R. Kinsey Brooks, Susan K. Brooks v. Bank of Geneva , 105 N.E.3d 197 ( 2018 )

FILED
OPINION ON REHEARING Jun 15 2018, 8:47 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Andrew L. Teel Scott E. Shockley
Daniel J. Skekloff James R. Williams
Sarah L. Schreiber Christopher L. Bills
Haller & Colvin, P.C. Nicholas M. Tokar
Fort Wayne, Indiana Michael L. Wilhelm
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
R. Kinsey Brooks, Susan K. June 15, 2018
Brooks, Court of Appeals Case No.
Appellants-Defendants, 01A05-1709-MF-2174
Appeal from the Adams Circuit
v. Court
The Honorable Chad E. Kukelhan,
Bank of Geneva, Judge
Appellee-Plaintiff. Trial Court Cause No.
01C01-1605-MF-16
Barnes, Judge.
[1] Bank of Geneva (“the Bank”) petitions for rehearing following our decision in
Brooks v. Bank of Geneva, No. 01A05-1709-MF-2174 (Ind. Ct. App. Mar. 21,
2018). We issue this opinion on rehearing but reaffirm our original decision in
all respects.
Court of Appeals of Indiana | Opinion on Rehearing 01A05-1709-MF-2174 | June 15, 2018 Page 1 of 3
[2] The Bank contends that we should not have stated in the last sentence of the
opinion, “The Brookses’ claim for abuse of process remains pending.” Id., slip
op. at 13. The Bank asserts that the trial court granted summary judgment on
this claim and that the Brookses made no argument on appeal regarding this
claim. We have re-reviewed the record on appeal and the trial court’s summary
judgment order. We first note that the Bank’s motion for partial summary
judgment only sought a judgment of foreclosure and in rem damages against
the Brookses; it was completely silent regarding the Brookses’ counterclaim for
abuse of process.1 The trial court’s summary judgment order does contain some
“findings” that appear to reject the abuse of process counterclaim, but there is
no express judgment against the Brookses on the counterclaim. Rather, the
judgment is purely a decree of foreclosure against the Brookses’ property.
When summary judgment is only partially granted, “The court shall designate
the issues or claims upon which it finds no genuine issue as to any material
facts.” Ind. Trial Rule 56(C). It is not clear to us that the trial court’s summary
judgment order fulfilled this requirement.
[3] Moreover, the trial court stated in its order that “from the pleadings alone it is
clear that Bank of Geneva is not pursuing any fraud claims against the Brooks
and does not have an ulterior motive.” App. Vol. III p. 110. Our review of the
Bank’s complaint indicates that, while it only made factual allegations against
1
It appears the Bank’s memorandum of law in support of partial summary judgment may have referenced
the Brookses’ abuse of process counterclaim, but that memorandum is not in the record before us.
Court of Appeals of Indiana | Opinion on Rehearing 01A05-1709-MF-2174 | June 15, 2018 Page 2 of 3
the Summersetts on the fraud claims, it sought treble damages for fraud
“against the Defendants” without distinguishing between the Brookses and the
Summersetts. App. Vol. II p. 19. We believe the trial court’s view of the
complaint is incorrect. Given the relief actually requested in the Bank’s motion
for partial summary judgment and the language in the trial court’s partial
summary judgment order, some of which was incorrect, we adhere to the
statement in our original opinion that the abuse of process counterclaim is still
pending.
[4] We also briefly address the Bank’s contention that there is a material question
of fact regarding the release of the Summersetts’ mortgage, noting there is a
dispute as to whether the Summersetts actually paid off the loan that mortgage
secured. For purposes of the Brookses’ status as sureties, whether the loan was
paid off is irrelevant. It was the undisputed fact of releasing the Summersetts’
mortgage that caused the release of the Brookses’ mortgage, not whether the
underlying loan was actually paid off. The release exposed the Brookses and
their property to much greater potential liability than they signed up for when
they agreed to mortgage their land with the understanding that the Summersetts
were mortgaging their land as well. As to the Bank’s rehearing argument
regarding the change in payment terms of the Summersett note from monthly to
semi-annually, we have nothing further to add to what we said in our original
opinion.
Najam, J., and Mathias, J., concur.
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