       designations of supporting evidentiary matter.” State ex rel. Corll v. Wabash Cir.

       Ct., 631 N.E.2d 914, 916 (Ind. 1994). Kuchaes’ timely-filed designated

       materials were necessary to an evaluation of whether a genuine issue of

       material fact existed; thus, the trial court’s Order was premature.


[11]   We recognize that the trial court’s determination was likely based, in part, on a

       review of the designated materials that Kuchaes filed on August 11, 2014, in

       support of his partial summary judgment motion. Nevertheless, a cross-motion




       1
         The thirty-day mark actually fell on August 30, 2014—a Saturday. Pursuant to Trial Rule 6(A), the filing
       deadline was extended “until the end of the next day that is not a Saturday, a Sunday, a legal holiday, or a
       day on which the office is closed.” Because the following Monday, September 1, 2014, was Labor Day—a
       legal holiday as defined by Indiana Code section 1-1-9-1—Kuchaes had until Tuesday, September 2, 2014, to
       timely file his response.

       Court of Appeals of Indiana | Memorandum Decision | 49A04-1411-PL-545 | June 2, 2015             Page 5 of 8
       for summary judgment is not a response to an adverse party’s summary

       judgment motion as contemplated by Trial Rule 56(C). Rather, when cross-

       motions for summary judgment are filed, the trial court must dispose of them

       separately—deciding for each motion whether the moving party is entitled to

       judgment as a matter of law and construing all facts in a light most favorable to

       the non-moving party. See Sargent v. State, 27 N.E.3d 729, 732 (Ind. 2015).

       Accordingly, the trial court should not have granted or denied either summary

       judgment motion until the respective adverse party had been afforded thirty

       days to respond. Because Kuchaes filed his response within the requisite time,

       we conclude that the trial court erred by entering summary judgment for Public

       Storage without considering Kuchaes’ opposing brief, affidavit, and other

       designated materials.


                                             III. Denial of Hearing

[12]   Kuchaes also claims that the trial court erred by ruling on the parties’ cross-

       motions without first conducting a hearing. In general, Trial Rule 56(C) gives a

       trial court discretion to conduct a hearing on a summary judgment motion.

       However, the court “is required to conduct a summary judgment hearing when

       a party requests a hearing ‘no later than ten (10) days after the response was

       filed or was due.’” Mesa v. State, 5 N.E.3d 488, 494 (Ind. Ct. App. 2014)

       (quoting T.R. 56(C)), reh’g denied, trans. denied. “Prejudice is presumed when a

       trial court fails to follow the mandates within Trial Rule 56 regarding the

       scheduling of a time for a hearing.” Id.




       Court of Appeals of Indiana | Memorandum Decision | 49A04-1411-PL-545 | June 2, 2015   Page 6 of 8
[13]   In this case, Kuchaes filed his response to Public Storage’s motion for summary

       judgment on September 2, 2014. As such, either party had until September 12,

       2014, to file a motion for a hearing. With respect to Kuchaes’ motion for

       summary judgment filed on August 11, 2014, Public Storage could have filed a

       response until September 10, 2014, and either party could have requested a

       hearing on Kuchaes’ motion at any time prior to September 22, 2014 (the actual

       ten-day mark, September 20, 2014, fell on a Saturday). Thus, Kuchaes’

       September 2, 2014 motion was a timely request for a hearing on both motions.


[14]   Public Storage concedes that Trial Rule 56(C) requires a summary judgment

       hearing when it is requested. Nevertheless, it contends that the trial court

       properly declined to hold a hearing “under the specific facts of this case.”

       (Appellee’s Br. p. 22). Specifically, Public Storage argues that when the trial

       court issued its Order, it considered Kuchaes’ cross-motion and supporting

       materials, which were incorporated into Kuchaes’ subsequent response to

       Public Storage’s motion. We are not persuaded by this argument. As already

       noted, Kuchaes’ cross-motion was an independent motion and not a response

       to Public Storage’s summary judgment motion. See Sargent, 27 N.E.3d at 732.

       The fact that both cross-motions “informed the trial court that there were no

       genuine issues of fact” is insignificant because “a moving party ‘concedes and

       affirms that there is no issue of fact only for purposes of his own motion.’” In re

       Garden & Turf Supply Corp., 440 N.E.2d 710, 719 (Ind. Ct. App. 1982);

       (Appellee’s Br. p. 22). Furthermore, contrary to Public Storage’s assertion,

       Kuchaes designated different evidentiary materials to oppose Public Storage’s


       Court of Appeals of Indiana | Memorandum Decision | 49A04-1411-PL-545 | June 2, 2015   Page 7 of 8
       motion than he had relied upon in support of his own motion. Our supreme

       court has previously emphasized that “the clear explicit dictates of the Indiana

       Rules of Trial Procedure” must be obeyed. Mesa, 5 N.E.3d at 494 (quoting Otte

       v. Tessman, 426 N.E.2d 660, 661 (Ind. 1981)). Accordingly, we conclude that

       the trial court erred in granting Public Storage’s summary judgment motion and

       denying Kuchaes’ partial summary judgment motion without a hearing.


                                                CONCLUSION

[15]   Based on the foregoing, we conclude that the trial court erred in granting Public

       Storage’s motion for summary judgment without considering Kuchaes’

       response and materials in opposition thereto. We further conclude that the trial

       court erred by ruling on the parties’ cross-motions for summary judgment

       without conducting a hearing as requested by Kuchaes. Accordingly, we

       remand with instructions for the trial court to conduct a hearing on both

       summary judgment motions and to consider all of the parties’ timely-filed

       materials in ruling on Public Storage’s motion for summary judgment. 2


[16]   Reversed and remanded for further proceedings.


[17]   Bailey, J. and Barnes, J. concur




       2
         Public Storage requests that, pursuant to Indiana Appellate Rule 37(A), our court temporarily stay the
       appeal while the trial court conducts a hearing and issues a new order. This we cannot do. Appellate Rule
       37(A) requires the party to file a verified motion which “demonstrate[s] that remand will promote judicial
       economy or is otherwise necessary for the administration of justice.” No such motion was filed here, and we
       decline to retain jurisdiction or otherwise limit the trial court’s authority on remand. See App. R. 37(B).
       Because we remand to the trial court, we do not reach the parties’ arguments concerning the merits of their
       respective summary judgment motions.

       Court of Appeals of Indiana | Memorandum Decision | 49A04-1411-PL-545 | June 2, 2015            Page 8 of 8
