MAY, Judge.
Harold J. Klinker
The trial court should have considered Klinker's affidavit in opposition to Bank's summary judgment motion, but summary judgment for Bank nevertheless was appropriate. We accordingly affirm.
Klinker borrowed money from Bank to purchase vehicles for his used car dealership, Trucks Unlimited. The loan agreements required Klinker to pay money to Bank from the proceeds of each vehicle sold, and Klinker personally guaranteed payment. When Klinker did not pay on his loan, Bank audited Klinker's dealership. Klinker could not account for thirty-one vehicles for which Bank had provided purchase money, and therefore Klinker and Trucks Unlimited were in breach of those loan agreements.
On March 17, 2009, based on the findings from the audit, Bank filed a complaint against Klinker and various other parties.
Bank filed a motion for summary judgment on November 25, 2009, and Klinker responded December 23. On January 19, 2010, the trial court granted summary judgment in favor of Bank on all counts, and noted:
(App. at 187.) Klinker filed a Motion to Reconsider,
The trial court excluded Klinker's affidavit on the ground it was not properly designated in his memorandum in opposition to Bank's motion for summary judgment. The trial court then concluded that, without that affidavit, Klinker had not
The designation requirement of Indiana Trial Rule 56(C) is intended to aid the efficiency of summary judgment proceedings by ensuring that the parties and the trial and appellate courts are not required to search the record to discern whether there is an issue of material fact. Nobles v. Cartwright, 659 N.E.2d 1064, 1070 (Ind.Ct.App.1995). The rule provides:
T.R. 56(C). The designation requirement is met if the trial court is aware of the materials on which a party relies when opposing a motion for summary judgment. Mid State Bank v. 84 Lumber Co., 629 N.E.2d 909, 913 (Ind.Ct.App.1994).
Klinker attached one document, his own eight-paragraph affidavit, to his memorandum in opposition to Bank's motion for summary judgment. The trial court excluded Klinker's affidavit on the ground it was not properly designated in his memorandum. We hold, under these facts, the designation was sufficient.
Klinker's affidavit was the only attachment to Klinker's memorandum. In his memorandum, Klinker made reference to his affidavit: e.g., "Joe's affidavit establishes...." (App. at 182.) As there was only one attachment, the references to "Joe's affidavit" in the memorandum clearly referred to the attached document entitled, "Affidavit of Harold Joe Klinker.". Thus, the court had to be aware of the materials Klinker relied on in his memorandum. See, e.g., Justice v. Clark Mem'l Hosp., 718 N.E.2d 1217, 1219 n. 2 (Ind.Ct. App.1999) ("As long as a trial court is aware of the materials a party relies upon in opposition to a motion for summary judgment, the designation requirement is met."). In addition, as the affidavit contained only eight paragraphs and spanned only two pages, this is not a situation in which Klinker's reference to his affidavit as a whole lacked the "specificity" we expect of Trial Rule 56 designations. See, e.g., 84 Lumber Co., 629 N.E.2d at 913 (three-page affidavit attached to motion for summary judgment was properly designated for consideration despite the lack of a specific pleading entitled, "Designated Materials"). Therefore, under these facts, the court erred by refusing to consider Klinker's affidavit.
Even if Klinker's affidavit had been considered, summary judgment for Bank was proper. Summary judgment is appropriate if 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." T.R. 56(C). The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind.Ct. App.2007), trans. denied. If the moving party meets these two requirements, the burden shifts to the non-movant to set
"A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue." Id. "On appeal, we are bound by the same standard as the trial court, and we consider only those matters which were designated at the summary judgment stage." Id. We will liberally construe the non-movant's designated evidence to ensure he is not improperly denied his day in court. Ind. Dept. of Rev. v. Caylor-Nickel Clinic, 587 N.E.2d 1311, 1313 (Ind.1992).
Bank alleges Klinker committed fraud in violation of Ind.Code §§ 35-43-5-4 and 35-43-5-8, and Bank suffered damages.
Therefore, Bank was required to prove the element of intent in order to be successful in their claim.
Generally, issues concerning a party's state of mind are improper for summary judgment. Morgan Co. Hosp. v. Upham, 884 N.E.2d 275, 283 (Ind.Ct.App. 2008). However, fraudulent intent "may be inferred from various factors or `badges of fraud' present in a given transaction." Diss v. Agri Bus. Intern., Inc., 670 N.E.2d 97, 99-100 (Ind.Ct.App.1996) (internal citations omitted). These factors include:
Otte v. Otte, 655 N.E.2d 76, 81 (Ind.Ct. App.1995), reh'g. denied. "As no single indicium constitutes a showing of fraudulent intent per se, the facts must be taken together to determine how many badges of fraud exist and if together they amount to a pattern of fraudulent intent." Id.
In its Motion for Summary Judgment, Bank asserted Klinker had engaged in three of the badges of fraud: transfer of property that renders debtor insolvent or
Klinker's affidavit did not raise genuine issues of material fact. "A fact is material if it tends to facilitate resolution of any of the issues either for or against the party having the burden of persuasion on that issue." Brandon v. State, 264 Ind. 177, 180, 340 N.E.2d 756, 758 (1976), reh'g denied. "However, despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation." Hayes v. Second Nat'l Bank of Richmond, 176 Ind.App. 299, 302, 375 N.E.2d 647, 650 (1978) (citations omitted), reh'g denied. In other words, a factual issue is "material" if it bears on the ultimate resolution of relevant issues, while a factual issue is "genuine" if it is not capable of being conclusively foreclosed by reference to undisputed facts. Stuteville v. Downing, 181 Ind.App. 197, 198-99, 391 N.E.2d 629, 631 (Ind.Ct.App.1979).
Self-serving statements do not create a genuine issue of material fact to preclude the grant of summary judgment. Clark v. Estate of Slavens, 687 N.E.2d 246, 251 (Ind. 1997), abrogated on other grounds by Indiana Farmers Mut. Ins. Co. v. Richie, 707 N.E.2d 992 (Ind.1999). "[T]ransparent contentions, mere pleading allegations, and self-serving unverified statements of facts, as opposed to the movant's controverting evidentiary materials cannot defeat a motion for summary judgment." Raymundo v. Hammond Clinic Ass'n, 449 N.E.2d 276, 282 (Ind. 1983).
Klinker's affidavit states:
(App. at 181.) We conclude paragraphs 1, 2, 3, 6, and 7 are transparent, self-serving contentions and Klinker has not cited evidence to support those assertions. Paragraphs 4 and 5 are attempts to counter the allegations set forth by Bank but, again, no supporting evidence is cited. Finally, paragraph 8 supports Bank's position, as it amounts to an admission Klinker was in default. Klinker's summary judgment memorandum argues the points set forth in his affidavit, but does not designate any real evidence to support his assertions. Therefore, the assertions in Klinker's affidavit and memorandum in opposition to Bank's motion for summary judgment do not create a genuine issue of material fact as is required to defeat Bank's motion for summary judgment.
The trial court erred in excluding Klinker's affidavit, but summary judgment was proper because even with Klinker's affidavit, there was no genuine issue of material fact.
Affirmed.
ROBB, J., and VAIDIK, J., concur.
