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 of establishing
the defense of res judicata, collateral Mar 21 2014, 7:03 am
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE:
THOMAS E. SCHULTE THOMAS J. BELCHER
RENEA E. HOOPER Kelley, Belcher & Brown
Scopelitis Garvin Light Hanson & Feary, P.C. Bloomington, Indiana
Indianapolis, Indiana
ERIC D. SCHEIBLE
Frasco Caponigro Wineman & Scheible, PLLC
Bloomfield Hills, Michigan
IN THE
COURT OF APPEALS OF INDIANA
BRADY D. ERICSON and )
TIFFANY J. ERICSON, )
)
Appellants-Defendants, )
)
vs. ) No. 53A04-1307-MF-376
)
BLOOMFIELD STATE BANK, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable E. Michael Hoff, Judge
Cause No. 53C01-1301-MF-145
March 21, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Brady D. Ericson and Tiffany J. Ericson (the “Ericsons”) appeal the trial court’s denial
of their motion for relief from judgment. The Ericsons sought relief from the entry of
summary judgment in favor of Bloomfield State Bank (the “Bank”) on the Bank’s complaint
to foreclose on real estate. The Ericsons argue that the trial court erred when it failed to
consider their answer and affirmative defense when ruling on the Bank’s summary judgment
motion despite the fact that they did not respond or designate evidence in opposition to
summary judgment. The sole restated issue presented for our review is whether the trial
court abused its discretion in denying the Ericsons’ motion for relief from judgment. Finding
no abuse of discretion, we affirm.
Facts and Procedural History
The undisputed facts are that on March 25, 2005, Ashenda K. Hagos executed and
delivered to the Bank a real estate mortgage (the “Bank Mortgage”) in the original principal
amount of $1,000,000. On March 28, 2005, the Bank Mortgage was recorded in the Office
of the Recorder of Monroe County as instrument number 2005005109. Hagos also granted a
real estate mortgage on the same property to the Ericsons (the “Ericson Mortgage”) in
exchange for a loan of $175,000 pursuant to a note. On March 28, 2005, the Ericson
Mortgage was recorded as instrument number 200500110. The Bank Mortgage was recorded
prior to the Ericson Mortgage.
On January 24, 2013, the Bank filed its complaint on note and foreclosure on real
estate mortgage, naming Hagos, the Ericsons, and the Monroe County Treasurer as
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defendants, claiming, among other things, that the first-recorded Bank Mortgage was
superior to the Ericson Mortgage. The Ericsons filed their answer and affirmative defense on
April 1, 2013. The Ericsons did not dispute that the Bank Mortgage was recorded prior to the
Ericson Mortgage. Instead, the Ericsons claimed, as an affirmative defense, that the Ericson
Mortgage is superior to the Bank Mortgage pursuant to the doctrine of equitable subrogation.
On April 8, 2013, the Bank filed a motion for summary judgment and designation of
evidence. Specifically, the Bank argued that there was no genuine issue of material fact that
the Bank Mortgage was recorded prior to the Ericson Mortgage, and therefore the Bank
Mortgage had priority as a matter of law. The Ericsons did not respond to the motion. The
trial court entered summary judgment in favor of the Bank on May 15, 2013, concluding in
relevant part that the Bank Mortgage was superior to all liens, claims, or interests in the real
estate with the exception of the tax lien of the Monroe County Treasurer. Thereafter, on May
21, 2013, the Ericsons filed a motion for relief from judgment pursuant to Indiana Trial Rule
60(B). The trial court entered an order denying the Ericsons’ request for relief on June 28,
2013. This appeal ensued.
Discussion and Decision
The Ericsons appeal the trial court’s denial of their motion for relief from judgment.
A grant of equitable relief pursuant to Indiana Trial Rule 60 is within the discretion of the
trial court. Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65, 72 (Ind. 2006).
Therefore, we review a trial court’s ruling on a motion for relief from judgment for an abuse
of discretion. Id. An abuse of discretion occurs when the trial court’s judgment is clearly
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against the logic and effect of the facts and inferences supporting the judgment for relief.
Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind. Ct. App. 2012), trans.
denied (2013), cert. denied (2014). Upon appellate review, we will not reweigh the
evidence. Id. The burden is on the movant to demonstrate that the relief is both necessary
and just. Id. at 372. Trial Rule 60(B) “affords relief in extraordinary circumstances which
are not the result of any fault or negligence on the part of the movant.” Goldsmith v. Jones,
761 N.E.2d 471, 474 (Ind. Ct. App. 2002).
The Ericsons’ motion for relief from judgment sought to set aside the entry of
summary judgment in favor of the Bank on the Bank’s foreclosure complaint. Summary
judgment is appropriate only where “the designated evidentiary matter 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). Once the moving party has carried its burden, “the
burden then shifts to the non-moving party to designate and produce evidence of facts
showing the existence of a genuine issue of material fact.” Dreaded, Inc. v. St. Paul
Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009). “A nonmovant may not rest upon
bare allegations made in the pleadings, but must respond with affidavits or other evidence
setting forth specific facts showing there is a genuine issue in dispute.” Myers v. Irving
Materials, Inc., 780 N.E.2d 1226, 1228 (Ind. Ct. App. 2003); Ind. Trial Rule 56(E).
Here, in support of its motion for summary judgment, the Bank designated evidence
which indicated that the Bank Mortgage was recorded prior to the Ericson Mortgage.
Specifically, the Bank designated the complaint, a promissory note, the Bank Mortgage, and
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two supporting affidavits. Based upon this designated evidence, the Bank argued that no
genuine issue of material fact remained regarding the superiority of the Bank Mortgage and
that it was entitled to judgment as a matter of law against the Ericsons. The Ericsons failed
to respond or designate any evidence in opposition to summary judgment.
In requesting the trial court to set aside the summary judgment, the Ericsons
maintained that, despite their admitted failure to respond or designate any evidence in
opposition to the Bank’s summary judgment motion, the trial court should have considered
their answer to the complaint and concluded that a genuine issue of material fact remained
based upon their alleged affirmative defense of equitable subrogation. We disagree.
In summary judgment proceedings, as at trial, the burden of establishing the existence
of material affirmative defenses is on the defendant. Paint Shuttle, Inc. v. Cont’l Cas. Co.,
733 N.E.2d 513, 519 (Ind. Ct. App. 2000), trans. denied (2001); accord Reiswerg v. Statom,
926 N.E.2d 26, 31 (Ind. 2010). Indeed, when “the moving party files materials establishing
the lack of any issue of material fact, the non-movant may not rely upon his pleadings to
demonstrate his affirmative defenses, but must bring forth specific facts, by affidavit or
otherwise, to show a genuine issue for trial.” Abbott v. Bates, 670 N.E.2d 916, 923 (Ind. Ct.
App. 1996). Summary judgment is proper if the defendant fails to designate any evidence
from which the trial court could infer the elements of the asserted affirmative defense. Id.
In denying the Ericsons’ motion for relief from judgment, the trial court stated,
The Ericsons complain that [the Bank’s] summary judgment
designation did not disprove their affirmative defense that they held a superior
mortgage interest through equitable subrogation. However, it was up to the
Defendants to designate evidence in support of their affirmative defense. [The
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Bank] was not required to disprove it. The evidence that [the Bank]
designated was sufficient to prove its claim to a superior mortgage. [The
Bank] was not required to designate evidence to disprove the Ericsons’
affirmative defense, in the absence of any designation that would create an
issue of fact or law concerning that affirmative defense.
Because [the Ericsons] did not file a response to [the Bank’s] Motion
for Summary Judgment within thirty days, the court cannot now consider any
evidence not timely designated …. [The Ericsons’] motion merely seeks
another opportunity to file a summary judgment response. Trial Rule 56 does
not permit such an extension of time.
Appellant’s App. at 10-11.
The Ericsons did not come forward with specific evidence in opposition to the Bank’s
designated materials, and therefore we accept the Bank’s designated evidence as true. Myers,
780 N.E.2d at 1228. We agree with the trial court that the evidence designated by the Bank
was sufficient to prove its claim of a superior mortgage and that the Ericsons’ mere reliance
on the allegations in their answer—which was never designated to the trial court by either
party—was insufficient to create an issue of fact concerning their affirmative defense.
Contrary to the Ericsons’ assertion, neither the trial court nor this Court is permitted to
consider their answer when it was not designated for consideration. See Dinsmore v.
Fleetwood Homes of Tennessee, Inc., 906 N.E.2d 186, 189 (Ind. Ct. App. 2009) (trial and
appellate court may consider only properly designated evidentiary material); Ind. Trial Rule
56(H) (no judgment rendered on a summary judgment motion “shall be reversed on the
ground that there is a genuine issue of material fact unless the material fact and the evidence
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relevant thereto shall have been specifically designated to the trial court.”)1 Moreover, as
stated, a party may not simply rely upon the pleadings to demonstrate an affirmative defense,
but must bring forth specific facts, by affidavit or otherwise, to show a genuine issue for trial.
Abbott, 670 N.E.2d at 923.
The Ericsons direct us to Farm Credit Services. of Mid-America, FLCA v. Tucker, 792
N.E.2d 565 (Ind. Ct. App. 2003), in support of their argument that the trial court “could have
considered evidence not designated” by the Ericsons when deciding whether they were
entitled to relief from the court’s prior entry of summary judgment. Appellant’s Br. at 9. In
Tucker, the trial court permitted a bank, in a foreclosure action, to belatedly file designated
evidence even though the bank failed to file the designation or request an extension of time
within the time frame of Indiana Trial Rule 56. The Tucker court noted that when a trial
court acts in equity in a foreclosure action, it is not bound by “strict rules of law” and may
instead exercise its “power to prevent strict legal rules from working injustice.” Tucker, 792
N.E.2d at 569 (citation omitted). Accordingly, the Tucker court affirmed the trial court’s
decision to consider a belated designation, concluding that the trial court had discretion under
Indiana Trial Rule 56(I) to consider a nonmovant’s designated evidence even though the
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The Ericsons make much of the trial court’s erroneous statement in its summary judgment order that
they had “not filed an Answer to [the Bank’s] complaint” when they had in fact filed an answer. Appellant’s
App. at 1. The Ericsons argue that, due to the trial court’s “mistaken” belief that they had not filed an answer,
the court improperly failed to consider their answer when determining the propriety of summary judgment.
Appellant’s Br. at 12. We note that, in its subsequent order denying the Ericsons’ motion for relief from
judgment, the trial court specifically acknowledged that it had made a misstatement regarding their failure to
file an answer. Additionally, as noted above, because the answer was not designated by either party, it was
properly not considered by the trial court for purposes of summary judgment.
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nonmovant had failed to respond to the motion for summary judgment within thirty days. Id.
at 570.
Notably, the Tucker court declined to follow the well-settled and bright-line rule
enunciated in Seufert v. RWB Medical Income Properties I Limited Partnership, 649 N.E.2d
1070, 1073 (Ind. Ct. App. 1995), that a nonmoving party must respond or seek an extension
within thirty days from the date the moving party filed for summary judgment and the trial
court lacks discretion to permit a nonmoving party, who has not responded in some way
within thirty days, to thereafter file designated evidence opposing summary judgment.
Subsequent panels of this Court have noted that the Seufert bright-line rule had been
consistently followed prior to Tucker and that Tucker appears to be an “anomaly.” See Desai
v. Croy, 805 N.E.2d 844, 849 (Ind. Ct. App. 2004), trans. denied; see also DeLage Landen
Fin. Servs., Inc. v. Cmty. Mental Health Ctr., Inc., 965 N.E.2d 693, 696-97 (Ind. Ct. App.
2012). Significantly, our supreme court specifically disapproved of the reasoning in Tucker
in favor of the bright-line rule that when a nonmoving party fails to respond to a motion for
summary judgment within thirty days either by filing a response, requesting a continuance
under Trial Rule 56(I), or filing an affidavit under Trial Rule 56(F), the trial court lacks the
discretion to consider subsequent summary judgment filings of that party. HomeEq Servicing
Corp. v. Baker, 883 N.E.2d 95, 98 (Ind. 2008) (citing Borsuk v. Town of St. John, 820 N.E.2d
118, 124 n.5 (Ind. 2005)). Accordingly, the Ericsons’ reliance on Tucker is unavailing.2
We likewise find no merit in the Ericsons’ assertion that the trial court’s failure to consider their
2
answer and affirmative defense has, in essence, resulted unfairly in a default judgment against them. As
already stated, any undesignated pleadings were properly not considered by the trial court.
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The trial court properly declined to consider the Ericsons’ answer and affirmative
defense in determining the propriety of summary judgment. Therefore, the trial court did not
abuse its discretion when it concluded that the Ericsons are not entitled to relief from
judgment on that basis. As stated above, Trial Rule 60(B) “affords relief in extraordinary
circumstances which are not the result of any fault or negligence on the part of the movant.”
Goldsmith, 761 N.E.2d at 474. No such extraordinary circumstances are present here. The
trial court’s denial of the Ericsons’ motion for relief from judgment is affirmed.
Affirmed.
BAKER, J., and RILEY, J., concur.
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