MEMORANDUM DECISION                                                             FILED
                                                                           May 25 2016, 7:20 am

Pursuant to Ind. Appellate Rule 65(D),                                          CLERK
this Memorandum Decision shall not be                                       Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
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                                        ATTORNEY FOR APPELLEE
Kirk R. Jocham                                          Michael L. Starzec
Greenfield, Indiana                                     Blitt and Gaines, P.C.
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kirk R. Jocham,                                         May 25, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        30A01-1504-CC-150
        v.                                              Interlocutory Appeal from the
                                                        Hancock Superior Court
Discover Bank,                                          The Honorable Terry K. Snow,
Appellee-Plaintiff                                      Judge

                                                        The Honorable R. Scott Sirk,
                                                        Commissioner
                                                        Trial Court Cause No.
                                                        30D01-1401-CC-49



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1504-CC-150 | May 25, 2016                  Page 1 of 11
                                             Case Summary
[1]   Kirk R. Jocham, pro se, brings an interlocutory appeal from the trial court’s

      orders in favor of Discover Bank (“Discover”) granting a motion to withdraw

      admissions and granting additional time to respond to Jocham’s summary

      judgment motion. Jocham argues that the trial court abused its discretion in

      granting Discover’s motion to withdraw and exceeded its authority in granting

      Discover additional time to respond to summary judgment. Finding that the

      trial court did not abuse its discretion in granting Discover’s motion to

      withdraw admissions, but that this order renders the additional time issue moot,

      we affirm the order granting the motion to withdraw, vacate the order granting

      additional time, and remand for further proceedings.


                                 Facts and Procedural History
[2]   On January 15, 2014, Discover filed a complaint against Jocham alleging that

      he “utilized a charge account and/or line of credit issued by [Discover]

      whereby [he] could charge goods and services to their account and/or receive

      cash advances.” Appellant’s App. at 24. Discover further alleged that Jocham

      “subsequently defaulted by failing to pay for the indebtedness incurred resulting

      in the balance due [Discover] of $15,166.55.” Id. Finally, Discover alleged that

      “[d]ue demand has been made on [Jocham] to pay this amount” and he has

      “failed to do so.” Id. Jocham subsequently filed his answer to the complaint

      essentially denying the allegations and asserting several affirmative defenses.




      Court of Appeals of Indiana | Memorandum Decision 30A01-1504-CC-150 | May 25, 2016   Page 2 of 11
[3]   On November 10, 2014, Jocham sent by certified mail his “First Request for

      Admissions and Related Interrogatory” to Indianapolis counsel for Discover.

      Id. at 29. The record indicates that an employee at counsel’s office signed for

      the requests for admissions on November 12, 2014. Discover did not answer or

      otherwise respond to the request for admissions within thirty days after service

      thereof as designated in Jocham’s request. Therefore, pursuant to Indiana Trial

      Rule 36(A), the following matters requested to be admitted were deemed

      admitted by operation of law on December 12, 2014:

              1. Admit there is no written agreement or written contract,
              signed by Jocham, between Jocham and Discover.

              2. Admit there is no agreement or contract between Jocham and
              Discover.

              3. Admit there is no written agreement or written contract,
              signed by Jocham, between Discover and Jocham obligating
              Jocham to pay Discover the alleged debt.

              4. Admit there is no agreement or contract between Discover
              and Jocham obligating Jocham to pay Discover the alleged debt.

              5. Admit there is no charge account issued by Discover whereby
              Jocham could charge goods and services.


              6. Admit there is no line of credit issued by Discover whereby
              Jocham could charge goods and services.

              7. Admit there no charge account issued by Discover whereby
              Jocham could receive cash advances.




      Court of Appeals of Indiana | Memorandum Decision 30A01-1504-CC-150 | May 25, 2016   Page 3 of 11
               8. Admit there is no line of credit issued by Discover whereby
               Jocham could receive cash advances.

               9. Admit Jocham has not failed to pay any indebtedness to
               Discover.

               10. Admit no due demand has been made on Jocham to pay any
               alleged indebtedness to Discover.

               11. Admit Jocham is not indebted to Discover.

               12. Admit Jocham does not owe Discover any payment.

               13. Admit no money is due Discover from Jocham.

               14. Admit there is no written agreement or written contract,
               signed by Jocham, between Jocham and Discover obligating
               Jocham to pay Discover’s attorney fees.

               15. Admit there is no agreement or contract between Jocham
               and Discover obligating Jocham to pay Discover’s attorney fees.

               16. Admit there is no law obligating Jocham to pay Discover’s
               attorney fees.


      Id. at 29-32. 1


[4]   Based upon these admissions, Jocham filed a motion for summary judgment

      and designation of evidence on January 12, 2015. On January 30, 2015,

      Discover filed its reply to Jocham’s motion for summary judgment and




      1
       The requests for admission refer to the parties as “Plaintiff” and “Defendant,” but we use their names for
      purposes of clarity.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1504-CC-150 | May 25, 2016               Page 4 of 11
      requested leave to answer discovery pursuant to Indiana Trial Rule 60(B).

      Discover did not designate any evidence in opposition to summary judgment in

      its reply. On February 2, 2015, the trial court entered an order granting

      Discover an additional thirty days to answer discovery and found that “no

      summary judgment is granted” at this time. Id. at 6.


[5]   On February 25, 2015, Jocham filed his response to Discover’s reply to his

      motion for summary judgment and request for leave to answer discovery.

      Among other things, Jocham asserted that Trial Rule 60(B) was inapplicable to

      Discover’s request for leave to answer discovery. Accordingly, on March 2,

      2015, Discover filed a motion for withdrawal of admissions pursuant to Indiana

      Trial Rule 36(B). The trial court held a hearing on Jocham’s motion for

      summary judgment on March 3, 2015. Following the hearing, the trial court

      entered an order granting Discover’s motion for withdrawal of admissions. The

      trial court also ordered,

              the court hereby finds and rules in the interest of equity and
              fairness the court allows [Discover] 30 days to properly respond
              to [Jocham’s] motion for summary judgment. [Discover] shall
              have 30 days from today[’]s date to file a response pursuant to
              56(C) of the Indiana Rules of Trial Procedure on or before April
              3, 2015. Court sets matter for summary judgment hearing on
              [Jocham’s] motion on April 14, 2015….


      Id. at 10. The trial court certified its orders at Jocham’s request, and we

      accepted jurisdiction of this interlocutory appeal.




      Court of Appeals of Indiana | Memorandum Decision 30A01-1504-CC-150 | May 25, 2016   Page 5 of 11
                                     Discussion and Decision
[6]   Jocham appeals two orders of the trial court: the court’s order granting

      Discover’s motion for withdrawal of admissions and its order granting Discover

      an additional thirty days to respond to summary judgment. We will address

      each order in turn.


           Section 1 – The trial court did not abuse its discretion in
            granting Discover’s motion to withdraw admissions.
[7]   Pursuant to Indiana Trial Rule 36, “the failure to respond in a timely manner to

      a request for admissions causes those matters to be admitted and conclusively

      established by operation of law.” Larson v. Karagan, 979 N.E.2d 655, 660 (Ind.

      Ct. App. 2012). “Requests for admissions under T.R. 36 may, in addition to

      addressing evidentiary matters, ask for admissions as to legal issues,

      contentions, and conclusions, if related to the facts of the case.” Id. Matters

      that are admitted according to the rule are deemed conclusively established,

      eliminating the need to prove them at trial. Id.


[8]   However, pursuant to Trial Rule 36(B), a party who made admissions by failing

      to respond may move to withdraw those admissions. Id. A trial court may

      grant a motion to withdraw admissions if it determines both: (1) withdrawal or

      amendment will subserve the presentation of the merits, and (2) prejudice in

      maintaining the action or defense will not result to the party obtaining the

      admissions. Id. “The party seeking withdrawal has the burden of

      demonstrating the presentation of the merits will be subserved by withdrawal,


      Court of Appeals of Indiana | Memorandum Decision 30A01-1504-CC-150 | May 25, 2016   Page 6 of 11
       and the party who obtained the admissions has the burden of demonstrating it

       will be prejudiced if the trial court permits withdrawal.” Id. In this context,

       prejudice does not mean that the party who has obtained the admissions will

       lose the benefit of the admissions. Cross v. Cross, 891 N.E.2d 635, 640 (Ind. Ct.

       App. 2008). Instead, it means that the party has suffered a detriment in the

       preparation of his case, such as where the party who obtained the admissions is

       unable to produce key witnesses or present important evidence. City of Muncie

       v. Peters, 709 N.E.2d 50, 55 (Ind. Ct. App. 1999), trans. denied.


[9]    Our supreme court has specifically noted that the underlying purpose of Trial

       Rule 36(B) is to “avoid the binding effect of inadvertent admissions.” Gen.

       Motors Corp. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 889 (Ind. 1991).

       Moreover, this Court has emphasized that Trial Rule 36(B) focuses “on the

       policy of furthering a just and complete resolution of the merits.” Gary Mun.

       Airport Auth. Dist. v. Peters, 550 N.E.2d 828, 831 (Ind. Ct. App. 1990). Even if

       both conditions of Trial Rule 36(B) are satisfied, the trial court is not compelled

       to grant a request to withdraw admissions. Cross, 891 N.E.2d at 639. We will

       reverse the trial court’s decision only for an abuse of discretion. Id.


[10]   Here, in support of its motion to withdraw its admissions, Discover claimed

       that its failure to timely respond to Jocham’s request for admissions was

       inadvertent. Counsel for Discover explained that although an employee from

       their Indianapolis office evidently received and signed for the requests for

       admissions, for unknown reasons that employee failed to forward the

       propounded discovery to their Chicago office as is the general practice.

       Court of Appeals of Indiana | Memorandum Decision 30A01-1504-CC-150 | May 25, 2016   Page 7 of 11
       Counsel for Discover averred that he was wholly unaware of the requests for

       admissions until Jocham filed his motion for summary judgment. At that

       point, Discover requested leave to answer the request for admissions and

       subsequently moved for their withdrawal. Discover contended that its failure to

       respond to the requests was not purposeful but was inadvertently caused by a

       failure “in its communication process.” Appellant’s App. at 35. It was the trial

       court’s prerogative to assess the credibility of Discover’s explanations of

       inadvertence, and we will not second-guess these credibility assessments on

       appeal. See Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317, 322 (Ind. Ct. App.

       2006).


[11]   As to whether withdrawal of the admissions will subserve the presentation of

       the merits, we note that each request for admission tendered by Jocham

       involved the denial of the existence of a contract between the parties as well as a

       denial of all indebtedness owed by Jocham to Discover. The record indicates

       that nearly a year before those requests were tendered, Discover filed a motion

       for summary judgment supported by the designation of the parties’ credit card

       agreement and monthly billing statements evidencing such indebtedness. There

       is no question that Discover contests the core controverted issues, and

       withdrawal of the admissions will promote a just and complete resolution of

       them. Discover has met its burden to demonstrate that withdrawal of its

       inadvertent admissions would subserve the presentation of the merits.


[12]   Regarding prejudice, while we do not condone Discover’s failure to respond,

       Jocham has not shown that he has suffered a detriment in the preparation of his

       Court of Appeals of Indiana | Memorandum Decision 30A01-1504-CC-150 | May 25, 2016   Page 8 of 11
       case or that he will be unable to produce key witnesses or present important

       evidence if the admissions are withdrawn. He has only shown that he has lost

       the benefit of having the matters deemed admitted, which is not prejudice in

       this context. See Cross, 891 N.E.2d at 640. Jocham has failed to demonstrate

       that he will be prejudiced by the withdrawal of the admissions. Under the

       circumstances, we cannot say that the trial court abused its discretion in

       granting Discover’s motion to withdraw and we affirm that order.


              Section 2 – Withdrawal of the admissions renders the
                summary judgment extension of time issue moot.
[13]   Turning to the trial court’s order granting Discover additional time to respond

       to Jocham’s motion for summary judgment, Jocham maintains that, because

       Discover failed to designate evidence or otherwise properly respond to his

       motion for summary judgment within thirty days of its filing, the trial court was

       without authority to grant Discover additional time to file a response. See

       Regalado v. Estate of Regalado, 933 N.E.2d 512, 518 (Ind. Ct. App. 2010)

       (concluding that when a nonmoving party fails to respond to a motion for

       summary judgment “within thirty days by either filing a response, requesting a

       continuance under Trial Rule 56(I), or filing an affidavit under Trial Rule 56(F),

       the trial court cannot consider summary judgment filings of that party

       subsequent to the thirty-day period.”); see also Mitchell v. 10th & The Bypass, LLC,

       3 N.E.3d 967, 972 (Ind. 2014) (noting “bright line rule” that nonmoving party

       must respond or seek extension of time within thirty days from the date the

       moving party filed for summary judgment or trial court lacks discretion to

       Court of Appeals of Indiana | Memorandum Decision 30A01-1504-CC-150 | May 25, 2016   Page 9 of 11
       consider subsequent summary judgment filings of that party). However, we

       need not address the trial court’s authority to grant such an extension of time

       because the issue has been rendered moot.


[14]   An issue is moot when the principal questions in an issue have ceased to be

       matters of real controversy between the parties. Rainbow Cmty., Inc. v. Town of

       Burns Harbor, 880 N.E.2d 1254, 1260-61 (Ind. Ct. App. 2008). Because we have

       concluded that the trial court did not abuse its discretion in permitting Discover

       to withdraw its admissions, there remains essentially no designated evidence to

       support Jocham’s motion for summary judgment. Consequently, it would be

       futile at this point for Discover to respond to Jocham’s motion. It is well settled

       that the party moving for summary judgment bears the initial burden to

       demonstrate the absence of any genuine issue of material fact as to a

       determinative issue. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Only

       then does the burden shift to the nonmovant to present contrary evidence

       showing an issue for the trier of fact. Id. The mere lack of opposition to the

       motion does not result in an automatic summary judgment. Countrywide Home

       Loans, Inc. v. Holland, 993 N.E.2d 184, 189 (Ind. Ct. App. 2013). Without the

       admissions, Jocham has not met his burden to prove the absence of any genuine

       issue of material fact, and therefore the burden has not shifted to Discover to

       present contrary evidence. Accordingly, no response by Discover is necessary,

       and on remand, the trial court will be constrained to deny Jocham’s motion for

       summary judgment. Because the summary judgment extension of time issue

       has been rendered moot in light of the trial court’s order granting the motion to


       Court of Appeals of Indiana | Memorandum Decision 30A01-1504-CC-150 | May 25, 2016   Page 10 of 11
       withdraw admissions, we vacate the order granting Discover additional time to

       respond to summary judgment and remand for further proceedings consistent

       with this opinion.


[15]   Affirmed in part, vacated in part, and remanded.


       Najam, J., and Robb, J., concur.




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