RILEY, Judge.
Appellant-Plaintiff, Lydia Lanni (Lanni), appeals the trial court's grant of Appellees-Respondents', the National Collegiate Athletic Association, et al.,
We reverse in part, affirm in part, and remand for further proceedings.
Lanni raises three issues on appeal, which we consolidate and restate as the following two issues:
This cause comes before us as a result of a civil tort action filed by Lanni against the NCAA, the University of Notre Dame Du Lac (Notre Dame), and the United States Fencing Association (USFA). Lanni, a spectator, was struck in the left eye by a fencing sabre causing a severe injury while at an allegedly NCAA sanctioned fencing match at Notre Dame. On February 8, 2012, Lanni filed her Complaint, alleging that the NCAA was negligent by (1) failing to undertake a hazard and risk analysis prior to commencing the fencing match, (2) failing to select and/or supervise qualified officials, and (3) failing to supervise the competition to insure hazards and
On April 3, 2012, after requesting two extensions of time to file a responsive pleading, the NCAA filed its Motion to Dismiss Lanni's Complaint and/or Motion for Summary Judgment (the Motion). In its Motion, the NCAA asserted that Lanni's Complaint should be dismissed pursuant to Indiana Trial Rule 12(B)(6) and "additionally," it was entitled to summary judgment as a matter of law pursuant to Indiana Trial Rule 56 because the undisputed evidence established that the NCAA was not negligent or at fault for Lanni's injuries. (Appellant's App. p. 18). Attached to the Motion was the NCAA's brief in support and the affidavit of Kelly Whitaker Shaul (Shaul), the NCAA's Fencing Championships Manager.
On April 20, 2012, Lanni filed a motion for stay of briefing with respect to NCAA's Motion, requesting, in pertinent part:
(Appellant's App. p. 37). On April 24, 2012, the trial court granted Lanni's request for a change of judge and on May 23, 2012, the appointment of a special judge was entered. On May 4, the NCAA opposed Lanni's request to stay the briefing schedule and on May 29, 2012, after the special judge was appointed, the trial court issued its order denying Lanni's motion for stay and set the NCAA's Motion for a hearing on July 9, 2012. On May 31, 2012, Lanni served the NCAA with her first set of interrogatories.
On June 13, 2012, Lanni filed a motion for extension of time to respond to the NCAA's Motion, asserting that discovery is still on-going "regarding factual matters relative to [Lanni's] Complaint." (Appellant's App. p. 56). Two days later, on June 15, 2012, the NCAA filed its motion to stay discovery pending the trial court's ruling on its motion for summary judgment, as well as a brief in opposition to Lanni's motion for extension of time and in support of its own motion to stay discovery. On July 2, 2012, Lanni filed a response to NCAA's opposition to extend time and to NCAA's motion to stay discovery, as well as a separate motion to strike Shaul's affidavit.
On July 5, 2012, the trial court entered an order granting NCAA's motion to stay discovery pending a ruling on its motion for summary judgment; yet, the trial court struck the following language from the NCAA's proposed order: "[Lanni] is prohibited from filing any response or submitting any evidence in response to the [m]otion for [s]ummary [j]udgment." (Appellant's App. p. 136). At the same time, the trial court denied Lanni's motion for extension of time to respond to the NCAA's Motion. On July 6, 2012, the NCAA responded to Lanni's motion to strike Shaul's affidavit.
On July 9, 2012, prior to the trial court's hearing on the NCAA's Motion, Lanni filed her designation of materials. At the hearing, Lanni objected to the trial court's conversion of NCAA's Motion to a motion for summary judgment because she had not received any notice that the trial court would treat the combined Motion as a summary judgment motion and because of her lack of opportunity to conduct discovery. Later that same day, the trial court issued an Order granting NCAA's Motion, entering summary judgment in favor of NCAA, as well as an Order denying Lanni's motion to strike Shaul's affidavit.
Lanni now appeals. Additional facts will be provided as necessary.
Lanni's main argument focuses on the trial court's treatment of the NCAA's Motion which combined a motion based on T.R. 12(B)(6) with a motion based on T.R. 56. Specifically, she claims that pursuant to the language of T.R. 12(B)(6), the trial court was required to notify
Indiana Trial Rule 12(B)(6) (emphasis added) provides, in pertinent part, that:
We have previously analyzed the interplay between a T.R. 12(B)(6) motion and a T.R. 56 motion in Azhar v. Town of Fishers, 744 N.E.2d 947, 949 (Ind.Ct.App.2001). In Azhar, this court was asked to evaluate whether the trial court caused prejudice to Azhar when it converted the Town's motion to dismiss into a motion for summary judgment without specific prior notice to Azhar. Azhar contended that she was surprised by the trial court's action and that the surprise resulted in a lack of reasonable
Id. at 950-51 (Emphasis added, internal footnote omitted). Although not explicitly stated, Lanni's argument mainly focuses on the second element of the Azhar test: she claims that she was never allowed the opportunity to conduct any discovery. In Azhar, we referenced the approximate three month time period between the filing of the motion to dismiss and the hearing as "ample" time to allow Azhar to (1) move to exclude the to ascertain the evidence in opposition to the motion; and/or (3) submit materials in opposition thereto. Id.
We reached a different result in two older cases where trial courts considered matters outside the pleadings and converted the T.R. 12(B)(6) motions into motions for summary judgment without holding hearings or giving the parties notice that they were doing so. In both instances, this was held to be reversible error because the trial court did not allow the opposing parties a reasonable opportunity to present all material made pertinent to such a motion by T.R. 56.
Specifically, in Carrell v. Ellingwood, 423 N.E.2d 630, 632 (Ind.Ct.App.1981), trans. denied, Ellingwood filed a motion to dismiss Carrell's complaint to contest a will. Carrell filed objections to the motion, accompanied by an affidavit. Id. That same day, the trial court, without notice, hearing, or any other proceeding, granted Ellingwood's motion. Id. Carrell appealed,
Likewise, in Foster v. Littell, 155 Ind.App. 627, 293 N.E.2d 790, 791 (1973), Littell filed a motion to dismiss based on T.R. 12(B)(6). Foster filed an opposition, together with an affidavit. Id. At the hearing on the motion to dismiss, Foster's counsel requested to be informed whether or not the motion would be treated as a motion for summary judgment. Id. That request was made so that there would be ample time, if needed, to prepare materials in accordance with the summary judgment standards. Id. Foster, however, was never informed that the motion to dismiss had become one for summary judgment until later when he learned by surprise that a judgment had been entered against him. Id. at 791. Foster appealed. We concluded that:
Id. at 792 (internal citations omitted).
Here, the evidence reflects that the NCAA's Motion, together with Shaul's affidavit, was filed on April 3, 2012. Because evidence outside the pleading was presented and not excluded by the trial court, we find that the trial court's treatment of the NCAA's Motion as a motion for summary judgment was proper. However, due to this conversion from a T.R. 12(B)(6) motion to a T.R. 56 motion, the trial court was required to give "all parties reasonable opportunity" to present all pertinent material. See also Ayres, 493 N.E.2d at 1233 (the trial court's failure to give explicit notice of its intended conversion is reversible error only if a reasonable opportunity to respond is not afforded to a party and a party is thereby prejudiced).
Eighteen days after the NCAA's Motion, on April 20, 2012, Lanni filed a motion for stay of briefing schedule, asserting that discovery was still in the early stages and that discovery to all parties would be sent out within the month. Additionally, Lanni objected to the inclusion of Shaul's affidavit in NCAA's Motion and the NCAA's early request for summary judgment. The NCAA opposed Lanni's motion for stay and, on May 29, 2012, the trial court denied Lanni's motion to stay the briefing. Two days later, on May 31, 2012, Lanni served the NCAA with her first set of interrogatories.
On June 13, 2012, Lanni filed a motion for extension of time to respond to NCAA's Motion. Two days later, the NCAA moved to stay discovery pending the trial court's ruling on its Motion, to which Lanni objected. On July 5, 2012, the trial court granted the NCAA's motion to stay discovery, and on July 9, 2012, the
Although Lanni self-characterizes her initial motion as a motion for stay of briefing, a review of the reasons set forth in Lanni's April 20, 2012 motion establishes that it is more properly treated as a motion for alteration of time, pursuant to T.R. 56(I).
Disputing the existence of any "cause" for Lanni's motion for alteration of time, the NCAA argues that Lanni's discovery requests did not bear "on issues material to the [M]otion." (Appellee's Br. p. 14). "As a general proposition, it is improper for a court to grant summary judgment while reasonable discovery requests that bear on issues material to the motion are still pending." Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 698 (Ind.2000). In this light, the NCAA argues that Lanni's discovery requests "are nothing more than generic form requests" without focusing on the main issue raised in NCAA's Motion, i.e., that the NCAA had no involvement in the Notre Dame fencing match. (Appellee's Br. p. 15). However, the NCAA's self-serving interpretation of what issues are "material" to the cause should not be prevailing; rather, the reasonableness of the request should be the initial predominant factor where discovery is in its early stages. Here, the NCAA's motions, granted by the trial court, effectively prevented Lanni from conducting any discovery, let alone any reasonable discovery.
Based on the circumstances before us, it is clear that the trial court abused its discretion when it denied Lanni's April 20, 2012 motion for alteration of time. By its denial, the trial court effectively deprived Lanni of a reasonable opportunity to present any material made pertinent to a T.R. 56 motion. See Carrell v. Ellingwood, 423 N.E.2d at 634. By its subsequent grant of the NCAA's motion to stay discovery, the trial court further negated any opportunity to present relevant materials in opposition to the motion for summary judgment. Therefore, because the trial court did not follow the directives for converting a T.R. 12(B)(6) motion to a T.R. 56 motion, we reverse the trial court's summary judgment in favor of the NCAA.
Lastly, Lanni contends that the trial court abused its discretion when it refused to strike Shaul's affidavit, which was attached to the NCAA's Motion. A trial court has broad discretion in ruling on a motion to strike. Norfolk Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 100 (Ind.Ct.App.2005), trans. denied. Generally, we review a trial court's decision to admit or exclude evidence for an abuse of
Pursuant to Indiana Trial Rule 56(E) "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Lanni now asserts that Shaul's "self-serving" affidavit should be stricken because it lacks foundation, is incomplete, and is based on speculation. She specifically focuses her attention on paragraphs 4, 6, 8, 9, and 10, which state as follows:
(Appellant's App. pp. 28-30).
Contrary to Lanni's portrayal, we cannot conclude that the statements contained in Shaul's affidavit amount to conclusory lay opinions premised on speculation. In her affidavit, Shaul avers that she is the championships manager for fencing at the NCAA and verifies that her testimony is based upon personal knowledge. She attests to factual matters with respect to the NCAA's involvement and participation in fencing competitions. The affidavit does not contain any internal inconsistencies or evasive language. While the affidavit might contain some generalized statements, these statements are nevertheless credible and clearly based on her personal knowledge due to the position she holds and as such, are admissible evidence.
However, although Lanni complains that Shaul's affidavit is incomplete and that the "NCAA was under an affirmative obligation to tell the entire story," she fails to present us with any references to case law establishing this affirmative obligation. We remind Lanni that "a party opposing the motion [for summary judgment] shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment[.]" See T.R. 56(C). Therefore, if there was a more complete story to tell, Lanni should have presented it to the court pursuant to the rules for summary judgment and thereby create an issue of material fact. We conclude that the trial court did not abuse its discretion when it admitted Shaul's affidavit.
Based on the foregoing, we conclude that the trial court erred when it converted the NCAA's Motion into a motion for summary judgment without awarding Lanni a reasonable opportunity to present relevant materials in opposition to the motion for summary judgment; and the trial court did not abuse its discretion by denying Lanni's motion to strike Shaul's affidavit, designated by the NCAA.
Reversed in part, affirmed in part, and remanded for further proceedings.
BRADFORD, J. and BROWN, J., concur.