                                                                                FILED
      OPINION ON REHEARING                                                 Jun 15 2018, 8:47 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
      Andrew L. Teel                                            Scott E. Shockley
      Daniel J. Skekloff                                        James R. Williams
      Sarah L. Schreiber                                        Christopher L. Bills
      Haller & Colvin, P.C.                                     Nicholas M. Tokar
      Fort Wayne, Indiana                                       Michael L. Wilhelm
                                                                Muncie, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      R. Kinsey Brooks, Susan K.                                June 15, 2018
      Brooks,                                                   Court of Appeals Case No.
      Appellants-Defendants,                                    01A05-1709-MF-2174
                                                                Appeal from the Adams Circuit
              v.                                                Court
                                                                The Honorable Chad E. Kukelhan,
      Bank of Geneva,                                           Judge
      Appellee-Plaintiff.                                       Trial Court Cause No.
                                                                01C01-1605-MF-16



      Barnes, Judge.


[1]   Bank of Geneva (“the Bank”) petitions for rehearing following our decision in

      Brooks v. Bank of Geneva, No. 01A05-1709-MF-2174 (Ind. Ct. App. Mar. 21,

      2018). We issue this opinion on rehearing but reaffirm our original decision in

      all respects.


      Court of Appeals of Indiana | Opinion on Rehearing 01A05-1709-MF-2174 | June 15, 2018         Page 1 of 3
[2]   The Bank contends that we should not have stated in the last sentence of the

      opinion, “The Brookses’ claim for abuse of process remains pending.” Id., slip

      op. at 13. The Bank asserts that the trial court granted summary judgment on

      this claim and that the Brookses made no argument on appeal regarding this

      claim. We have re-reviewed the record on appeal and the trial court’s summary

      judgment order. We first note that the Bank’s motion for partial summary

      judgment only sought a judgment of foreclosure and in rem damages against

      the Brookses; it was completely silent regarding the Brookses’ counterclaim for

      abuse of process.1 The trial court’s summary judgment order does contain some

      “findings” that appear to reject the abuse of process counterclaim, but there is

      no express judgment against the Brookses on the counterclaim. Rather, the

      judgment is purely a decree of foreclosure against the Brookses’ property.

      When summary judgment is only partially granted, “The court shall designate

      the issues or claims upon which it finds no genuine issue as to any material

      facts.” Ind. Trial Rule 56(C). It is not clear to us that the trial court’s summary

      judgment order fulfilled this requirement.


[3]   Moreover, the trial court stated in its order that “from the pleadings alone it is

      clear that Bank of Geneva is not pursuing any fraud claims against the Brooks

      and does not have an ulterior motive.” App. Vol. III p. 110. Our review of the

      Bank’s complaint indicates that, while it only made factual allegations against




      1
        It appears the Bank’s memorandum of law in support of partial summary judgment may have referenced
      the Brookses’ abuse of process counterclaim, but that memorandum is not in the record before us.

      Court of Appeals of Indiana | Opinion on Rehearing 01A05-1709-MF-2174 | June 15, 2018       Page 2 of 3
      the Summersetts on the fraud claims, it sought treble damages for fraud

      “against the Defendants” without distinguishing between the Brookses and the

      Summersetts. App. Vol. II p. 19. We believe the trial court’s view of the

      complaint is incorrect. Given the relief actually requested in the Bank’s motion

      for partial summary judgment and the language in the trial court’s partial

      summary judgment order, some of which was incorrect, we adhere to the

      statement in our original opinion that the abuse of process counterclaim is still

      pending.


[4]   We also briefly address the Bank’s contention that there is a material question

      of fact regarding the release of the Summersetts’ mortgage, noting there is a

      dispute as to whether the Summersetts actually paid off the loan that mortgage

      secured. For purposes of the Brookses’ status as sureties, whether the loan was

      paid off is irrelevant. It was the undisputed fact of releasing the Summersetts’

      mortgage that caused the release of the Brookses’ mortgage, not whether the

      underlying loan was actually paid off. The release exposed the Brookses and

      their property to much greater potential liability than they signed up for when

      they agreed to mortgage their land with the understanding that the Summersetts

      were mortgaging their land as well. As to the Bank’s rehearing argument

      regarding the change in payment terms of the Summersett note from monthly to

      semi-annually, we have nothing further to add to what we said in our original

      opinion.


      Najam, J., and Mathias, J., concur.


      Court of Appeals of Indiana | Opinion on Rehearing 01A05-1709-MF-2174 | June 15, 2018   Page 3 of 3
