RILEY, Judge.
Appellants-Plaintiffs, Stacy Smith and Robert Smith, Individually and as Co-Personal
We affirm in part, reverse in part, and remand for further proceedings.
The Smiths raise two issues on appeal, which we restate as follows:
This cause comes before us as an appeal to the trial court's grant of summary judgment in an action arising from the wrongful death of a child following acute alcohol poisoning at the Delta Tau Delta fraternity house at Wabash College, Indiana.
In the fall of 2008, Johnny, originally from Tucson, Arizona was a college freshman at Wabash College, in Crawfordsville, Indiana. At the beginning of the fall semester, Johnny pledged at the Beta Psi Chapter of Delta Tau Delta and began living in the Beta Psi fraternity house, which was owned by the College. In the week leading up to Homecoming on October 4, 2008, the freshmen pledges were put through a "hell week" of hazing and sleep deprivation. (Appellant's App. p. 145). In one of these activities, Johnny was required to participate in Chapel Sing, an annual Wabash tradition the week of Homecoming where freshmen pledges of each fraternity house compete against each other to yell the Wabash school song the loudest. At practices for Chapel Sing, fraternity members routinely haze the freshmen pledges. Because Johnny failed to perform to the satisfaction of his fraternity brothers during the Chapel Sing competition on October 2, 2008, he had a large red W spray painted on him. In addition, the pledges were required to stay up into the early morning hours to build a Homecoming float and to clean the fraternity house kitchen wearing only an apron.
On Tuesday, September 30, 2008, Beta Psi's social chairman emailed the Delta Tau Delta pledges announcing a house party at the fraternity house the weekend of Homecoming at which there would be "an abundance of alcohol." (Appellant's App. p. 145). During this house party on October 4, 2008, Johnny began drinking beer at the fraternity house shortly before 9 p.m. Throughout the evening, Johnny consumed multiple beers and several shots
At 11 p.m., Johnny's pledge brothers physically carried him to the upstairs bedroom. At the instruction of Delta Tau Delta's house risk manager, Johnny's mattress was taken off his top bunk and placed on the floor. Johnny was placed on his side "so he wouldn't choke on his vomit" and Stevan Stankovich (Stankovich), a freshman pledge, was ordered to keep an eye on him. (Appellant's App. p. 149). Around 11:30 p.m., Stankovich noticed Johnny's body to be limp, his breathing shallow, and his eyes remained open even though he was non-responsive. At around 2 a.m., Stankovich left the room to drive several drunken Delta Tau Delta alumni back to their hotel; he returned around 3:45 a.m. On October 5, 2008, at 8:45 a.m., when the pledges were awoken to clean up after the party, Johnny was found deceased, lying in a pool of his own vomit. The Montgomery County coroner later determined that, when he was found, Johnny had been dead for at least four to eight hours; and his blood alcohol content was nearly .40%.
The national fraternity, Delta Tau Delta, was founded in 1858 at Bethany College in West Virginia, and is now comprised of 131 local chapters and colonies in multiple countries. It is a non-profit corporation, with its central office located in Fishers, Indiana and comprised of a volunteer alumni board of directors. Although originally managed by its undergraduate members, in the late 19th Century the members determined they no longer had the ability to manage the fraternity effectively and they created and bequeathed power to the national organization.
Delta Tau Delta is governed by a constitution, bylaws, and member responsibility guidelines which promulgate policies, rules, and procedures for its local chapters. These rules encompass, among others, the rituals to be carried out by the local chapters, delineate the powers and duties of the local chapters' officers, prescribe discipline and process for expelling fraternity members, and describe the type of social events which are prohibited. Specifically, Delta Tau Delta mandates that
(Appellant's App. p. 227).
In addition to its constitution and bylaws, the national fraternity adopted member responsibility guidelines which "provide a concise articulation of the responsibilities of each member, regarding alcohol, drugs, hazing, abusive behavior, and property management. Any violation of these criteria is viewed seriously by [Delta Tau Delta], and it is the responsibility of every undergraduate chapter member and volunteer to see that [t]he [g]uidelines are upheld." (Appellant's App. p. 233). In 1999, and as restated in 2007, Delta Tau Delta explicitly recognized "the well known dangers of alcohol and substance abuse", and adopted policy statements as part of its guidelines, reaffirming:
(Appellant's App. p. 234). In addition, Delta Tau Delta prohibited the purchase of alcohol with fraternity funds, use of alcohol at rush, pledge, and initiation activities, drinking games, as well as kegs of beer and other common containers of alcohol.
The specific implementation procedures of these guidelines at local level prescribe that:
(Appellant's App. p. 233).
To promulgate and enforce these rules, Delta Tau Delta enacted an hierarchical enforcement criteria and a complex enforcement program. Upon dividing violations of Delta Tau Delta's constitution, bylaws, and member responsibility guidelines into three levels, each level institutes its own sanction. Specifically, a level I violation — e.g., failure to implement Delta Tau Delta's alcohol education program — triggers a response "determined and coordinated by [Delta Tau Delta's] Central Office staff;" while a level II violation — e.g. hazing, alcohol during pledge activities, and
To further regulate hazing and alcohol use at its local chapters, Delta Tau Delta implemented "Delts Talking About Alcohol." This program is designed to educate individual members as to how to recognize the signs of acute alcohol poisoning, and once recognized, how to properly handle the emergency. At the time of Johnny's death, Delta Tau Delta required all pledges to complete the program within the first semester of their pledgeship. As of the evening of October 4, 2008, none of the members of Johnny's pledge class had completed the program.
To ensure compliance by the local chapter with its mandates, Delta Tau Delta relies on chapter consultants and chapter advisors. Chapter consultants periodically visit the local chapter to review its operations. If, during the visit, the chapter consultant observes conduct in violation of Delta Tau Delta's constitution, bylaws, or member responsibility guidelines, he advises his supervisor who is responsible to investigate the incident. A chapter advisor, on the other hand, is assigned to a local chapter by the national fraternity and is required to attend at least one chapter meeting a month to keep the national fraternity "fully and accurately informed of the affairs of the chapter." (Appellant's App. p. 184). At the time of Johnny's death, Beta Psi's chapter advisor was Doug Coy (Coy). As chapter advisor, he was expected to report any conduct violations to Delta Tau Delta as well as ensure that the local chapter complied with corrective actions ordered by the national fraternity and the new pledges completed the "Delts Talking About Alcohol" program. Coy was at the fraternity house on the evening of October 3, 2008 and again on the day of the Homecoming party, October 4, 2008.
During the existence of its local chapter at Wabash College, Delta Tau Delta has investigated and substantiated prior incidents involving hazing. Most recently, in the spring of 2007, a chapter consultant discovered a video showing Beta Psi members hitting other students with pledge paddles. After investigating the incident, Delta Tau Delta imposed corrective actions and sanctions on Beta Psi, including fines and a requirement to rewrite its bylaws to bring them current with existing Delta Tau Delta policies and procedures. In addition, James Russell (Russell), Delta Tau Delta's executive vice president, and Jack Kreman, Delta Tau Delta's director of chapter services, informed the Beta Psi members that "the practice of pledge family oriented activities must cease immediately." (Appellant's App. p. 107).
On September 22, 2010, the Smiths, individually and as representatives of Johnny's estate, initiated an action for the wrongful death of a child. On February 9, 2011, the Smiths filed an amended complaint against Delta Tau Delta, its local chapter Beta Psi, Wabash College, and Beta Psi's risk manager alleging hazing in violation of Ind. Code § 35-42-2-2, dram shop violations of I.C. § 7.1-5-7-8, and negligence. On July 29, 2011, Delta Tau Delta filed a motion for summary judgment claiming Beta Psi's individual members were not acting as agents of Delta Tau Delta and the national fraternity had not assumed a duty to the pledges of its local chapter to protect them from hazing and the danger of excessive alcohol consumption. Together with its motion, Delta Tau Delta designated, among other documents, Russell's affidavit
The Smiths now appeal. Additional facts will be provided as necessary.
The Smiths first contend that the trial court abused its discretion when it denied their motion to strike certain portions of Delta Tau Delta's designated evidence in support of the fraternity's motion for summary judgment. A trial court is vested with broad discretion in ruling on a motion to strike. In re Fitz, 778 N.E.2d 432, 436 (Ind.Ct.App.2002). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances supporting the judgment for relief. Id.
In their motion, the Smiths attempted to strike three documents designated by Delta Tau Delta as contrary to the requirements of Ind. Trial Rule 56. Focusing on Russell's sworn affidavit, the Smiths assert that because certain, specified paragraphs contradict the affiant's subsequent deposition testimony, these contradictory portions of the affidavit should be stricken. In addition, the Smiths contend that the uncertified and unsworn statements purportedly made by two freshmen pledges to investigating police officers are inadmissible in summary judgment proceedings. We will analyze each contention in turn.
With respect to Russell's affidavit, the Smiths assert that paragraphs 6, 11, 16, 17, and 18 contradict his sworn deposition testimony and therefore, these paragraphs should be stricken from his affidavit.
As a matter of course, parties routinely present Trial Rule 56 materials in support of or in opposition to motions for summary judgment attempting to demonstrate that there is or is not a dispute of material fact. Kroger Co. v. Plonski, 930 N.E.2d 1, 5 (Ind.2010). This is often accomplished through the presentation of affidavits by affiants claiming to have personal knowledge of the facts alleged. Id. It is quite ordinary and not at all surprising that the parties' affidavits or other Rule 56 materials compete with conflicting claims about the facts. Id. Affidavits submitted in support of or in opposition to a motion for summary judgment may be stricken for a variety of reasons, one of which is contradiction with the affiant's deposition testimony. Id.
In Paragraph 6 of his affidavit, Russell affirms that "[t]he International Organization does not handle the affairs of local chapters." (Appellant's App. p. 302). Contrasting this statement with Russell's deposition in which he explained the interaction between Delta Tau Delta and its local chapters, the Smiths assert that both
At first glance, Russell consistently stated in his deposition that
(Appellant's App. p. 242). However, a closer review of Russell's deposition testimony also reveals that Russell testified that Delta Tau Delta has a constitution, bylaws, and member responsibility guidelines that provide policies and rules "that speak to both individual and chapter expectations." (Appellant's App. p. 242). He stated that Delta Tau Delta requires its local chapters to comply with its rules and enforces its rules at the chapter level in a variety of ways. In addition, Russell admitted that Delta Tau Delta sends a chapter consultant to the individual chapters on a regular basis. During this visit, the consultant reviews the finances of the chapter and reports back to the national organization if any violations of the member responsibility guidelines are observed. We conclude that the outright denial of any interference in the affairs of the local chapter, as stated in paragraph 6 of the affidavit, contradicts Russell's more detailed deposition indicating an close interaction between Delta Tau Delta and the local chapter and therefore should be stricken.
In Paragraphs 16 and 17, Russell affirmed that
(Appellant's App. p. 41). Asked about these paragraphs in his deposition testimony, Russell confirmed the statements and added that even though Delta Tau Delta allows its individual local chapters to promulgate their own rules with respect to allowing alcohol on house premises and its use for those members over legal drinking age, these rules must be consistent with the organization's bylaws, member responsibility guidelines as well as state, local and university or college laws and regulations. Viewed in this light, we conclude that Russell's deposition testimony is more an elaboration of his affidavit, rather than an outright contradiction. Therefore, Paragraphs 16 and 17 were properly designated.
In Paragraph 18, Russell declared that "[t]he only enforcement power of the International Organization is suspending or expelling individual members or revoking chapters." (Appellant's App. p. 41) (emphasis added). Nevertheless, during his deposition, Russell admitted to several other enforcement powers. Specifically, Russell conceded that besides the enforcement powers enumerated in his affidavit, Delta Tau Delta could also impose fines on individual members, order a local chapter to attend additional educational training, temporarily suspend chapter operations, cease social events, and order the local chapter to refrain from using any alcohol for a certain period of time.
As part of the evidence in support of its motion for summary judgment, Delta Tau Delta designated two unsworn, uncertified, and unauthenticated statements purportedly made by two freshmen to investigating police officers. In determining a motion for summary judgment, a trial court can consider only material deemed appropriate by Ind. Trial Rule 56(E). Duncan v. Duncan, 764 N.E.2d 763, 766 (Ind.Ct.App.2002). That rule provides:
In ruling on a motion for summary judgment, the trial court will consider only properly designated evidence which would be admissible at trial. An unsworn statement or unverified exhibit does not qualify as proper evidence. Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind.Ct.App. 1996). Where the content of the uncertified exhibits is materially in issue, said exhibits will be insufficient and consideration of them is improper. Wallace v. Ind. Ins. Co., 428 N.E.2d 1361, 1365 (Ind.Ct. App.1981). Because Delta Tau Delta's two designated statements were not attached to an affidavit and were unsworn and unverified, they cannot now be considered in ruling on a motion for summary judgment. See Kronmiller, 665 N.E.2d at 627.
Delta Tau Delta now attempts to circumvent the requirements of T.R. 56(E) by asserting that the statements are admissible pursuant to Ind. Evidence Rule 803(8). Indiana Evidence Rule 803(8), contains certain exceptions to the prohibition against hearsay and provides that:
Here, because of its uncertified and unsworn nature, the precise characterization of the two statements is unclear. However, both statements commence with
(Appellant's App. p. 43).
In their amended complaint, the Smiths bring three claims against Delta Tau Delta. In Counts I and II, the Smiths allege violations of the hazing statute and the dram shop laws respectively. They assert liability on the part of Delta Tau Delta by way of an agency relationship with its local chapter. Specifically, they maintain that Delta Tau Delta, through the actions of their officers and agents at its local chapter, is responsible for the hazing of Johnny in violation of I.C. § 35-42-2-2 and continued to furnish Johnny alcoholic beverages at the Homecoming party resulting in Johnny's acute alcohol intoxication and death. With respect to Count III — a claim of negligence against Delta Tau Delta — the Smiths base their accusation on an assumption of duty, contending that Delta Tau Delta, "through their actions and promises to the parents of prospective fraternity members, assumed a duty to protect freshmen pledges, including Johnny, from hazing and excessive alcohol consumption which could result in bodily injury or death." (Appellant's App. pp. 154-55). The trial court granted summary judgment in favor of Delta Tau Delta on all three claims. The Smiths appealed, maintaining that the trial court erred in issuing summary judgment for Delta Tau Delta because a genuine issue of material fact exists with respect to the national fraternity's responsibility in all three Counts.
To be sure, we are presented with a very narrow legal issue today. The parties are not alleging that an actual violation of the hazing statute or dram shop laws occurred; rather, we are requested to determine whether the national fraternity assumed a duty to its pledges or an agency relationship existed with the local chapter which could propel Delta Tau Delta within the purview of liability if the perceived violations of the hazing statute and dram shop laws took place.
Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties' differing accounts of the truth ..., or if the undisputed facts support conflicting reasonable inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009). In reviewing a trial court's ruling on summary judgment,
We observe that in the present case, the trial court did not enter findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. Id. However, such findings offer this court valuable insight into the trial court's rationale for its decision and facilitate appellate review. Id.
First, the Smiths allege that Delta Tau Delta affirmatively assumed a duty to protect Johnny from hazing practices and the dangers of excessive alcohol consumption. A duty of care may arise where one party gratuitously or voluntarily assumes such a duty. Delta Tau Delta v. Johnson, 712 N.E.2d 968, 975 (Ind.1999). An assumption of duty creates a special relationship between the parties and a corresponding duty to act as a reasonably prudent person. Id. Although the existence and extent of an assumed duty is generally a question of fact for the jury, it may be resolved as a matter of law if the designated evidence is insufficient to establish such a duty. Id. The Restatement (Second) of Torts Section 324A(b) (2d ed. 1965) provides that one who undertakes to render services to protect a third person is subject to liability to the third person resulting from his failure to exercise reasonable care if he has undertaken to perform a duty owed by the other to the third person. "The actor must specifically undertake to perform the task he is charged with having performed negligently, for without the actual assumption of the undertaking there can be no correlative legal duty to perform the undertaking carefully." Am. Legion Pioneer Post No. 340 v. Christon, 712 N.E.2d 532, 535 (Ind.Ct.App. 1999), trans. denied. This means that the defendant must have undertaken the duty both "specifically and deliberately ... [I]t is also important that the party on whose behalf the duty is being undertaken relinquish control of the obligation; the party who adopts the duty must be acting `in lieu of the original party." Griffin v. Simpson, 948 N.E.2d 354, 360 (Ind.Ct.App. 2011), trans. denied.
Courts in all jurisdictions have addressed liability for fraternities stemming from injuries incurred on university or fraternity property with varying outcomes. The most prominent cases usually all involve activities surrounding initiation rituals, and more often than not, excessive fraternity-sponsored alcohol consumption.
In Delta Tau Delta, our supreme court held as a matter of law that the national fraternity did not gratuitously assume a duty to protect a female sexual assault
In contrast, the Louisiana Court of Appeals concluded in Morrison v. Kappa Alpha Psi Fraternity, 738 So.2d 1105, 1118 (La.Ct.App.1999), writ denied, that based upon the national fraternity's complex hierarchical system for controlling its local chapters' charters as well as its knowledge of prior hazing incidents at the particular local chapter, the national fraternity had undertaken a duty to regulate that local chapter to the extent necessary to protect Morrison from hazing. The court noted that on the national level, the fraternity had the authority to approve or revoke a local group's chapter. Id. On a regional level, Kappa Alpha Psi had the authority to supervise the activities of the local chapters and administer discipline for rule violations. Id. Also, the national fraternity had adopted a level of regional officers who were charged with the responsibility of auditing local chapters for compliance with fraternity, university, and local criminal rules and regulations. Id.
The Smiths designated evidence establishing that Delta Tau Delta promulgated rules and enforcement procedures focused on hazing and alcohol abuse. The evidence supports that from its inception, Delta Tau Delta has focused on regulating hazing and alcohol consumption by its chapter members and increased its involvement in the local chapters throughout the years, culminating in the detailed membership responsibility guidelines specifically dedicated to hazing and alcohol. Initially, Delta Tau Delta's rules prescribed the membership rituals to be carried out by the local chapters, its membership recruitment procedures, and the process to expel members who exhibit conduct unbecoming a member of the fraternity. With the compilation and enactment of member responsibility guidelines, Delta Tau Delta included specific provisions clarifying its position with respect to hazing, alcohol and drugs, and other abusive behavior. In particular, besides the general definition of hazing, the national fraternity elaborated that "[n]o member or pledge/associate/new member/novice shall permit, tolerate, encourage or participate in `drinking games.'" (Appellant's App. p. 228). Together with these specific behavior provisions and their violations, Delta Tau Delta included enforcement criteria in the member responsibility guidelines, varying from suspension of the member to fines and educational programming, as well as an enforcement program, in which the national fraternity emphasized that it needs to be informed of "potential violations ... as soon as possible by anyone with knowledge thereof either to the chapter advisor, division vice president, or to the Fraternity's Central Office." (Appellant's App. p. 231). At the conclusion of these guidelines, Delta Tau Delta included a verification program, in
Subsequent to the initial adoption of the member responsibility guidelines, in August 1990, and restated in 2007, Delta Tau Delta added very detailed policy statements on alcohol and substance abuse. In these statements, Delta Tau Delta mandated the completion by each new member by the end of his initiation term of an alcohol education program — GreekLifeEdu — as well as the collaboration between the local chapter and a local alcohol and substance treatment organization. At the same time, Delta Tau Delta instituted Delts Talking About Alcohol, an educational program required for all pledges on how to recognize the signs of acute alcohol poisoning. In addition, pledge family-oriented activities, alcohol at pledge activities, and drinking games — like the ones Johnny participated in during the Homecoming party — were expressly prohibited.
Although Delta Tau Delta enacted its comprehensive provisions on hazing and alcohol in its member responsibility guidelines, these are not mere guidelines as would be understood in common parlance in the sense of being voluntary. Rather, a sophisticated compliance and enforcement mechanism ensured acquiescence from the local chapters. Through its chapter consultants and chapter advisors, Delta Tau Delta remained apprised of the daily activities in their local chapters. Not only were chapter advisors required to report conduct violations, they also were responsible to ensure the local chapter complied with any enforcement and corrective mechanisms mandated by the national fraternity. More specifically, designated evidence reveals that the chapter advisor was present at the fraternity house on the evening of October 3, 2008 and again on the day of the Homecoming party.
While it is clear that the sophisticated nature of the rules and the lengthy, explicitly phrased member responsibility guidelines with its enforcement mechanisms indicate some oversight by the national fraternity in policing its collegiate chapters, there remains a genuine issue of material fact whether this level of influence alone is sufficient to find that Delta Tau Delta assumed a duty to protect its pledges from hazing and excessive alcohol consumption. As such, the undisputed material facts support conflicting reasonable inferences which make the grant of summary judgment inappropriate. Therefore, we reverse the trial court's grant of summary judgment in favor of Delta Tau Delta.
In a related argument, the Smiths contend that the trial court erred in concluding as a matter of law that Delta Tau Delta is not responsible for violations of the hazing statute and the dram shop laws as it did not have an agency relationship with its local chapter. To be liable under this theory, an agency relationship must exist. Foster, 567 N.E.2d at 872. Agency is a relationship which results from manifestation of consent by one party to another. Id. The elements of agency are consent and control. Id. An agent must acquiesce to the arrangement, and be subject to the principal's control. Id. Where apparent authority is at issue, it must be initiated by a manifestation of the principal. Swanson v. Wabash College, 504 N.E.2d 327, 331 (Ind.Ct.App.1987). In other words,
Id. at 331-32.
In Ballou v. Sigma Nu Gen.'l. Fraternity, 291 S.C. 140, 352 S.E.2d 488, 496 (S.C.Ct.App.1986), the court recognized the fraternity's implied consent to the agency relationship with its local chapter after a pledge died of alcohol intoxication during a mandatory initiation party (hell night). Looking at the scope of the agency, the court focused on the following:
Id.
Delta Tau Delta's constitution, bylaws, and member responsibility guidelines establish that the national fraternity prescribed rules and requirements for recruiting and initiating new members, and for approved conduct in daily activities. It explicitly prohibited the local chapter to engage in hazing, pledge family activities, and to provide alcohol to pledges. Deviation from these rules and guidelines is penalized by sanctions and suspensions. The national fraternity further controlled the activities of its local chapter with respect to hazing and alcohol consumption through its enforcement procedures, implemented by the chapter consultants and advisors. There is designated evidence that the local chapter appeared to submit to and comply with the national fraternity constitution, bylaws, guidelines, and administered sanctions. As with the assumption of duty, we likewise conclude that there is a genuine issue of material fact whether an agency relationship existed between Delta Tau Delta and its local chapter.
As an alternative argument, Delta Tau Delta contends that because the "undisputed evidence establishes that Johnny [was] more than 50% at fault for his own damages," the trial properly granted summary judgment pursuant to the Indiana Comparative Fault Act. (Appellee's Br. p. 24).
Under the Comparative Fault Act, liability is to be apportioned among persons whose fault caused or contributed to causing the loss in proportion to their percentages of fault as found by the jury. See I.C. § 34-51-2-8. Fault apportionment is uniquely a question of fact to be decided by the jury. McKinney v. Pub. Serv. Co. of Ind., Inc., 597 N.E.2d 1001, 1008 (Ind. Ct.App.1992), trans. denied. At some point, the apportionment of fault may become a question of law for the court. But
We have not reached that point yet. Although the undisputed designated evidence establishes that Johnny was required to attend the Homecoming party and pledge family drink night, there is no evidence before us that Johnny either voluntarily or was forced to consume the amount of alcohol he did.
Based on the foregoing, we hold that the trial court abused its discretion by admitting certain paragraphs of Russell's affidavit and by admitting two unsworn, unverified, and uncertified statements. Additionally, we find that the trial court erred in granting Delta Tau Delta's motion for summary judgment as there is a genuine issue of material fact that (1) an agency relationship existed between the national fraternity and its local chapter and (2) the national fraternity assumed a duty to protect its freshmen pledges.
Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.
BARNES, J. concurs.
BAKER, J. concurs in part and in result with separate opinion.
BAKER, Judge, concurring in part and in result.
While I concur in the result reached by the majority and in most of its analysis, I write separately to detach myself from a conclusion reached by the majority pertaining to the motion to strike. More particularly, regarding Paragraph 6 of Russell's affidavit stating that "[t]he International Organization does not handle the affairs of local chapters," appellant's app. p. 302, I cannot agree that this is an "outright denial of any interference in the affairs of the local chapter," that Russell contradicted in his subsequent deposition testimony. Op. at 333 (emphasis added).
To be sure, Russell's deposition testimony is consistent with the statement in his affidavit that Delta Tau Delta does not handle the affairs of the local chapter. For instance, Russell testified that Delta Tau Delta did not tell the local chapters "who they can pledge ... what people they elect ... we do not control their funds ... we do not get involved in housing arrangements...." Appellant's App. p. 242. Moreover, I cannot agree that Russell's testimony regarding Delta Tau Delta's constitution, bylaws, and guidelines, coupled with the presence of enforcement mechanisms, directly contradicts his affidavit such that the trial court abused its discretion when it denied the Smiths' request to strike Paragraph 6.
