Holly and Christopoher Dunn, Holly and Benjamin Rothenbush, and Tomi and Michael Meyer v. Kathryn Davis and For the Children Medical Mission Foundation, Inc.

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
May 29 2014, 10:15 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

DAVID VAN GILDER ROBERT J. PALMER
Van Gilder & Trzynka, P.C. May * Oberfell * Lorber
Fort Wayne, Indiana Mishawaka, Indiana

IN THE
COURT OF APPEALS OF INDIANA

HOLLY and CHRISTOPHER DUNN, )
HOLLY and BENJAMIN ROTHENBUSH, and )
TOMI and MICHAEL MEYER, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 02A03-1307-PL-269
)
KATHRYN DAVIS and FOR THE CHILDREN )
MEDICAL MISSION FOUNDATION, INC., )
)
Appellees-Defendants. )

APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Robert C. Probst, Senior Judge
Cause No. 02D01-1104-PL-142

May 29, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
 Case Summary

Christopher and Holly Dunn (“the Dunns”), Benjamin and Holly Rothenbush (“the

Rothenbushes”), and Michael and Tomi Meyer (“the Meyers”) (collectively,

“Appellants”) appeal the trial court’s grant of summary judgment to For the Children

Medical Mission Foundation, Inc., (“the Foundation”). We affirm.

Issues

Appellants raise two issues, which we restate as:

I. whether the trial court properly granted summary
judgment to the Foundation on Appellants’ breach of
contract claim; and

II. whether the trial court properly granted summary
judgment to the Foundation on Appellants’ fraud
claim.

Additionally, the Foundation argues that it is entitled to appellate attorney fees pursuant

to Indiana Appellate Rule 66(E).

Facts

The Foundation is a tax exempt organization that helped provide international

orphans with medical care and matched them with host families in the United States. The

host families had the option to adopt the children through a licensed adoption agency.

Kathryn Davis is the executive director of the Foundation. The Dunns, the

Rothenbushes, and the Meyers each agreed to host a child from the Philippines through

the Foundation. Each family signed a Host Family Agreement that provided:

In recognition of the fact that Kathryn and Gary Davis,
of For the Children International Medical Mission
Foundation, Inc. . . . are the legal guardians of the child

2
placed with us for us to act as host parents during the child’s
medical treatment, and acknowledging that Kathryn and Gary
Davis and the Foundation are legally responsible for the child
during the treatment, including compliance with all rules and
regulations of government agencies and departments in both
the United States and the child’s home country, we, the
undersigned, acting as host parents, agree as follows:

*****

3. The host parents agree that on the 30th day after the
child is placed with the host parents, if the host parents
intend to apply for formal adoption, the host parents
will provide the Foundation [sic] indicating an
unqualified intent to adopt. The host parents agree that
if it is their intent to adopt, they will use the services of
a licensed adoption agency.

The host parents acknowledge that at no time are they
required to apply for formal adoption of the child. In
the event that the host parents choose not to adopt, or
fail to provide the intent to adopt letter to the
Foundation on the thirtieth day after the child is placed
with the host parents, the host parents, at the discretion
of the Foundation, may or may not continue to host the
child for the duration of any needed medical treatment,
after which the child will be placed with another
family for a possible adoption or returned to the
Philippines.

4. In the event that the host parents choose to apply for
adoption, they agree to have all necessary documents
returned to the adoption agency of their choice within
five months of submitting their letter of intent to adopt.
These documents include, but are not limited to, all
documents required by the Filipino government. The
host parents further agree to comply with any other
time restrictions for submission of all necessary
documents that may be imposed by their chosen
adoption agency.

*****

3
6. The host parents acknowledge that all adoption
procedures and fees are in no way affiliated with, or
determined by the Foundation, which is a completely
separate and distinct entity from any adoption agency.
The host parents also acknowledge that at no time does
the Foundation, or anyone associated therewith, have
any influence on the host child’s governmental or
agency requirements or errors. Any questions or
comments regarding the host parents’ relationship with
the adoption agency must be directed towards the
agency, not the Foundation, unless it is directly related
to the child’s medical condition.

*****

8. The host parents acknowledge that the Foundation, and
Gary and Kathryn Davis, are the guardians of the child
while in the United States and will hold the child’s
passport until the child returns to the Philippines. . . .

9. The host parents agree that upon admission of the child
to the hospital, if the letter of intent to adopt has not
yet been written, that the Foundation’s name, For the
Children International shall be listed as the guarantor
for said child. If intent to adopt letter has been
submitted, the host parents agree to list their names as
guarantor of child.

*****

11. The host parents acknowledge that at no time does the
Foundation reimburse the host parents for insurance
co-pay or any other expenses related to the child’s
medical treatment, or any other expenses related to the
child, if letter of intent to adopt has been submitted.

*****

13. The host parents agree, in the event that they submit
notice of their intent to adopt, to pay a fee to the
Foundation of $1,800.00 due and payable with notice
of intent to adopt on or before the thirtieth day from
the child’s arrival. The host parents further agree to

4
 pay [to] the Foundation a fee of $750.00 in the event
that the child remains in the United States as a medical
mission child for twelve months after the initial arrival,
unless travel would be life threatening to the child.

Appellee’s App. pp. 163-65, 227-29, 320-23.

Each of the host families also signed a Fee Acceptance and Disclaimer Form,

which provided:

It is understood that the fee schedule of For the Children
International is a requirement. At no time during the hosting
of a medical mission child, will the fees increase.

These fees are subject to change for future medical mission
children without notice.

The fees of the adoption agency (if applicable) that the host
family chooses are in no way affiliated with For the Children
and it is hereby noted that the foundation fees and operations
are a completely separate entity and the foundation takes no
responsibility for fee increases by separate agencies.

Id. at 171, 226, 319. Each family was provided with a fee schedule discussing the

Foundation’s fees. Appellants allege that Kathryn represented to them “that using her

agency would result in being matched with a child ‘sooner’ and at a ‘lower cost’ than a

regular international adoption service.” Appellants’ App. pp. 81, 110, 139.

Catholic Charities was an adoption agency and was one of the options available to

Appellants to complete an adoption. According to Appellants, Kathryn also provided

each family with a document prepared by Catholic Charities that listed the adoption costs.

The estimated costs ranged, depending on the date the families were provided with the

documents, from $11,800 to $14,280, excluding homestudy and post-placement fees.

5
 The Meyers signed the Host Family Agreement and the Fee Acceptance and

Disclaimer Form in January 2006. They were matched with a child less than two weeks

later, and the child was placed in their home in August 2006. The Dunns signed the Host

Family Agreement in September 2006, and they were matched with a child the same

month. The child was placed in their home in May 2007. The Rothenbushes executed

the Host Family Agreement and the Fee Acceptance and Disclaimer Form in December

2006, and they were matched with a child in January 2007. The child was placed in their

home in May 2007.

Each of the families indicated their desire to adopt the children and chose to use

Catholic Charities to complete the adoptions. At some point after the children were

placed with the host families, the host families allege that Kathryn provided them with

revised fee schedules for the Catholic Charities adoption costs ranging from $17,200 to

$19,880. Ultimately, each family paid over $30,000 to complete the adoptions, which

were completed in late 2010. Appellants allege that Kathryn “induced” them “not to call

Catholic Charities stating the agency is ‘difficult to deal with’ and they should just do

what they are told.” Id. at 82, 111, 140.

In April 2011, Appellants filed a complaint against Kathryn, the Foundation, and

Catholic Charities, alleging the following claims: (1) fraud against Kathryn and the

Foundation; (2) constructive fraud against Kathryn, the Foundation, and Catholic

Charities; (3) breach of contract against Kathryn and the Foundation; and (4) negligence

6
against Kathryn, the Foundation, and Catholic Charities.1 The basis of the claims related

to the increased cost of the adoptions. The trial court later dismissed the constructive

fraud and negligence counts based on the statute of limitations. As a result, Catholic

Charities was also dismissed from the proceedings. In October 2012, the trial court

granted a stay of the proceedings against Kathryn pursuant to the bankruptcy code stay

provisions, 11 U.S.C. § 362(a)(1), leaving only Appellants’ fraud and breach of contract

claims against the Foundation to proceed. The Foundation then brought a counterclaim

against Appellants for breach of contract and pursuing a frivolous lawsuit.

In June 2012, the Foundation filed a motion for summary judgment. The

Foundation argued that it was entitled to summary judgment on the breach of contract

claim and the fraud claim. Appellants responded and argued that the Foundation, through

Kathryn, provided them with fee schedules representing the costs of a Philippine

adoption but that the ultimate costs significantly exceeded the amounts listed on the fee

schedules. Appellants also filed a cross-motion for summary judgment on the

Foundation’s counterclaim against them. The Foundation filed a response and designated

additional evidence in opposition to Appellants’ cross-motion for summary judgment.

After a hearing, the trial court entered an order granting the Foundation’s motion

for summary judgment and denying Appellants’ motion for summary judgment on the

counterclaim. The trial court found no contract between Appellants and the Foundation

regarding the adoption fees. Consequently, the trial court found that the Foundation was

1
The complaint also included claims against Gary Davis, but he was dismissed by stipulation in June
2011.
7
entitled to summary judgment on Appellants’ breach of contract claim. Similarly, the

trial court found regarding the fraud claim that “all of the contentions of the [Appellants]

concerning fraud involved future occurrences” and that the Foundation was entitled to

summary judgment on the fraud claim. Appellants’ App. p. 22. The trial court found

genuine issues of material fact regarding the Foundation’s counterclaims and denied

Appellants’ cross-motion for summary judgment regarding the counterclaims. The trial

court found no just reason for delay and entered final judgment regarding the granting of

the Foundation’s motion for summary judgment, leaving the counterclaims pending for

future proceedings.

On appeal, Appellants argued, in part, that the trial court erred by denying their

motion for summary judgment regarding the Foundation’s counterclaims. However, we

dismissed Appellants’ appeal regarding that issue because the trial court specifically did

not enter final judgment regarding that issue. See Ind. Trial Rule 54(B); T.R. 56(C).

Analysis

Appellants argue that the trial court erred by granting the Foundation’s motion for

summary judgment. Summary judgment is appropriate when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. T.R. 56.

We liberally construe all designated evidentiary material in a light most favorable to the

non-moving party to determine whether there is a genuine issue of material fact.

Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind. 2009). The party that lost in the trial

court has the burden of persuading the appellate court that the trial court erred. Id. Our

8
review of a summary judgment motion is limited to those materials designated to the trial

court. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001).

I. Breach of Contract

Appellants claim that the trial court improperly resolved disputed material facts

rather than leaving resolution of those facts to the fact finder. In its motion for summary

judgment, the Foundation argued that, pursuant to the Host Family Agreement and Fee

Acceptance and Disclaimer Form, the Foundation did not control the adoption fees and

that the Foundation did not breach its contracts with Appellants. The trial court agreed,

concluding that the adoption fees were not part of those contracts. According to

Appellants, the Foundation breached a contract because the Foundation misrepresented

the adoption costs to entice Appellants to use the Foundation’s services. Appellants

contend that the Foundation promised Appellants that they would incur lower adoption

costs by working with the Foundation.

Appellants cite no authority demonstrating how the alleged representations

regarding the adoption costs were part of a contract between the Foundation and

Appellants. In fact, in their section of argument related to the breach of contract theory,

Appellants cite no authority whatsoever. Indiana Appellate Rule 46(A)(8)(a) requires an

appellant to make arguments supported by cogent reasoning and “citations to the

authorities, statutes, and the Appendix or parts of the Record on Appeal relied on . . . .”

Because Appellants do not present a cognizable argument in support of this assertion, the

issue is waived. Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002),

trans. denied.

9
 Waiver notwithstanding, the essential elements of a breach of contract action are

the existence of a contract, the defendant’s breach thereof, and damages. Fowler v.

Campbell, 612 N.E.2d 596, 600 (Ind. Ct. App. 1993). In general, “in construing [a]

written instrument, the language of the instrument, if unambiguous, determines the intent

of the instrument such that parol or extrinsic evidence is inadmissible to expand, vary, or

explain the instrument unless there has been a showing of fraud, mistake, ambiguity,

illegality, duress or undue influence.” Clark v. CSX Transp., Inc., 737 N.E.2d 752, 758

(Ind. Ct. App. 2000), trans. denied. In the Host Family Agreement and the Fee

Acceptance and Disclaimer Form, Appellants were repeatedly and unambiguously

informed that, if they chose to adopt, they would be required to retain the services of an

adoption agency and that the Foundation had no control over the adoption procedures or

fees. Except in the case of fraud, which we address in Issue II, parol evidence is

inadmissible to vary those contracts.

To the extent Appellants argue that the Foundation provided them with the

Catholic Charities’ adoption fee schedule after signing the Host Family Agreement and

the Fee Acceptance and Disclaimer Form, the trial court found no consideration to form a

separate contract. We agree. An offer, acceptance, plus consideration make up the basis

for a contract. Homer v. Burman, 743 N.E.2d 1144, 1146 (Ind. Ct. App. 2001). “A

mutual assent or a meeting of the minds on all essential elements or terms must exist in

order to form a binding contract.” Id. at 1146-47. “Assent to those terms of a contract

may be expressed by acts which manifest acceptance.” Id. at 1147. “Consideration is

defined as a benefit to the party promising, or a loss or detriment to the party to whom the

10
promise is made.” Pistalo v. Progressive Cas. Ins. Co., 983 N.E.2d 152, 159 (Ind. Ct.

App. 2012), trans. denied. “A benefit is a legal right given to the promisor to which the

promisor would not otherwise be entitled.” Id. “A detriment is a legal right the promisee

has forborne.” Id.

According to Appellants, the Foundation received consideration because, if

Appellants adopted the children, the Foundation was “more quickly relieved of the

responsibilities to provide care and support for the medical missions children.”

Appellants’ Br. p. 10. The trial court properly noted that, under the Host Family

Agreement, the Foundation was no longer financially responsible for the children after

the host families signed the letters of intent to adopt. We further note that the designated

evidence indicates no offer by the Foundation regarding the adoption fees. Simply

providing a Catholic Charities updated adoption fee schedule to Appellants, if indeed that

occurred, is insufficient to form a contract between the Foundation and Appellants

regarding those adoption fees.

Appellants argue that genuine issues of material fact exist regarding the breach of

contract claim. A genuine issue of material fact exists where “facts concerning an issue

that would dispose of the litigation are in dispute or where the undisputed material facts

are capable of supporting conflicting inferences on such an issue.” Wicker v. McIntosh,

938 N.E.2d 25, 28 (Ind. Ct. App. 2010). A fact is “material” if it helps to prove or

disprove an essential element of the plaintiff’s cause of action. Lake States Ins. Co. v.

Tech Tools, 743 N.E.2d 314, 318 (Ind. Ct. App. 2001). We conclude that the disputed

facts cited by Appellants are not material to whether the Foundation breached a contract

11
with Appellants. The trial court properly found that the Foundation was entitled to

summary judgment on Appellants’ breach of contract claim.

II. Fraud

Appellants also argue that the trial court erred by granting summary judgment to

the Foundation on Appellants’ fraud claim. Again, Appellants cite no authority

whatsoever regarding their fraud claim. Indiana Appellate Rule 46(A)(8)(a) requires an

appellant to make arguments supported by cogent reasoning and “citations to the

authorities, statutes, and the Appendix or parts of the Record on Appeal relied on . . . .”

Because Appellants do not present a cognizable argument in support of this assertion, the

issue is waived. Loomis, 764 N.E.2d at 668.

Waiver notwithstanding, the five elements of actual fraud are: 1) a false statement

of past or existing material fact, 2) made with knowledge it was false or made recklessly

without knowledge of its truth or falsity, 3) made for the purpose of inducing the other

party to act upon it, 4) and upon which the other party did justifiably rely and act, 5)

proximately resulting in injury to the other party. Epperly v. Johnson, 734 N.E.2d 1066,

1073 (Ind. Ct. App. 2000). The trial court found that all of Appellants’ contentions

concerning fraud involved future occurences, not past or existing material facts. There

was no designated evidence that the Foundation was aware of what the final adoption

costs would be. “[A]ctionable fraud arises from false representation of past or existing

facts, not from representations as to future action or future conduct. It cannot be based on

broken promises, unfulfilled predictions, or statements of existing intent which are not

executed.” Kopis v. Savage, 498 N.E.2d 1266, 1272 (Ind. Ct. App. 1986).

12
 Appellants’ claims on this issue are not entirely clear. They appear to argue that

the Foundation committed fraud when it provided the Catholic Charities fee schedules to

Appellants. However, Appellants were well aware that the Foundation did not control

the adoption process or Catholic Charities’ fees. In fact, Appellants could have chosen a

different adoption agency. Unfulfilled predictions of the ultimate cost of the adoptions

cannot give rise to actionable fraud. The trial court properly granted the Foundation’s

motion for summary judgment on Appellants’ fraud claim.

III. Appellate Attorney Fees

On appeal, the Foundation argues that it is entitled to appellate attorney fees

pursuant to Indiana Appellate Rule 66(E), which provides: “The Court may assess

damages if an appeal, petition, or motion, or response, is frivolous or in bad faith.

Damages shall be in the Court’s discretion and may include attorneys’ fees. The Court

shall remand the case for execution.” Our discretion to award attorney fees under Indiana

Appellate Rule 66(E) is limited to instances when an appeal is permeated with

meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.

Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). Although Indiana

Appellate Rule 66(E) provides this Court with “discretionary authority to award damages

on appeal, we must use extreme restraint when exercising this power because of the

potential chilling effect upon the exercise of the right to appeal.” Id.

Indiana appellate courts have formally categorized claims for appellate attorney

fees into “substantive” and “procedural” bad faith claims. Id. To prevail on a substantive

bad faith claim, the party must show that the appellant’s contentions and arguments are

13
utterly devoid of all plausibility. Id. Procedural bad faith, on the other hand, occurs

when a party flagrantly disregards the form and content requirements of the rules of

appellate procedure, omits and misstates relevant facts appearing in the record, and files

briefs written in a manner calculated to require the maximum expenditure of time both by

the opposing party and the reviewing court. Id. at 346-47. Even if the appellant’s

conduct falls short of that which is “deliberate or by design,” procedural bad faith can

still be found. Id.

The Foundation argues that Appellants’ appeal meets the requirements for both

substantive and procedural bad faith. According to the Foundation, Appellants’ appeal

was made in substantive bad faith because Appellants improperly attempted to appeal the

denial of their motion for summary judgment and improperly attempted to raise their

dismissed constructive fraud claim by disguising it as a fraud claim. As for procedural

bad faith, the Foundation argues that Appellants failed to include relevant summary

judgment materials in their appendix and failed to make cogent arguments and cite

authorities.

Although we acknowledge that Appellants’ brief fails to fully comply with the

Appellate Rules and that their argument on appeal fails, we cannot say that their

arguments were “utterly devoid of all plausibility” or were “written in a manner

calculated to require the maximum expenditure of time both by the opposing party and

the reviewing court.” Potter v. Houston, 847 N.E.2d 241, 249 (Ind. Ct. App. 2006).

Consequently, we deny the Foundation’s request for appellate attorney fees.

14
 Conclusion

The trial court properly granted the Foundation’s motion for summary judgment

regarding Appellants’ breach of contract and fraud claims. Further, we conclude that the

Foundation is not entitled to appellate attorney fees pursuant to Indiana Appellate Rule

66(E). We affirm.

Affirmed.

CRONE, J., concurs.

BAKER, J., dissents with separate opinion.

15
 IN THE
COURT OF APPEALS OF INDIANA

HOLLY and CHRISTOPHER DUNN, )
HOLLY and BENJAMIN ROTHENBUSH, )
and TOMI and MICHAEL MEYER, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 02A03-1307-PL-269
)
KATHRYN DAVIS and FOR THE CHILDREN )
MEDICAL MISSION FOUNDATION, INC., )
)
Appellees-Defendants. )

BAKER, Judge, dissenting

I respectfully dissent. As Justice Massa recently stated, “sometimes standards of review

decide cases.” Robinson v. State, 5 N.E.3d 362, 363 (Ind. 2014). It is the standard of

review that we must apply in the disposition of a summary judgment motion that compels

me to part ways with my colleagues.

Summary judgment is a powerful tool. Its purpose is to terminate litigation before

trial. Ebersol v. Mishler, 775 N.E.2d 373, 378 (Ind. Ct. App. 2002). Accordingly, the

motion may not be granted in circumstances “[w]here material facts conflict, or

undisputed facts lead to conflicting material inferences . . . .” Id. “This is true even if the

court believes the non-moving party will not succeed at trial.” Id.

16
 Here, the trial court granted summary judgment in favor of the Foundation on the

breach of contract claims because it essentially determined that there was no

consideration. Appellants’ App. p. 15. The Appellants’ designated evidence tended to

show that the Foundation needed host families to adopt the children to relieve the

Foundation of its many responsibilities, including financial obligations and the well-

being of each child. Id. at 37, 41, 45, 165-66, 193. From this evidence, the Appellants

point out that the Foundation received a clear benefit, or consideration, by promising

speedy and less costly adoptions.

On the other hand, the Foundation’s argument is that there could be no

consideration after the letter of intent to adopt was executed because the Foundation was

no longer responsible for that child. Indeed, the Foundation simply matched and placed

the child with the host family. Additionally, the Foundation agrees with the trial court’s

analysis that if the fee schedules were given before the Host Family Agreement and Fee

Acceptance Disclaimer Form were signed, they did not become part of the contract; if

they were signed after, there was no additional consideration. Id. These competing

views indicate the existence of genuine issues of material fact that should not be decided

at the summary judgment stage.

Moreover, I cannot agree with majority’s statement that “[s]imply providing a

Catholic Charities updated adoption fee schedule to Appellants, if indeed that occurred, is

insufficient to form a contract between the Foundation and Appellants regarding those

adoption fees.” Slip op. at 11 (emphasis added). It is perplexing insofar as the record

contains exhibits of Catholic Charities fee schedules. Appellant’s App. p. 50-55.

17
Additionally, the Appellants stated in interrogatories that they were provided with the fee

schedules. Appellants’ App. p. 81-84; 109-113; 138-42.

The Appellants also contend that the trial court erred by deciding questions of

material fact regarding its claim of fraud against the Foundation. More specifically, the

trial court found that the Foundation made no contention that by using its services, the

cost of an international adoption would be lower and much faster. As such, the trial court

found that it did not have to determine whether the “matches” occurred sooner and at a

lower cost since the crux of the complaint were the adoptions. The trial court also

determined that the Appellants’ intermingled “matching” with “adopting” and that the

adopting fees were beyond the control of the Foundation. Appellants’ App. p. 21.

Here, the Appellants designated evidence that the sum of the conversations leading

to the signing of the Host Family Agreement and Fee Acceptance Disclaimer Form and

the additional representations made afterwards led them to believe that the international

adoption process beginning with the Foundation’s “matching” mechanism would be

faster and less costly than traditional international adoptions. The Appellants contend

that the Foundation provided them with adoption fee schedules that represented that the

cost of an international adoption would be between $11,800 and $14,280. Appellants’

App. p. 81, 110, 139. The Appellants maintain that the Foundation was in a superior

position of knowledge and influence and induced each Family through intimidation and

exploitation of their emotional vulnerabilities. Id. at 81-83, 110-12, 139-42.

In light of this evidence, it appears that the trial court simply chose not to believe

the Appellants’ designated evidence that they relied on the Foundation’s assertions that

18
working through them beginning with the matches would lead to faster and less costly

adoptions. These are not necessarily assertions of future events, but rather, assertions of

the expectations of a particular process. Additionally, although it may not have been the

trial court’s intention, it weighed the evidence, and by doing so, it essentially tried the

case at the summary judgment stage of the proceedings. Again, because we must

interpret the evidence and reasonable inferences in favor of the nonmoving party but

expressing no opinion on the merits of this claim, I believe that summary judgment was

improper.

With all due respect, I believe that my esteemed colleagues have essentially

applied the abuse of discretion standard. In other words, the majority reviewed this

appeal as if it had been tried, and this Court is reviewing the verdict. While I

acknowledge that many of our trial courts are juggling overwhelming dockets, we must

nevertheless seek to strike the appropriate balance between efficiency and ensuring that

the citizens of this State have proper access to their courts. Admittedly, this is a close

case, but one in which the proverbial scales tilt in favor of continuation of underlying

litigation. Accordingly, I dissent.

19