                                                      Mar 25 2014, 9:53 am
FOR PUBLICATION


APPELLANT, PRO SE:                          ATTORNEYS FOR APPELLEE:

VICTOR HUGO MESA                            GREGORY F. ZOELLER
Plainfield, Indiana                         Attorney General of Indiana

                                            KYLE HUNTER
                                            Deputy Attorney General
                                            Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

VICTOR HUGO MESA,                           )
                                            )
     Appellant-Defendant,                   )
                                            )
              vs.                           )      No. 36A01-1308-MI-362
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                    APPEAL FROM THE JACKSON CIRCUIT COURT
                        The Honorable William E. Vance, Judge
                            Cause No. 36C01-1111-MI-38


                                  March 25, 2014

                            OPINION – FOR PUBLICATION

PYLE, Judge
                             STATEMENT OF THE CASE

       Victor Hugo Mesa (“Mesa”), pro se, appeals the trial court’s order granting

summary judgment to the State of Indiana, the Office of the Jackson County Prosecuting

Attorney, and the Seymour Police Department (collectively, “the State”) on the State’s

complaint for forfeiture, which alleged that Mesa’s vehicle was purchased with proceeds

from cocaine dealing.

       We affirm.

                                          ISSUE

       Whether the trial court erred by ordering forfeiture of Mesa’s vehicle
       pursuant to a summary judgment motion and without a hearing.

                                         FACTS

       On November 7, 2011, the State filed a complaint for forfeiture, pursuant to

Indiana Code chapter 34-24-1, against Mesa, seeking forfeiture of his 2004 yellow

Hummer (“the vehicle”) based on the allegation that the vehicle was “traceable as

proceeds of the violation of a criminal statute” and was “property that [was] the object of

a corrupt business influence violation.” (App. 61). Thirty days later, Mesa, by counsel,

filed an answer and denied the State’s allegations.

       On January 23, 2012, the State filed a motion for default judgment, claiming that

more than twenty days had passed since Mesa had been served with the complaint and

alleging that Mesa had “failed to plead or otherwise comply with the Indiana Rule[s] of

Trial Procedure.” (App. 44, 46). The State attached affidavits and exhibits to its motion

for default judgment to support its argument that it was entitled to forfeiture of the


                                             2
vehicle. On February 8, 2012, the trial court denied the State’s default judgment motion,

specifically noting that Mesa had filed an answer on December 7, 2011.

       On March 20, 2013—after more than a year had passed with no activity in the

case—the trial court, on its own motion, ordered the State, pursuant to Trial Rule 41(E),

to show cause within thirty days why the State’s case should not be dismissed for lack of

prosecution. Specifically, the trial court instructed the State to file its response in writing

and warned that the State’s failure to respond within thirty days would result in dismissal

of its case.

       On April 18, 2013, the State responded to the trial court’s order by filing a motion

for summary judgment. In its motion, the State argued that there were no genuine issues

of material fact and that it was entitled to forfeiture of the vehicle. In support of its

motion, the State designated, among other things, the affidavits and exhibits attached to

its motion for default judgment. One of the affidavits was from a confidential informant,

Evelyn Contreras Perez (“Perez”), who averred that “[w]hile [she] was buying cocaine

from Mesa, he told [her] that he sells six to seven ounces of cocaine each week, and that

he paid for his Yellow Hummer with money from doing business, which [she] understood

in the context of [their] conversation as selling cocaine.” (App. 53). In her affidavit,

Perez also stated that Mesa asked her “to invest in buying a kilo of cocaine with him, and

he told [her] that he would put up his title as collateral for his half of the kilo of cocaine.”

(App. 53). Another affidavit, from Seymour Police Officer Carl Lamb (“Officer Lamb”),

asserted that the officer was familiar with Mesa through personal contact and drug

investigations and that he had been informed that Mesa had been dealing cocaine for five

                                               3
to six years. (App. 52). Officer Lamb’s affidavit also provided that Mesa had “paid in

full a loan” on the vehicle in October 2010 and that the title to the vehicle showed that

Mesa owned the vehicle. (App. 52).

       Thereafter, on May 6, 2013, Mesa filed a pro se response to the State’s summary

judgment motion. In his motion, Mesa requested the trial court to dismiss the forfeiture

proceedings under Trial Rule 41(E) because “the State took no action in this case for

more than 390 days” and because the State “did not explain the reason for said lack of

prosecution even after [it had] been ordered to do so by this Court[.]” (App. 31). Mesa

stated that the “only allegation which could entitle [the State] to prevail in these forfeiture

proceedings” was Perez’s affidavit. (App. 31). In his response, Mesa challenged the

impartiality of Perez and the interpretation the “doing business” statements in her

affidavit. Mesa did not designate any evidence to show that there was a genuine issue of

material fact precluding the entry of summary judgment. Mesa requested “an evidentiary

hearing pursuant to Ind. Code § 34-24-1-4” and that the trial court make findings of fact

and conclusions of law pursuant to Trial Rule 52. (App. 34).

       On June 10, 2013, the trial court entered an order granting the State’s summary

judgment motion without Mesa’s requested hearing.            The trial court found that the

“designated evidentiary matter show[ed] that there [was] no genuine issue as to any

material fact” and that the State was “entitled to judgment as a matter of law.” (App. 27).

Thus, the trial court ordered that Mesa’s ownership interest in the vehicle was forfeited.

       On June 24, 2013, Mesa, pro se, filed a motion to correct error, a motion to

proceed in forma pauperis, and a motion to stay disposition of property. In his motion to

                                              4
correct error, Mesa argued that: (1) the trial court’s Trial Rule 52 findings were

inadequate because they did not provide an explanation for granting summary judgment

in favor of the State; (2) the trial court erred by failing to hold a hearing addressing

dismissal of the State’s case under Trial Rule 41(E); (3) the trial court erred by failing to

hold a hearing, pursuant to Indiana Code § 34-24-1-4, prior to ordering forfeiture of the

vehicle; (4) the trial court erred by granting summary judgment because Mesa had

showed that material facts were in dispute and because the State did not designate any

evidence to support the averments in Perez’s affidavit; (5) summary judgment was

generally not appropriate in a forfeiture proceeding.

       On July 3, 2013, the trial court granted Mesa’s motion to proceed in forma

pauperis. The trial court did not rule on Mesa’s motion to correct error; thus, it was

deemed denied. Mesa now appeals.

                                        DECISION

       Mesa appeals the trial court’s grant of summary judgment to the State in this

forfeiture action.

       Before turning to our standard of review, we note that “[c]ivil forfeiture is a

device, a legal fiction, authorizing legal action against inanimate objects for participation

in alleged criminal activity, regardless of whether the property owner is proven guilty of

a crime—or even charged with a crime.” Serrano v. State, 946 N.E.2d 1139, 1140 (Ind.

2011). “To obtain the right to dispose of property, use the property, or recover law

enforcement costs the State must demonstrate by a preponderance of the evidence that the

property was subject to seizure.” Id. at 1142-43 (citing Ind. Code § 34–24–1–4(a)).

                                             5
      When reviewing a trial court’s order granting summary judgment, we apply the

same standard as that used in the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930

(Ind. 2008). Summary judgment is appropriate only where the designated evidence

shows “that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). The moving party “bears

the initial burden of making a prima facie showing that there are no genuine issues of

material fact and that it is entitled to judgment as a matter of law.” Gill v. Evansville

Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). If the moving party meets this

burden, then the non-moving party must designate evidence demonstrating a genuine

issue of material fact. Id. “[A]n adverse party may not rest upon the mere allegations or

denials of his pleading, but his response, by affidavits or as otherwise provided in this

rule, must set forth specific facts showing that there is a genuine issue for trial.” Ind.

Trial Rule 56(E).    A trial court’s grant of summary judgment is “‘clothed with a

presumption of validity,’” and an appellant has the burden of demonstrating that the grant

of summary judgment was erroneous. Williams v. Tharp, 914 N.E.2d 756, 762 (Ind.

2009) (quoting Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993)).

      Mesa raises a variety of procedural arguments in relation to the trial court’s entry

of its order granting summary judgment to the State. Specifically, Mesa argues that: (1)

the trial court failed to make special findings of fact and conclusions of law pursuant to

Trial Rule 52; (2) the trial court was required, pursuant to Trial Rule 41(E), to hold a

hearing for the purpose of dismissing this case; and (3) a forfeiture judgment cannot be

entered pursuant to a Trial Rule 56 summary judgment motion. Mesa then makes a

                                            6
substantive argument, contending that—even if summary judgment is permissible in a

forfeiture action—it was erroneously entered in this case because there were material

facts at issue.

1. Trial Rule 52

       Turning to Mesa’s argument that the court erred by not entering specific findings

and conclusions pursuant to his request for special findings under Trial Rule 52(A), we

note that Trial Rule 52(A) provides that “[f]indings of fact are unnecessary on decisions

of motions Rules 12 or 56[.]” Also, Trial Rule 52 “applies where issues are ‘tried upon

the facts without a jury’” and not where a trial court enters summary judgment based

upon designated evidence. Knowledge A-Z, Inc. v. Sentry Ins., 891 N.E.2d 581, 585 (Ind.

Ct. App. 2008) (quoting T.R. 52(A)), trans. denied. Here—where the trial court entered

summary judgment under Trial Rule 56 based on the designated evidence—specific

findings and conclusions were not necessary. See id.; see also Highland Springs South

Homeowners Ass’n, Inc. v. Reinstatler, 907 N.E.2d 1067, 1072 n.3 (Ind. Ct. App. 2009),

trans. denied; Charles T. Hyte Cmty. Ctr. Ass’n of Terre Haute, Inc. v. City of Terre

Haute Park Bd., 883 N.E.2d 1183, 1188 (Ind. Ct. App. 2008), trans. denied.

Accordingly, the trial court did not err in regard to its order.

2. Trial Rule 41(E)

       Mesa also argues that the trial court erred by not holding a hearing pursuant to

Trial Rule 41(E). This argument is also without merit. Trial Rule 41(E) provides:

       (E) Failure to prosecute civil actions or comply with rules. Whenever
       there has been a failure to comply with these rules or when no action has
       been taken in a civil case for a period of sixty [60] days, the court, on

                                               7
        motion of a party or on its own motion shall order a hearing for the
        purpose of dismissing such case. The court shall enter an order of dismissal
        at plaintiff’s costs if the plaintiff shall not show sufficient cause at or before
        such hearing. Dismissal may be withheld or reinstatement of dismissal may
        be made subject to the condition that the plaintiff comply with these rules
        and diligently prosecute the action and upon such terms that the court in its
        discretion determines to be necessary to assure such diligent prosecution.

(Emphasis added).

        Here, after the trial court ordered the State to show cause why its case should not

be dismissed for lack of prosecution, the State responded to that order by filing a motion

for summary judgment. The trial court then entered final judgment in the case by

granting summary judgment to the State.1

        Trial Rule 41(E) makes clear that the trial court is required to hold a hearing if it

dismisses a case pursuant to Trial Rule 41(E). Here, however, the trial court did not

dismiss this forfeiture case pursuant to Trial Rule 41(E). Because the trial court entered

final judgment by granting summary judgment, we conclude the trial court did not err by

not holding a hearing pursuant to Trial Rule 41(E).

3. Trial Rule 56




1
  The record before us indicates that the State responded to the trial court’s show cause order with its
summary judgment motion only and not with a specific response addressing its lack or delay of
prosecution. The trial court’s decision to withhold dismissal upon the State’s filing of its summary
judgment motion was within the trial court’s discretion. See Ind. Trial Rule 41(E) (explaining that
“[d]ismissal may be withheld . . . subject to the condition that the plaintiff comply with these rules and
diligently prosecute the action and upon such terms that the court in its discretion determines to be
necessary to assure such diligent prosecution”); Deutsche Bank Nat. Trust Co. v. Harris, 985 N.E.2d 804,
813 (Ind. Ct. App. 2013) (explaining that “[t]he purpose of Trial Rule 41(E) is ‘to ensure that plaintiffs
will diligently pursue their claims’ and to provide ‘an enforcement mechanism whereby a defendant, or
the court, can force a recalcitrant plaintiff to push his case to resolution’”) (quoting Belcaster v. Miller,
785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied).

                                                     8
       Next, we address Mesa’s argument that a forfeiture judgment cannot be entered

pursuant to a Trial Rule 56 summary judgment motion without a hearing. Mesa contends

that the forfeiture statutes do not allow a forfeiture judgment to be entered pursuant to

summary judgment and that the forfeiture statutes require the trial court to hold a hearing

before it can order disposition or forfeiture of any property subject to seizure.

Specifically, Mesa points to Indiana Code § 34-24-1-4,2 which provides:

       At the hearing, the prosecuting attorney must show by a preponderance of
       the evidence that the property was within the definition of property subject
       to seizure under section 1 of this chapter. If the property seized was a
       vehicle, the prosecuting attorney must also show by a preponderance of the
       evidence that a person who has an ownership interest of record in the
       bureau of motor vehicles knew or had reason to know that the vehicle was
       being used in the commission of the offense.

Ind. Code § 34-24-1-4(a). Mesa focuses on the “at the hearing” language of this statute

and argues that this language precluded forfeiture pursuant to a summary judgment

motion and required the trial court to hold a hearing wherein the State could meet its

burden of proof. Mesa contends the trial court’s failure to hold a hearing relieved the

State of its obligation of meeting its burden of proof in the forfeiture proceeding.

       The interpretation of a statute is a question of law reserved for the courts. Reemer

v. State, 835 N.E.2d 1005, 1010 (Ind. 2005); One 1968 Buick, 4 Door v. State, 638

N.E.2d 1313, 1316 (Ind. Ct. App. 1994). “Words and phrases in a single section are

construed together with the other parts of the same section and with the statute as a

whole, in order that the spirit and purpose of the statute is carried out.” Dreiling v.

Custom Builders, 756 N.E.2d 1087, 1089 (Ind. Ct. App. 2001).
2
 Mesa cited to Indiana Code § 34-24-1-3 but discussed the text of Indiana Code § 34-24-1-4. Therefore,
we presume he intended to cite to Indiana Code § 34-24-1-4.
                                                  9
       Although Indiana Code § 34-24-1-4(a) references a “hearing,” the main focus of

subsection (a) is the explanation of the State’s burden of proof in a forfeiture action.

Indeed, our Indiana Supreme Court has discussed the relevance of this statutory provision

and explained its language makes “evident” the “Legislature’s intent to apply the civil

burden of proof in forfeiture proceedings[.]” Katner v. State, 655 N.E.2d 345, 348 (Ind.

1995) (discussing the prior version of Indiana Code § 34-24-1-4(a)). Additionally, our

Court has explained that this “seizure of property statute provides the State with a quick

procedure which is both broad in scope and profitable to the State” and that this statute

specifies that “the State needs only to prove its case by a preponderance of the evidence.”

One 1968 Buick, 4 Door, 638 N.E.2d at 1317 (discussing the prior version of Indiana

Code § 34-24-1-4(a)).

       Furthermore, when looking to other sections of the forfeiture statute, it is clear the

Indiana Trial Rules, which include the applicability of summary judgment, apply to a

forfeiture proceeding.    Indeed, Indiana Code § 34-24-1-3 specifically refers to the

applicability of the Indiana Trial Rules in a forfeiture action. More precisely, under

Indiana Code § 34-24-1-3, a prosecuting attorney must file a complaint to commence a

forfeiture action and “serve, under the Indiana Rules of Trial Procedure, a copy of the

complaint upon each person whose right, tittle, or interest is of record” in the property

sought to be seized. I.C. § 34-24-1-3(b). Moreover, Indiana Trial Rule 1 provides:

       Except as otherwise provided, these rules govern the procedure and practice
       in all courts of the state of Indiana in all suits of a civil nature whether
       cognizable as cases at law, in equity, or of statutory origin. They shall be
       construed to secure the just, speedy and inexpensive determination of every
       action.

                                             10
(Emphasis added). Forfeiture actions are “properly classified as civil in nature.” Katner,

655 N.E.2d at 347. Therefore, forfeiture actions are governed by the Indiana Trial Rules,

including the applicability of summary judgment under Trial Rule 56.

       Having found that the Indiana Trial Rules apply to forfeiture proceedings, a

question still remains as to whether a hearing pursuant to Trial Rule 56 was required

before summary judgment was entered. On April 18, 2013, the State filed and supported

its motion for summary judgment by designating certain evidence. Trial Rule 56 required

Mesa to respond within thirty days by “(1) filing affidavits showing issues of material

fact, (2) filing an affidavit showing why the facts necessary to justify his opposition are

unavailable, or (3) requesting an extension of time in which to file his response.” Boczar

v. Reuben, 742 N.E.2d 1010 (Ind. Ct. App. 2001), reh’g denied. Mesa is not permitted to

“rest upon the mere allegations or denials of his pleading.” T.R. 56(E). When the

nonmoving party (Mesa) fails to respond or designate evidence within thirty days, and the

moving party (the State) has shown that it is entitled to summary judgment, the trial court

is obligated to enter summary judgment against the nonmoving party (Mesa), with or

without a hearing. T.R. 56(C) (“The trial court may conduct a hearing on the motion.”)

(emphasis added).

       However, a trial 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, . . . .” T.R. 56(C). Further, that hearing must be held “not less than ten (10) days

after the time for filing the response.” T.R. 56(C). Prejudice is presumed when a trial


                                            11
court fails to follow the mandates within Trial Rule 56 regarding the scheduling of a time

for a hearing. Otte v. Tessman, 426 N.E.2d 660, 661 (Ind. 1981). We note that since our

Supreme Court issued its opinion in Otte, Trial Rule 56 was amended by adding section

(I), which states, “For cause found, the Court may alter any time limit set forth in this rule

upon motion made within the applicable time limit.” (emphasis added). However, neither

party requested an extension. As a result, the words of Judge Staton, adopted by our

Supreme Court, continue to ring true:

       If the failure to obey the clear explicit dictates of the Indiana Rules of
       [Trial] Procedure can be simply dismissed as harmless error, then, the
       erosion of an orderly judicial system has begun. If the clear, explicit
       meaning of the Indiana Rules of [Trial] Procedure can be re-written by
       judicial opinion to avoid the consequence of violation, then, the shroud of
       confusion will prevent any meaningful, just and predictable solution to
       those disputes which must be resolved in our courts.

Otte, 426 N.E.2d at 662.

       In this case, Mesa timely filed a response to the State’s motion for summary

judgment. However, Mesa requested an “evidentiary hearing pursuant to Ind. Code § 34-

24-1-4 . . . .” (App. 34) (emphasis added). It is well settled that a summary judgment

hearing is not a trial. American State Ins. Co. v. State ex rel. Jennings, 152 Ind. App.

422, 429, 284 N.E.2d 873, 877 (Ind. Ct. App. 1972). “Our decisions construing [Trial

Rule 56] and its predecessor statute make it clear that the purpose of the summary

judgment provision is not to evade jury trials or have the judge weigh the evidence to

determine where the [preponderance of the evidence] lies in advance of its being

presented.” Letson v. Lowmaster, 168 Ind. App. 159, 161, 341 N.E.2d 785, 787 (Ind. Ct.

App. 1976).    Summary judgment terminates those cases where there are no factual

                                             12
disputes and judgment can be determined as a matter of law; it also eliminates undue

burdens upon the litigants and exposes spurious cases. Jones v. City of Logansport, 436

N.E.2d 1138, 1143 (Ind. Ct. App. 1982), reh’g denied. It is clear from the record that

Mesa was not requesting a summary judgment hearing, but a trial on the merits regarding

the forfeiture complaint that had been filed by the State. Because Mesa did not request a

summary judgment hearing as contemplated by Trial Rule 56, the trial court did not err

by granting summary judgment for the State without a hearing.

       Mesa also argues that summary judgment is not permissible in a forfeiture action

because he “has not found a single case where this Court or the Indiana Supreme Court

[has] upheld the grant of summary judgment in favor of the State in a forfeiture case.”

(Mesa’s Br. 6).

       The State cites to Sargent v. State, 985 N.E.2d 1108 (Ind. Ct. App. 2013), reh’g

denied, trans. granted, as an example of a forfeiture case decided pursuant to a summary

judgment motion and affirmed on appeal. We note, however, that our Indiana Supreme

Court granted transfer in Sargent on December 6, 2013. The Indiana Supreme Court has

not issued an opinion in Sargent, which is set for oral argument on March 20, 2014.

       Nevertheless, aside from Sargent, there are other cases in which a judgment was

entered in a forfeiture action pursuant to a summary judgment motion, and these cases

make no mention of summary judgment being impermissible in a forfeiture action. See

Curtis v. State, 981 N.E.2d 625 (Ind. Ct. App. 2013) (indicating in the facts that the trial

court granted the State’s summary judgment in a forfeiture proceeding), aff’d on reh’g,

987 N.E.2d 523 (Ind. Ct. App. 2013); Ivy v. State, 847 N.E.2d 963 (Ind. Ct. App. 2006)

                                            13
(reversing the grant of summary judgment in a forfeiture action based on the State’s

failure to meet its burden on summary judgment and not on the premise that summary

judgment was impermissible in a forfeiture action).

        In his reply brief, Mesa “concedes that a few rare cases of forfeiture may be

decided by summary judgment when no material facts in dispute exist and only questions

of law remain.” (Mesa’s Reply Br. 3). Thus, Mesa’s argument that summary judgment

in a forfeiture action is impermissible based on the lack of appellate cases discussing

forfeiture in a summary judgment context is without merit.

        Lastly, Mesa contends that, even if summary judgment is permissible in forfeiture

cases, the trial court’s grant of summary judgment to the State was erroneous. Mesa

argues that the trial court erred by granting summary judgment because there were

material facts in dispute regarding whether the vehicle was seizable under Indiana Code §

34-24-1-1.3

        To support a claim for forfeiture of a vehicle, the State must show by a

preponderance of the evidence that: (1) the vehicle was within the definition of property



3
  In his appellate brief, Mesa also contends that there were questions of fact regarding whether there was a
“nexus between Mesa’s vehicle and an enumerated offense under Ind. Code § 34-4-30.1-1.” (Mesa’s Br.
6). However, Indiana Code § 34-4-30.1-1 was repealed in 1998 and replaced by Indiana Code § 34-24-1-
1. See $100 v. State, 822 N.E.2d 1001, 1009 (Ind. Ct. App. 2005), trans. denied. Furthermore, our
Indiana Supreme Court explained that the requirement that the State show a “nexus” or show “that the
property sought in forfeiture was used ‘for the purpose of committing, attempting to commit, or
conspiring to commit” an enumerated offense under [the prior version of Ind. Code § 34-24-1-1]” applied
specifically to the State’s attempt to forfeit a vehicle under the prior version of Indiana Code § 34-24-1-
1(a)(1)(a). Katner, 655 N.E.2d at 349 (explaining that the nexus requirement applied to “the portion of
our [forfeiture] statute which we examine today”). But see Curtis, 987 N.E.2d at 524 (recognizing that
the Katner nexus requirement applied to Indiana Code § 34-24-1-1(a)(1)(A) and extending the nexus
analysis to Indiana Code § 34-24-1-1(a)(1)(B), the forfeiture provision regarding stolen or converted
property).

                                                    14
subject to seizure under Indiana Code § 34–24–1–1; and (2) a person who has an

ownership interest of record in the bureau of motor vehicles knew or had reason to know

that the vehicle was being used in the commission of the offense. Curtis, 987 N.E.2d at

524 (citing I.C. § 34–24–1–4(a)).4

        Here, the State alleged in its forfeiture complaint that Mesa’s vehicle was subject

to seizure under Indiana Code §§ 34–24–1–1(a)(3) and (a)(8), which provide that “[a]ny

portion of real or personal property purchased with money that is traceable as a proceed

of a violation of a criminal statute” or “[p]roperty (as defined by IC 35-31.5-2-253) . . .

that is the object of a corrupt business influence violation (IC 35-45-6-2)” may be seized

in a forfeiture proceeding. I.C. §§ 34-24-1-1(a)(3), (a)(8).5

        As part of its designated evidence, the State included an affidavit from a

confidential informant, Perez, who swore that “[w]hile [she] was buying cocaine from

Mesa, he told [her] that he s[old] six to seven ounces of cocaine each week, and that he

paid for his Yellow Hummer with money from doing business, which [she] understood in

the context of [their] conversation as selling cocaine.”                (App. 53).      The State also

designated an affidavit from Officer Lamb to confirm that Mesa’s title showed that he




4
  Mesa does not dispute that he had an ownership interest in the vehicle and knew or had reason to know
that the vehicle was being used in the commission of an offense.
5
  A person commits corrupt business influence if he “knowingly or intentionally received any proceeds
directly or indirectly derived from a pattern of racketeering activity, and who uses or invests those
proceeds or the proceeds derived from them to acquire an interest in property . . . .” I.C. § 35-45-6-2(1).
A “Racketeering activity” means “to commit, to attempt to commit, to conspire to commit a violation of,
or aiding and abetting in a violation of” dealing in cocaine. I.C. § 35-45-6-1(e)(28).

                                                    15
owned the vehicle. Thus, the State designated evidence to show that the vehicle was

subject to seizure under Indiana Code § 34–24–1–1(a)(3).6

       Mesa does not dispute that Perez’s affidavit contains statements showing that

vehicle was seizable under Indiana Code § 34-24-1-1.                  Instead, he challenges the

credibility of Perez’s affidavit and contends that the statements needed to be supported by

additional evidence. However, once the State met its burden on summary judgment, the

burden shifted to Mesa to show that there was a genuine issue of material fact. Mesa

filed a response to the State’s summary judgment motion, but he did not file any

affidavits or otherwise designate any evidence to show that there were genuine issues of

material fact. Indeed, he did not deny that he made such a statement to Perez. Instead, he

merely questioned the impartiality of Perez and the interpretation the “doing business”

statements in her affidavit. However, “an adverse party may not rest upon the mere

allegations or denials of his pleading, but his response, by affidavits or as otherwise

provided in this rule, must set forth specific facts showing that there is a genuine issue for

trial.” Ind. Trial Rule 56(E) (emphasis added).              Furthermore, if the nonmovant or

adverse party “does not so respond, summary judgment, if appropriate, shall be entered

against him.” Id. See also Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 676 (Ind.

Ct. App. 2007) (“If the nonmovant fails to meet his burden, and the law is with the

movant, summary judgment should be granted.”), trans. denied.

       Because Mesa did not (1) properly request a summary judgment hearing, or (2)

designate any evidence to show that there was a genuine issue of material fact regarding
6
 Because the State’s designated evidence showed that the vehicle was seizable under Indiana Code § 34–
24–1–1(a)(3), we need not review whether it was seizable under Indiana Code § 34–24–1–1(a)(8).
                                                 16
whether the vehicle was seizable under Indiana Code § 34–24–1–1(a)(3), the trial court

did not err by granting summary judgment to the State.

      Affirmed.

MATHIAS, J., concurs with opinion.

BRADFORD, J., concurs.




                                           17
                             IN THE
                   COURT OF APPEALS OF INDIANA

VICTOR HUGO MESA,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
          vs.                                     )    No. 36A01-1308-MI-362
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )



MATHIAS, Judge concurring


       I concur with the majority’s conclusion that Mesa was not entitled to a hearing in

the State’s forfeiture action, but I write separately to emphasize that Mesa’s complete

failure to designate any evidence to contradict that designated by the State in its motion

for summary judgment negated any reason for a hearing.

       Mesa claims that the trial court was required to hold an evidentiary hearing

pursuant to Indiana Code section 34-24-1-4. But it is well established that a forfeiture

proceeding is a civil action, see Katner v. State, 655 N.E.2d 345, 347 (Ind. 1995) (citing

Caudill v. State, 613 N.E.2d 433, 437 (Ind. Ct. App. 1993)), and is therefore governed by

the Indiana Trial Rules. See Ind. Trial Rule 1.

       Thus, when the State filed a motion for summary judgment with supporting

affidavits pursuant to Trial Rule 56, it was incumbent upon Mesa to respond to this

motion with opposing affidavits or other designated evidence within the time allotted by

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rule or risk summary judgment being granted in favor of the State if the State’s

designated evidence revealed that it was entitled to judgment as a matter of law. See

Murphy v. Curtis, 930 N.E.2d 1228, 1233-34 (Ind. Ct. App. 2010), trans. denied. But

Mesa did not do this.

       Instead, he simply filed a responsive argument with the trial court attacking the

credibility of the State’s affiants and claiming a right to an evidentiary hearing under the

forfeiture statutes.    However, Mesa is not entitled to an evidentiary hearing in

proceedings on a motion for summary judgment. Under Trial Rule 56, a party may

request a hearing that considers whether the evidence designated by the parties causes a

genuine issue of material fact to remain, but a party may not simply argue the credibility

of an opposing affiant. See F.W. Means & Co. v. Carstens, 428 N.E.2d 251, 258 (Ind. Ct.

App. 1981) (noting that summary judgment hearing is not a trial); see also Bushong v.

Williamson, 790 N.E.2d 467, 474 (Ind. 2003) (“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.”).

       Here, the State’s designated evidence was sufficient to establish prima facie that

the State was entitled to judgment as a matter of law. When Mesa failed to designate any

evidence at all contrary to the State’s designated evidence, there were no conflicting

interpretations of factual issues remaining to be considered at a hearing. Simply said,

there was no reason that a hearing was required; when Mesa designated no evidence to

dispute that designated by the State, his timely written response that questioned the

credibility of the State’s affiant was all that he was entitled to. See Boczar v. Reuben,

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742 N.E.2d 1010, 1018 (Ind. Ct. App. 2001) (holding that party was not entitled to

separate summary judgment hearing on issue on which it failed to designate any

evidence).

      Moreover, even if Mesa were correct that the forfeiture statute required an

evidentiary hearing, this would be in conflict with the summary judgment procedures set

forth in Trial Rule 56. And it is well settled that, if a statute conflicts with the Trial

Rules, the Trial Rules take precedence. Bowyer v. Ind. Dep.t of Natural Res., 798 N.E.2d

912, 916 (Ind. Ct. App. 2003).

      Accordingly, I concur with the majority that Mesa was not entitled to an

evidentiary hearing.




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