MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Aug 11 2015, 7:05 am
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 APPELLANT                                    ATTORNEY FOR APPELLEE
Stuart T. Bench                                           Patrick J. Kilburn
Bench Law Office                                          Lloyd & McDaniel, PLC
Indianapolis, Indiana                                     Louisville, Kentucky



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kathryn Jo Gillette a/k/a,                               August 11, 2015
Kathy Gillette,                                          Court of Appeals Cause No.
                                                         78A01-1411-CC-477
Appellant,
                                                         Appeal from the Switzerland Circuit
        v.                                               Court
                                                         Cause No. 78C01-1211-CC-437

Belterra Resort Indiana, LLC,                            The Honorable Gregory Coy, Judge
d/b/a Belterra Casino Resort, et
al,
Appellee.




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 78A01-1411-CC-477 | August 11, 2015    Page 1 of 9
                                             Case Summary
[1]   Kathryn Gillette appeals the trial court’s grant of a motion for summary

      judgment in favor of Belterra Resort Indiana, LLC, d/b/a Belterra Casino

      Resort (“Belterra”). We affirm.


                                                     Issue
[2]   Gillette raises one issue, which we restate as whether the trial court properly

      granted Belterra’s motion for summary judgment.


                                                     Facts
[3]   In 2012, Gillette applied for credit with Belterra, a casino. Pursuant to the

      credit application, Belterra issued an $8,000.00 “marker”, which Gillette used

      to gamble at the casino. Gillette failed to repay the marker, and Belterra filed a

      complaint, suing on the account. Belterra requested treble damages pursuant to

      Indiana Code Section 34-24-3-1.


[4]   In July 2014, Belterra filed a motion for summary judgment arguing that there

      are no genuine issues of material fact regarding Gillette’s failure to pay the

      balance due on the account. In response, Gillette argued that there were

      genuine issues of material fact regarding her mental capacity to enter into a

      contract and that, if a valid contract was formed, Belterra was not entitled to

      treble damages.


[5]   In support of her argument, Gillette designated her own affidavit explaining

      that in 2000, she was diagnosed with restless leg syndrome and prescribed .25

      Court of Appeals of Indiana | Memorandum Decision 78A01-1411-CC-477 | August 11, 2015   Page 2 of 9
      milligrams of Mirapex once per day. In 2009, the dosage of Mirapex was

      increased until she was taking .75 milligrams two to three times per day as

      needed. She stated that prior to the increase of medication she had never

      gambled and that shortly after the dosage was increased she went to a casino

      “and once [she] started gambling, could not stop.” Appellant’s App. p. 68. She

      said her gambling continued until 2013, when she was in financial ruins after

      having withdrawn over $100,000.00 from an IRA, losing investment properties,

      and using her husband’s credit card without his knowledge to charge over

      $63,000.00. She described herself as “a compulsive, pathological gambler.” Id.

      She explained that she had balances due at eight casinos in southern Indiana.


[6]   In her affidavit, Gillette described her metal state:

              12.    . . . . During this time I continued to bet all money that I could,
              borrow, or in effect take money from my Husband without his
              knowledge, cash in individual retirement accounts, and other accounts
              in order to continue gambling. I did not have the ability to make a
              proper decision to quit, nor the ability to knowingly, or intentionally
              sign documents for additional sums. I do not believe my mental
              capacity was such, that I could have refused the acceptance of any
              money or sums, or not had the ability to obtain what money I could to
              continue my gambling problem. . . .
      Id. at 70. She stated she “was not in a correct frame of mind to make a

      knowledgeable, and voluntary decision to borrow this money . . . .” Id. Gillette

      explained that she was never informed that one of the side effects of Mirapex is

      compulsive gambling, which occurs in one out of every seven people who take

      the drug. She also explained that, since her dosage was reduced, she has not

      gambled at all.


      Court of Appeals of Indiana | Memorandum Decision 78A01-1411-CC-477 | August 11, 2015   Page 3 of 9
[7]   Regarding the marker and Belterra’s attempt to withdraw funds from her bank

      account, Gillette acknowledged that Belterra had previously extended credit to

      her in the form of markers, which she had repaid. Gillette also stated:

              8.      . . . . I do believe that I executed a document stating that I
              would repay, and that Belterra could withdraw that sum from my
              checking account at Huntington Bank. It was also my understanding
              that I would specifically be provided notice as to when the amount was
              due, and when they would be forwarding documentation to
              Huntington Bank so that the money would be available, or I could pay
              the marker off ahead of time. . . .
              9.      I never received notice that the payment was in fact “due”, and
              to the best of my knowledge, less than thirty (30) days had passed
              when Belterra Casinos attempted to withdraw that sum of money from
              my account. At the time of their request for withdraw, there was not
              sufficient funds in the account. Had I been notified that the request
              was going to be made, sufficient funds would have been made
              available, and the marker would have been paid as it had been in the
              past.
              Upon learning that this “transaction” had not been honored, I went to
              the Belterra Casino, went to the cashier’s office and provided to them
              the sum of [$8,000.00] in cash, to pay off the balance that was “owed”.
              This money was accepted by the cashier. I waited, and a few minutes
              later the cashier advised me that they would not be able to accept that
              payment as a reimbursement for the transaction, due to the fact that
              they had not received all of the information as to any bank non-
              payment fees, other fees, or charges as a result of there not being
              sufficient funds in the bank to cover the transaction. I then asked if
              they could issue me another marker for [$8,000.00], the cashier gave
              me back my [$8,000.00], and said that she would consider that as a
              trade on a marker, and that I would be notified of any additional fees.
              My belief, and understanding was the marker had been paid off, but
              that I could be responsible for additional bank fees. . . .
              10.    . . . . At the time this marker was taken out, I was still a
              compulsive gambler, and had planned on repaying that marker when I
              took the [$8,000.00] in. When they said it would be considered a new


      Court of Appeals of Indiana | Memorandum Decision 78A01-1411-CC-477 | August 11, 2015   Page 4 of 9
              loan, I took my money back, and spent all of it in the casino at that
              time. . . .
      Id. at 68-69.


[8]   On October 17, 2014, the trial court granted Belterra’s motion for summary

      judgment after concluding that Gillette’s response did not raise a genuine issue

      of material fact. The trial court, however, concluded that Belterra was not

      entitled to treble damages because there was no fraud or other legal basis for

      awarding treble damages. Thus, the trial court entered judgment for Belterra in

      the amount of $8,000.00, plus attorney fees pursuant to the terms of the credit

      application, costs, and interest. Gillette now appeals.


                                                  Analysis
[9]   Gillette argues that the grant of summary judgment in favor of Belterra was

      improper because there are genuine issues of material fact for trial. “We review

      an appeal of a trial court’s ruling on a motion for summary judgment using the

      same standard applicable to the trial court.” Perdue v. Gargano, 964 N.E.2d 825,

      831 (Ind. 2012). “Therefore, summary judgment is appropriate only if the

      designated evidence reveals ‘no genuine issue as to any material fact and that

      the moving party is entitled to a judgment as a matter of law.’” Id. (quoting

      Ind. Trial Rule 56(C)). Our review of summary judgment is limited to evidence

      designated to the trial court. Id. (citing T.R. 56(H)). All facts and reasonable

      inferences drawn from the evidence designated by the parties are construed in a

      light most favorable to the non-moving party. Id.



      Court of Appeals of Indiana | Memorandum Decision 78A01-1411-CC-477 | August 11, 2015   Page 5 of 9
[10]   Here, pursuant to Gillette’s request, the trial court issued findings of fact and

       conclusions of law. However, a trial court’s entry of findings and conclusions is

       neither required nor prohibited in the summary judgment context. Alva Elec.,

       Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d 263, 267 (Ind. 2014).

       Although specific findings aid our review of a summary judgment ruling, they

       are not binding on us. Id. Thus, we owe no deference to the trial court’s

       findings and conclusions. See id.


[11]   On appeal, Gillette argues there are genuine issues of fact regarding whether

       she had the mental capacity to contract with Belterra, whether she received

       notice from Belterra before it attempted to withdraw funds from her bank

       account, whether the $8,000.00 she took to Belterra was used to repay the

       marker and a new marker was issued, whether she signed a post-dated check,

       and whether she was required to repay the marker by a specific date. However,

       in response to Belterra’s motion for summary judgment, aside from a long list

       of purported questions of material fact, Gillette specifically argued only that she

       lacked the mental capacity to form a contract and that Belterra was not entitled

       to treble damages.1


[12]   Because the trial court did not award Belterra treble damages and Belterra does

       not challenge that decision, we need not address the issues raised by Gillette as

       they relate to an award of treble damages. To the extent the issues raised by



       1
         The bulk of Gillette’s memorandum in opposition to summary judgment focused on the award of treble
       damages.

       Court of Appeals of Indiana | Memorandum Decision 78A01-1411-CC-477 | August 11, 2015        Page 6 of 9
       Gillette are new challenges to the grant of summary judgment, a party may not

       raise a new argument for the first time on appeal, even in an appeal from a

       summary judgment. Smith v. Taulman, 20 N.E.3d 555, 571 (Ind. Ct. App.

       2014). Thus, the only properly preserved issue is whether there is a genuine

       issue of material fact regarding Gillette’s mental capacity. 2


[13]   Relying on Hughley v. State, 15 N.E.3d 1000 (Ind. 2014), Gillette contends her

       affidavit was sufficient to create a genuine issue of material fact for trial

       regarding her mental capacity. In Hughley, our supreme court reversed a grant

       of summary judgment where, in response to a motion for summary judgment, a

       defendant designated “a perfunctory and self-serving” affidavit to rebut the

       plaintiff’s prima facie case. Hughley, 15 N.E.3d at 1004. The Hughley court held

       that the affidavit was minimally sufficient to raise a factual issue to be resolved

       at trial, thereby defeating the motion for summary judgment. Id.


[14]   Mindful of Hughley, we nevertheless conclude that Gillette’s affidavit was not

       sufficient to defeat Belterra’s motion for summary judgment. “The test for

       determining a person’s mental capacity to contract is whether the person was

       able to understand in a reasonable manner the nature and effect of his act.”

       Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Indiana, Inc., 832 N.E.2d 559, 562 (Ind.



       2
         Even if the remaining issues were properly preserved, they would be waived because they are not supported
       by cogent reasoning and citation to appropriate legal authority as required by Indiana Appellate Rule
       46(A)(8)(a). See Dickes v. Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012) (“A party waives an issue where
       the party fails to develop a cogent argument or provide adequate citation to authority and portions of the
       record.”).



       Court of Appeals of Indiana | Memorandum Decision 78A01-1411-CC-477 | August 11, 2015           Page 7 of 9
       Ct. App. 2005). To avoid a contract, the party must not only have been of

       unsound mind, but also must have had no reasonable understanding of the

       contract’s terms due to his or her instability. Id.


[15]   Although Gillette’s affidavit may have created a question of fact regarding her

       soundness of mind while taking the increased dose of Mirapex, her affidavit did

       not create a question of fact regarding whether she had no reasonable

       understanding of the contract’s terms. To the contrary, Gillette’s affidavit

       establishes she understood the terms of the contract to the extent that she was

       taking out a loan for $8,000.00 and was required to repay the loan and that she

       had repaid the loans in the past. In fact, she even went to Belterra to repay the

       loan but was unable to do so because of a problem with the paperwork. Thus,

       Gillette’s affidavit establishes that she reasonably understood the terms of her

       contract with Belterra.


[16]   As such, even if there is a question of fact regarding Gillette’s soundness of

       mind following the increased dosage of Mirapex, she has not designated

       evidence showing she had no reasonable understanding of the contract’s terms,

       which is necessary to the avoid her contract with Belterra. See Wilcox, 832

       N.E.2d at 562. Thus, Gillette has not shown that there is a genuine issue of

       material fact for trial regarding her mental capacity. See Bushong v. Williamson,

       790 N.E.2d 467, 474 (Ind. 2003) (holding that, despite conflicting facts and

       inferences on some elements of a claim, summary judgment may be proper




       Court of Appeals of Indiana | Memorandum Decision 78A01-1411-CC-477 | August 11, 2015   Page 8 of 9
       where there is no dispute or conflict regarding a fact that is dispositive of the

       claim).3 The trial court’s grant of summary judgment was proper.


                                                   Conclusion
[17]   Because Gillette did not designate evidence showing that there are genuine

       issues of material fact for trial, the trial court properly granted Belterra’s motion

       for summary judgment. We affirm.


[18]   Affirmed.


       Riley, J., and Bailey, J., concur.




       3
          Gillette also argues that there is no accounting for the denial of an earlier motion for summary judgment
       filed by Belterra and the grant of this motion for summary judgment. Even if we were bound by the trial
       court’s reasons for denying the earlier motion for summary judgment, the evidence designated by Belterra in
       support of its motions and Gillette’s responses to the two motions differed significantly from motion to
       motion.

       Court of Appeals of Indiana | Memorandum Decision 78A01-1411-CC-477 | August 11, 2015             Page 9 of 9
