FILED
Dec 10 2018, 8:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE:
Chris E. Harkins SHANNON WESTMEYER
Bunker Hill, Indiana Scott E. Andres
Charles J. Maiers
Due Doyle Fanning & Alderfer,
LLP
Indianapolis, Indiana
ATTORNEY FOR APPELLEE:
JON NIKLAS
Michelle L. Burden
Garvey, Shearer, Nordstrom, PSC
Fort Mitchell, Kentucky
ATTORNEY FOR APPELLEE:
ANGIE HARKINS
Nicole A. Mitchell
Freund, Freeze & Arnold
West Chester, Ohio
ATTORNEY FOR APPELLEE:
JANET L. HARKINS
Alan R. Trenz
Trenz & Knabe Co., LPA
Harrison, Ohio
IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 15A01-1703-CT-530 | December 10, 2018 Page 1 of 24
Chris E. Harkins, December 10, 2018
Appellant-Plaintiff, Court of Appeals Case No.
15A01-1703-CT-530
v. Appeal from the Dearborn
Superior Court
Shannon Westmeyer, The Honorable Sally McLaughlin,
Jon Niklas, Angie Harkins, and Judge
Janet Harkins, Trial Court Cause No.
Appellees-Defendants. 15D02-1510-CT-038
Tavitas, Judge.
Case Summary
[1] Chris E. Harkins (“Harkins”), pro se, appeals the trial court’s grant of summary
judgment in favor of Shannon Westmeyer, Jon Niklas, Angie Harkins
(“Angie”), and Janet Harkins (“Janet”). We affirm.
Issues
[2] Harkins raises two issues on appeal, which we restate as:
I. Whether the trial court erred in striking Harkins’ response
materials as untimely filed.
II. Whether the trial court erred in granting summary judgment
in favor of Westmeyer, Niklas, Angie, and Janet.
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Facts
[3] The parties involved in this case are relatives, with the exception of Niklas.
Harkins and Westmeyer are siblings. Angie is Harkins’ and Westmeyer’s
cousin. Angie’s mother, Janet, is Harkins’ and Westmeyer’s aunt.
[4] In April 2012, Harkins moved in with his and Westmeyer’s parents, James and
Cheryl Harkins (the “Parents”). While living in the Parents’ home, Harkins
obtained access to the Parents’ personal financial records. Harkins
subsequently moved out of the Parents’ home and into an apartment (“the
Apartment”) located in Aurora, Indiana. Niklas was Harkins’ landlord.
Harkins’ ex-wife, Dawn Harkins (“Dawn”), had a key to the Apartment.
[5] Using the Parents’ financial information, Harkins (1) forged checks on the
Parents’ accounts; (2) cashed the checks and deposited the proceeds into bank
accounts in Harkins’ name; (3) fraudulently added himself as an authorized
user on the Parents’ existing credit accounts; (4) rerouted the Parents’ credit
card statements to the Apartment; and (5) made unauthorized credit card
purchases in excess of $37,000 on the Parents’ credit cards. Harkins also stole
and pawned multiple pieces of the Parents’ jewelry. Harkins sold many of the
items he purchased with the Parents’ credit cards “for gambling funds.” Harkins
v. State, No. 15A01-1412-CR-553, slip op. at 4 (Ind. Ct. App. Nov. 2, 2015).
[6] Harkins was arrested on June 3, 2014. After Harkins’ arrest, Harkins
authorized Dawn to enter the Apartment and to retrieve personal items
belonging to Harkins’ and Dawn’s son. On June 4, 2014, Westmeyer, Angie,
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and Janet accompanied Dawn to the Apartment. It is undisputed that Dawn
unlocked the Apartment with her key and granted Westmeyer, Angie, and
Janet access to the Apartment. Harkins contends that Westmeyer, Angie, and
Janet removed and disposed of valuable items of Harkins’ personal property.
Westmeyer, Angie, and Janet maintain that they removed only personal
property items and furniture that belonged to the Parents or to other family
members.
[7] On August 6, 2014, the State charged Harkins with various offenses and with
being a habitual offender. After a jury trial, Harkins was convicted of five
counts of forgery, Class C felonies; two counts of identity deception, Class D
felonies; two counts of credit card fraud, Class D felonies; one count of
deception, a Class A misdemeanor; and of being a habitual offender. Harkins
was sentenced to a twenty-two-year term in the Department of Correction and
is presently incarcerated in the Miami Correctional Facility in Bunker Hill,
Indiana. 1
[8] On October 9, 2015, Harkins filed a pro se suit for damages against Westmeyer,
Angie, Janet, and Niklas. In Count I, which Harkins titled
“[w]rongful/[f]raudulent conversion,” Harkins alleged that Westmeyer: (1)
enlisted Niklas’ assistance to gain entry to the Apartment; (2) recruited Janet
1
On November 2, 2015, we affirmed Harkins’ convictions on direct appeal. Harkins, No. 15A01-1412-CR-
553, slip op. at 20.
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and Angie; (3) removed and transported Harkins’ personal property to a local
Goodwill donation site; and (4) maliciously and intentionally deprived Harkins
of his property without communicating the disposition of the items. Appellee
Westmeyer’s App. Vol. II pp. 22-23.
[9] In Count II, Harkins alleged that Westmeyer drove his truck or directed his
truck to be driven to a location at which the keys and keyless entry remote were
locked inside. Harkins sought damages for the costs of replacing and repairing
“a window [that] was . . . broken to gain access into the truck.” Id. at 24.
[10] In Count III, Harkins alleged that, despite Niklas’ knowledge that Niklas’
tenant, Harkins, was incarcerated, Niklas exercised unauthorized control over
Harkins’ property and acted “willfully, intentionally and negligently” in
“opening or making accessible the apartment” to Westmeyer, Angie, and Janet,
without providing notice to Harkins as required by law. Id. at 26.
[11] In Count IV, Harkins alleged that Westmeyer “acted with the specific and
purposeful intentions to inflict emotional distress” when Westmeyer removed
Harkins’ personal property and “acted with malicious intent to cause [Harkins]
to suffer emotionally . . . on the belief that [Harkins] had wronged their
parents.” Id.
[12] In Count V, Harkins alleged that Janet and Angie aided Westmeyer in
exercising unauthorized control over his property “with the intent to forever
deprive” Harkins thereof. Id. at 28.
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I. Motions for Summary Judgment
A. Westmeyer
[13] On March 2, 2016, Westmeyer served Harkins with requests for admissions
(“RFAs”), which included the following:
15. Shannon Westmeyer did not remove any of your personal
property from your apartment.
16. Any property that Shannon Westmeyer removed from
your apartment did not belong to you.
Appellee Westmeyer’s App. Vol. II pp. 3-4. Harkins did not respond to the
RFAs. Westmeyer also served Harkins with interrogatories. In Harkins’
answers to Westmeyer’s interrogatories, Harkins admitted that, after his arrest,
Harkins granted Dawn permission to enter the Apartment and to retrieve items
belonging to their son.
[14] On June 2, 2016, Westmeyer, by counsel, filed a motion for summary
judgment. On July 18, 2016, the trial court granted Harkins “an extension of
45 days from the date of th[e] order to respond to [ ]Westmeyer’s Motion for
Summary Judgment”; accordingly, Harkins’ response to Westmeyer’s motion
for summary judgment was due on September 1, 2016. On September 6, 2016,
Harkins filed his response in opposition to Westmeyer’s motion for summary
judgment, including Harkins’ own affidavit, a subpoena request regarding
Dawn, and Harkins’ designation of evidence (collectively, “response
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materials”). 2 Harkins also designated the appellees’ answers to his complaint,
the appellees’ affidavits, and the other documents filed by Westmeyer, Angie,
and Janet.
B. Angie’s Motion for Summary Judgment
[15] On July 5, 2016, Angie filed a motion for summary judgment. In support,
Angie designated an affidavit and incorporated all materials designated by
Westmeyer in support of Westmeyer’s motion for summary judgment. Harkins
moved for additional time in which to respond. On September 6, 2016, the trial
court granted Harkins an additional thirty days from the date of its order to
respond to Angie’s motion for summary judgment; accordingly, Harkins’
response to Angie’s motion for summary judgment was due on October 6,
2016. Harkins did not file a response to Angie’s motion for summary
judgment.
C. Janet’s Motion for Summary Judgment
[16] On June 24, 2016, Janet filed a motion for summary judgment and designated
an affidavit in support. Harkins filed a motion for additional time to respond.
On September 6, 2016, the trial court granted Harkins an additional thirty days
to respond; accordingly, Harkins’ response to Janet’s motion for summary
judgment was due on October 6, 2016. Harkins did not file a response.
2
On appeal, Harkins has supplied us with his two-page list of designated materials; however, he has not
included the response materials in his appellant’s appendix.
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D. Niklas’ Motion for Summary Judgment
[17] On October 20, 2016, Niklas filed a motion for summary judgment. Niklas
designated Harkins’ responses to Westmeyer’s RFAs as well as all materials
designated by Westmeyer, Janet, and Angie. Harkins filed a motion for
additional time to respond. On November 29, 2016, the trial court granted
Harkins an additional thirty days to respond; accordingly, Harkins’ responsive
filing was due on December 29, 2016. Harkins did not file a response.
II. Summary Judgment Hearings and Rulings
[18] On October 7, 2016, the trial court conducted a hearing on the motions for
summary judgment filed by Westmeyer, Angie, and Janet. Westmeyer, Angie,
and Janet moved, pursuant to Indiana Trial Rule 56(C), to strike, as untimely,
Harkins’ response materials to Westmeyer’s motion for summary judgment.
The trial court granted the motion and ordered Harkins’ response materials and
other filings stricken.
[19] On December 12, 2016, the trial court entered summary judgment in favor of
Westmeyer, Angie, and Janet. In its order, the trial court stated:
* * * * * Ind. T.R. 56 states that “an adverse party shall
have thirty days after service of the motion to serve a response
and any opposing affidavits.” Id. Additionally, it instructs “at
the time of filing the motion or response, a party shall designate
to the Court all parts of pleadings, depositions, answers to
interrogatories, admissions, matters of judicial notice, and any
other matters in which it relies for purposes of the motion.” Id.
In Allstate Insurance Co. v. Hatfield, 28 N.E.3d 247 (Ind. Ct. App.
2015), the Court of Appeals found that where a Plaintiff did not
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respond to a Motion for Summary Judgment until 35 days after
the motion was filed nor requested an extension of time, that the
Defendant’s Motion to Strike any late filed responses should be
granted.
Here, [Harkins] failed to respond timely and [Westmeyer’s, Angie’s,
and Janet’s] evidence contains no genuine issue of material fact and on
this basis summary judgment should be denied [sic 3].
WHEREFORE, the Court finds that [Harkins’] submissions and
testimony in response to [the] Motions For Summary Judgment
[filed by Westmeyer, Angie, and Janet] shall be stricken and
summary judgment shall be granted in favor of the Defendants,
Shannon Westmeyer, Janet Harkins and Angie Harkins.
Appellant’s App. Vol. II pp. 17-18.
[20] On January 13, 2017, the trial court conducted a hearing on Niklas’ motion for
summary judgment. On February 13, 2017, the trial court entered summary
judgment in favor of Niklas on virtually identical grounds as the trial court cited
regarding the motions for summary judgment filed by Westmeyer, Janet, and
Angie. Harkins now appeals.
Analysis
[21] Harkins appeals the grant of summary judgment in favor of Westmeyer, Angie,
Janet, and Niklas. Summary judgment is appropriate only when the moving
3
Upon a showing that no genuine issues of material fact existed, the appellees’ motions for summary
judgment would be granted, not denied.
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party shows there are no genuine issues of material fact for trial and the moving
party is entitled to judgment as a matter of law. Erie Indem. Co. for Subscribers at
Erie Ins. Exch. v. Estate of Harris by Harris, 99 N.E.3d 625, 629 (Ind. 2018), reh’g
denied; see also Ind. Trial Rule 56(C). Once that showing is made, the burden
shifts to the nonmoving party to designate appropriate evidence to demonstrate
the actual existence of a genuine issue of material fact. Schoettmer v. Wright, 992
N.E.2d 702, 705-06 (Ind. 2013). When ruling on the motion, the trial court
construes all evidence and resolves all doubts in favor of the non-moving
party. Id. at 706. We review the trial court’s ruling on a motion for summary
judgment de novo, and we take “care to ensure that no party is denied his day
in court.” Id. “We limit our review to the materials designated at the trial
level.” Gunderson v. State, Indiana Dep’t of Nat. Res., 90 N.E.3d 1171, 1175 (Ind.
2018).
[22] An “adverse party shall have thirty (30) days after service of the
motion to serve a response and any opposing affidavits.” T.R.
56(C). If opposing the motion, the adverse party is to “designate
to the court all parts of pleadings, depositions, answers to
interrogatories, admissions, matters of judicial notice, and any
other matters on which it relies for the purposes of the motion.”
When a non-moving party does not respond to a summary
judgment motion within thirty days, the trial court cannot
consider summary judgment filings that party subsequently
makes. While a party who does not respond to a motion for
summary judgment may be limited to the facts established by the
movant’s submissions, such failure to respond does not preclude
argument of the relevant law on appeal.
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Quirk v. Delaware Cty., 91 N.E.3d 1008, 1014 (Ind. Ct. App. 2018) (internal
citations omitted).
[23] A non-moving party’s failure to file a cross-motion for summary judgment, to
file a brief in opposition to summary judgment, or to designate any evidence to
demonstrate the existence of a genuine issue of material fact does not entitle the
movant to summary judgment by default. Larson v. Karagan, 979 N.E.2d 655,
659 (Ind. Ct. App. 2012). Nor is a trial court required to grant an unopposed
motion for summary judgment. Id.
I. Striking of Response Materials
[24] Harkins argues that the trial court erred in failing to apply the prison mailbox
rule and in striking Harkins’ response materials as untimely filed.
[25] In 2010, our supreme court expressly adopted the “prison mailbox rule” as a
mechanism to gauge the timeliness of court filings made by incarcerated
persons. Dowell v. State, 922 N.E.2d 605, 607 (Ind. 2010) (quoting Houston v.
Lack, 487 U.S. 266, 108 S. Ct. 2379 (1988)). The “prison mailbox rule”
recognizes that pro se “prisoners cannot personally travel to the courthouse to
see that the notice is stamped ‘filed’ or to establish the date on which the court
received the notice.” Id.
[26] The prison mailbox rule provides that “a pro se incarcerated litigant who
delivers a [document] to prison officials for mailing on or before its due date
accomplishes a timely filing”; and the document is deemed “filed” on the date
of submission to prison officials. Id. at 607. A pro se prisoner must provide
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“reasonable, legitimate, and verifiable documentation supporting a claim that a
document was timely submitted to prison officials for mailing.” Id. at 608.
“Where a prisoner’s proof is lacking, however, the opposite result obtains.” Id.
[27] Here, Harkins argues that he “handed his legal mail to the facility personnel on
September 6, 2016 for mailing to the court and the parties to the action.”
Appellant’s Br. pp. 9-10. Harkins also “obtained a letterhead statement from
the facility administration explaining the reason the mail containing the
[response materials] was late in reaching the court.” Id. at 9 (citing Appellant’s
App. Vol. II p. 48). The “letterhead statement,” dated September 23, 2016, is
captioned “Misplaced Legal Mail” and purports to be written by Miami
Correctional Facility library supervisor, Jessica Rhodes. The letter states:
Offender Harkins, Chris DDC#253607 provided in accordance
with facility policy five (5) large envelopes containing legal
documents and marked as “legal Mail” on Tuesday September 6,
2016 for mailing. The envelopes were handed to the Law
Librarian responsible for overseeing the logging of the addresses
of the outgoing legal mail. A remittance slip was attached and
properly filled out by Harkins requesting first class postage be
applied to the mail and charged against his inmate trust account.
A security signal was called at appox [sic] 1500hrs on Tuesday
September 6, 2016 and the library was then cleared of all
personnel. This triggered a chain of events causing Offender
Harkins’s mail amongst others to be left unintentionally in a
postal mailbox that went unnoticed until Thursday September
22, 2016. Offender Harkins has requested by way of emergency
grievance that the Court and his adversary [sic] be made aware
that the attempted mailing failed by no fault of the offender.
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Appellant’s App. Vol. II p. 48. Harkins’ responsive materials also bear a
certificate of service, dated September 6, 2016.
[28] Notably, Ms. Rhodes’ letter is not a sworn affidavit submitted under penalty of
perjury; however, we will give Harkins the benefit of the doubt here and find
that “the evidence taken as a whole create[s] a presumption that Harkins
functionally filed his documents” on September 6, 2016. See Dowell, 922
N.E.2d at 608. Accordingly, we agree with Harkins that, by application of the
prison mailbox rule, Harkins’ response materials, which were due to be filed
with the trial court on September 1, 2016, were functionally “filed” on
September 6, 2016, when he delivered them to prison personnel.
[29] Next, Harkins argues that his September 6, 2016 filing, which was due to the
trial court on September 1, 2016, was timely because (1) Harkins received by
mail the trial court’s order granting Harkins a forty-five-day extension of time to
respond to Westmeyer; and (2) pursuant to Indiana Trial Rule 6(E), Harkins
was, therefore, entitled to an automatic three-day extension. Specifically,
Harkins argues that, applying the Rule 6(E) three-day extension to the
September 1, 2016 deadline, Harkins’ responsive deadline was Sunday,
September 4, 2016; the following day, September 5, 2016, was the Labor Day
holiday; and, therefore, Harkins’ response materials were timely filed on
September 6, 2016. See Trial Rule 6(A). We cannot agree.
[30] Rule 6(E) states,
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Whenever a party has the right or is required to do some act or
take some proceedings within a prescribed period after the service
of a notice or other paper upon him and the notice or paper is
served upon him by mail, three days shall be added to the
prescribed period.
Ind. T.R. 6(E).
[31] In McDillon v. Northern Indiana Public Service Co., 841 N.E.2d 1148, 1151 (Ind.
2006), our supreme court considered “whether [Rule 6(E)] properly applies to
extend the commencement of deadlines following all court orders, including
those deadlines triggered by the entry of an order or happening of an event, or
only by those deadlines that are triggered by service of a court order.”
[32] Our supreme court’s unequivocal answer to this question is that not all court
orders receive the benefit of the Rule 6(E) automatic three-day extension. As
the McDillon court held, Rule 6(E) applies:
only when a party has a right or is required to do some act within
a prescribed period after the service of a notice or other paper. It
does not apply to extend periods that are triggered by the mere entry of
the order or the happening of an event other than the service of notice or
other paper.
841 N.E.2d at 1152 (emphasis supplied).
[33] In its analysis, the McDillon court set out various examples of time periods to
which the Rule 6(E) automatic three-day extension “would apply,” id. at 1151:
Ind. Trial Rule 6(C) (responsive pleading required to be served
“within 20 days after the service of the prior pleading”); Ind. Trial
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Rule 33(C) (responses to interrogatories due “not less than thirty
(30) days after service thereof”); Ind. Trial Rule 56(C) (adverse
party has “thirty days after service of the motion to serve a
response and any opposing affidavits”).
Id. (quoting Annon II, Inc. v. Rill, 597 N.E.2d 320, 324-25 (Ind. Ct. App. 1992)).
[34] In each of the examples cited by the McDillon court in which Rule 6(E) was
used to extend the deadline for certain filings, the deadline was triggered by
service or notice—not, as here, “from the date of [an] order” by the trial
court. This small difference in language is important. For example, McDillon
cites Baker v. Sihsmann, 315 N.E.2d 386, 387 (Ind. Ct. App. 1974), to
demonstrate allowance of the three-day extension when the response period
began “the day after receipt of the summons.” McDillon, 841 N.E.2d at 1151
(emphasis added). McDillon also cites Yaksich v. Gastevich, 440 N.E.2d 1138,
1139 n.2 (Ind. Ct. App. 1982) as an example, which allowed the three-day
extension when the period was triggered “after notice of the order.” McDillon,
841 N.E.2d at 1152 (emphasis added). These examples are consistent with the
McDillon court’s conclusion that Rule 6(E) applies when the deadline to respond
is triggered by service or notice to a party and not, as here, when the deadline is
triggered by the date of an order.
[35] Stated differently, there are essentially two requirements for the three-day
extension to apply. First, the time period for a filing must be triggered by
service of a paper. Second, service to the individual must be completed by mail.
In this case, while Harkins was in fact served by mail, the first requirement is
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not met. The order granting Harkins’ motion for extension of time granted
Harkins “an extension of 45 days from the date of this order to respond to
Defendant Shannon Westmeyer’s Motion for Summary Judgment.” 4
Appellant’s App. p. 27 (emphasis added). Harkins’ forty-five-day extension
period was not a prescribed period after service but, rather, was a period that was
merely “triggered by” the entry of the trial court’s order extending Harkins’
time to respond to Westmeyer. See McDillon, 841 N.E.2d at 1152.
[36] Guided by McDillon’s explicit holding, we conclude that the forty-five-day
enlargement period does not receive the benefit of Rule 6(E) because the period
was merely triggered by the trial court’s entry of the enlargement order. A
finding otherwise would afford all court orders the benefit of Rule 6(E), which
would contravene the McDillon court’s explicit holding that Rule 6(E) properly
applies only to extend the commencement of deadlines that are triggered by
service.
[37] For these reasons, we find that the automatic three-day extension pursuant to
Rule 6(E) does not apply to extend Harkins’ deadline from September 1, 2016.
The trial court, therefore, did not err in deeming Harkins’ September 6, 2016
4
For our purposes, the time period to be analyzed here is not Harkins’ initial time period to respond
following service of Westmeyer’s motion for summary judgment. Rule 6(E) “would apply” to that period, as
that period was triggered by service upon Harkins of Westmeyer’s motion for summary judgment. See 841
N.E.2d at 1151. Rather, the time period at issue here is the ensuing forty-five-day enlargement window.
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response materials to be untimely filed and ordering Harkins’ response
materials stricken.
II. Motions for Summary Judgment
A. Westmeyer
[38] Lastly, we turn to Harkins’ contentions that genuine issues of material fact
precluded entry of summary judgment in favor of Westmeyer, Angie, Janet,
and Niklas. We begin with Harkins’ claims of tortious conversion and
intentional infliction of emotional distress as to Westmeyer. Harkins contends
that Westmeyer exercised unauthorized control of Harkins’ property and,
thereby, caused Harkins to suffer emotional distress.
[39] Tortious conversion is appropriating another’s personal property for the
tortfeasor’s own use and benefit, in exclusion and defiance of the owner’s
rights, and under an inconsistent claim of title. Campbell v. Criterion Grp., 621
N.E.2d 342, 346 (Ind. Ct. App. 1993).
[40] Intentional infliction of emotional distress is “committed by ‘one who by
extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another.’” Board of Trustees of Purdue University v. Eisenstein,
87 N.E.3d 481, 500 (Ind. Ct. App. 2017), trans. denied.
The elements of intentional infliction of emotional distress are
that a defendant (1) engages in extreme and outrageous conduct
that (2) intentionally or recklessly (3) causes (4) severe emotional
distress to another. “The requirements to prove this tort are
‘rigorous.’” “Intentional infliction of emotional distress is found
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where conduct exceeds all bounds usually tolerated by a decent
society and causes mental distress of a very serious kind.”
“Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” In
the appropriate case, an intentional infliction of emotional
distress claim may be disposed of by summary judgment.
Id. at 500-01 (internal citations omitted).
[41] Pursuant to Indiana Trial Rule 36(A), a party may serve upon any other party a
written request for the admission of the truth of any matters covered under
Indiana Trial Rule 26(B), which governs the scope of discovery. “The matter is
admitted unless, within a period designated in the request . . . the party to
whom the request is directed serves upon the party requesting the admission a
written answer or objection addressed to the matter, signed by the party or by
his attorney.” Ind. Trial Rule 36(A).
[42] Matters admitted are deemed conclusively established, unless the trial court
permits withdrawal or amendment of the admission. Ind. Trial Rule 36(B);
Gen. Motors Corp., Chevrolet Motor Div. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885,
888-89 (Ind. 1991). When a party fails to timely answer requests for admission
and the result of such failure is the admission of all facts material to the lawsuit,
nothing remains to litigate, and the requesting party is entitled to summary
judgment. Bryant v. County Council of Lake County, 720 N.E.2d 1, 6 (Ind. Ct.
App. 1999), trans. denied.
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[43] In Westmeyer’s motion for summary judgment, Westmeyer designated her
RFAs to Harkins, which stated:
15. Shannon Westmeyer did not remove any of your personal
property from your apartment.
16. Any property that Shannon Westmeyer removed from
your apartment did not belong to you.
Westmeyer’s App. Vol. II pp. 3-4. Harkins never responded to Westmeyer’s
RFAs, and they were deemed admitted.
[44] Additionally, to demonstrate the absence of a genuine issue of material fact as
to whether Westmeyer committed conversion, Westmeyer designated an
affidavit in which she averred that: (1) she removed only “paperwork . . . that
rightfully belonged to” the Parents, including “bank statements, credit card
statement, and tax returns”; “[a] printer/scanner/fax machine contain[ing]
sensitive information concerning” the Parents because “Janet Harkins, who was
there with [Westmeyer], identified it as one that [Janet] personally gave to” the
Parents; and “a piece of art work” that Harkins had offered to give Westmeyer
before the above-mentioned events; and (2) Westmeyer did not drive Harkins’
2001 Ford F-150 pickup truck or lock the truck keys inside the pickup truck.
Westmeyer’s App. pp. 73-74.
[45] Further, as to Harkins’ claim of intentional infliction of emotional distress,
which was predicated upon the alleged tortious conversion of Harkins’ personal
property, Westmeyer averred that, after Harkins was arrested for defrauding the
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Parents, Westmeyer merely retrieved and returned to the Parents items that the
Parents owned and/or purchased. This is not outrageous conduct that would
support an intentional infliction of emotional distress claim.
[46] By Harkins’ failure to respond to Westmeyer’s RFAs, the matters asserted in
those RFAs were deemed admitted and conclusively established. See id.
Harkins, thereby, admitted that Westmeyer did not remove Harkins’ personal
property from the Apartment. As to Westmeyer, all issues dispositive of
Harkins’ conversion claim and the related emotional distress claim are
conclusively established by operation of Trial Rule 36, and no issues remain to
be litigated.
[47] Westmeyer established the absence of any genuine issues of material fact as to
whether she committed tortious conversion or intentional infliction of
emotional distress. Westmeyer also established her entitlement to judgment as
a matter of law. Accordingly, the trial court did not err in entering summary
judgment in Westmeyer’s favor.
B. Angie
[48] Next, Harkins argues that genuine issues of material fact precluded entry of
summary judgment in favor of Angie on Harkins’ claims of tortious conversion
and infliction of emotional distress.
[49] As to Harkins’ tortious conversion claim, Angie designated her affidavit in
which she averred that she only retrieved items that were purchased by or
belonged to the Parents from the Apartment, including clothing, towels, “quilts
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and knick-knacks”; items belonging to Dawn’s and Harkins’ son; and an
heirloom desk that belonged to Harkins’ maternal grandmother. Appellee
Angie’s Br. p. 13. Angie averred that she delivered all of the items that she
removed from the Apartment to the Parents and that Angie retained none of the
items. Angie also denied that she drove Harkins’ truck, locked his truck keys
inside, or removed Harkins’ paperwork, office equipment, or artwork.
[50] As to Harkins’ claim of intentional infliction of emotional distress, Angie
designated an affidavit in which Angie averred that, after Harkins was arrested
for defrauding the Parents, Angie retrieved and returned to the Parents items
from the Apartment that the Parents owned and/or purchased. This is not
outrageous conduct that would support an intentional infliction of emotional
distress claim.
[51] After Angie designated evidence to support her claim that no genuine issues of
material fact existed regarding Harkins’ claims of tortious conversion and
intentional infliction of emotional distress, the burden shifted to Harkins to
present contrary evidence showing an issue for the trial court. Harkins,
however, failed to respond to Angie’s motion for summary judgment and has
not carried his burden. Accordingly, Angie is entitled to judgment as a matter
of law.
[52] Because Harkins failed to demonstrate that genuine issues of material fact
existed with regard to his claims of conversion and intentional infliction of
emotional distress against Angie, and Angie showed that she is entitled to
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judgment as a matter of law, we conclude that the trial court did not err in
granting summary judgment in Angie’s favor.
C. Janet
[53] Next, Harkins argues that genuine issues of material fact precluded entry of
summary judgment in favor of Janet on his claims of tortious conversion and
infliction of emotional distress.
[54] In support of her motion for summary judgment, Janet designated her affidavit
in which she averred that she “did not remove or retain any items taken from
[Harkins’] apartment” and “only assist[ed] . . . in the sorting and recovery of
property that Janet understood was not owned by Harkins.” Appellee Janet’s
Br. p. 21; Janet’s App. Vol. II p. 48. After Janet designated evidence to support
her argument that no genuine issues of material fact existed and that Janet is
entitled to judgment as a matter of law, the burden shifted to Harkins to present
contrary evidence showing an issue for the trial court. Harkins failed to
respond to Janet’s motion for summary judgment and has not carried his
burden.
[55] For reasons stated above as to Angie, we conclude that Harkins failed to
demonstrate that genuine issues of material fact existed with regard to his
claims of conversion and intentional infliction of emotional distress against
Janet and that Janet has demonstrated she is entitled to judgment as a matter of
law. The trial court did not err in entering summary judgment in Janet’s favor.
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D. Niklas
[56] Harkins argues that genuine issues of material fact precluded entry of summary
judgment in Niklas’ favor. In Harkins’ complaint, Harkins alleged that Niklas:
(1) acted with deliberate indifference and culpable negligence in allowing
Westmeyer, Angie, Janet, and Dawn to enter the Apartment, without notice to
Harkins; and (2) lacked authority to grant anyone access to Harkins’
Apartment.
[57] In Niklas’ designated motion for summary judgment materials, Niklas averred
that he did not unlock the Apartment; and that Dawn unlocked the Apartment
with her own key. Niklas also designated Harkins’ answers to Westmeyer’s
interrogatories, in which Harkins admitted that he granted Dawn permission to
enter the Apartment after his arrest. Niklas’ App. Vol. II p. 59. The burden
then shifted to Harkins to present contrary evidence showing an issue for the
trial court; however, Harkins failed to respond to Niklas’ motion for summary
judgment. Harkins failed to carry his burden of demonstrating that genuine
issues of material fact existed with regard to Niklas’ role in the removal of items
from the Apartment; and, thus, Niklas has demonstrated that he is entitled to
judgment as a matter of law. The trial court did not err in granting summary
judgment in favor of Niklas.
Conclusion
[58] No genuine issues of material fact exist as to Harkins’ claims of conversion and
infliction of emotional distress against Westmeyer, Angie, and Janet. Nor do
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any genuine issues of material fact exist regarding Harkins’ claims that Niklas
acted with deliberate indifference and culpable negligence in facilitating the
entry of Westmeyer, Angie, and Janet into the Apartment. We conclude that
the trial court did not err in finding that Westmeyer, Angie, Janet, and Niklas
were entitled to judgment as a matter of law and in granting summary judgment
in their favor. We affirm.
[59] Affirmed.
[60] Brown, J., and Altice, J., concur.
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Chris E. Harkins v. Shannon Westmeyer, Jon Niklas, Angie Harkins, and Janet Harkins
Combined Opinion