Lydiа LANNI, Appellant-Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al., Appellees-Defendants.
No. 49A05-1208-CT-392.
Court of Appeals of Indiana.
May 22, 2013.
989 N.E.2d 791
Marc T. Quigley, Libby Y. Goodknight, Catherine E. Sabatine, Krieg DeVault, LLP, Indianapolis, IN, Attorneys for Appellees.
OPINION
RILEY, Judge.
STATEMENT OF THE CASE
Appellant-Plaintiff, Lydia Lanni (Lanni), appeals the trial court‘s grant of Appellees-Respondents‘, the National Collegiate Athletic Association, et al.,1 (NCAA), combined alternative Motion to Dismiss Lanni‘s Complaint and/or Motion for Summary Judgment.
We reverse in part, affirm in part, and remand for further proceedings.2
ISSUES
Lanni raises three issues on appeal, which we consolidate and restate as the following two issues:
- Whether the trial court erred when it converted the NCAA‘s combined alternative Motion to Dismiss Lanni‘s Complaint and/or Motion for Summary Judgment into a motion for summary judgment; and
- Whether the trial court abused its discretion by denying Lanni‘s motion to strike an affidavit designated by the NCAA.
FACTS AND PROCEDURAL HISTORY
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 selеct 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
On April 20, 2012, Lanni filed a motion for stay of briefing with respect to NCAA‘s Motion, requesting, in pertinent part:
4. As litigation has just commenced, discovery is in the early stages. [Lanni] is in the process of drafting and issuing discovery to all Defendants, which is expected to be sеnt out within the month.
5. Until the appointment of a new judge, [Lanni‘s] response to [NCAA‘s] [M]otion should be stayed.3
6. Technically, [NCAA] has requested two forms of relief. A motion pursuant to [T.R. 12(B)(6) ] and a motion pursuant to [T.R. 56(C)]. [Lanni] will file the appropriate responses separately to the two motions, as procedurally, the two motions have different standards for analysis. [Lanni] does not concede the Affidavit filed by [NCAA] should be allowed relative to the [T.R. 12(B)(6) ] motion.
7. Altеrnatively, it is premature to file a summary judgment given the fact the discovery regarding factual matters relative to [Lanni‘s] Complaint will be issued. “Moreover, we have frequently emphasized the critical importance of discovery in the summary judgment context ... As we have stressed, however, summary judgment should not be granted while the party opposing judgment timely seeks discovery of potentially favorable information.” Schering Corp. v. Homes [Home] Ins. Co., 712 F.2d 4, 10 (2nd Cir.1983).
(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 mоtion to stay discovery, as well as a separate motion to strike Shaul‘s affi-
davit.
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: “[Lаnni] 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.
DISCUSSION AND DECISION
I. NCAA‘s Motion
Lanni‘s main argument focuses on the trial court‘s treatment of the NCAA‘s Motion which combined a motion based on
(6) Failure to state a claim upon which relief can be granted, which shall include failure to name the real party in interest under Rule 17;
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If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
We have previously analyzed the interplay between a
able
Ind. Trial Rule 12(B) provides that a motion to dismiss fоr failure to state a claim shall be treated as a motion for summary judgment when “matters outside the pleading are presented to and not excluded by the trial court.” Where a trial court treats a motion to dismiss as one for summary judgment, the court must grant the parties a reasonable opportunity to present T.R. 56 materials. SeeT.R. 12(B) ; Biberstine v. New York Blower Co., 625 N.E.2d 1308, 1313 (Ind.Ct.App.1993), trans. dismissed. The trial court‘s failure to give explicit notice of its intended conversion of a motion tо dismiss to one for summary judgment is reversible error only if a reasonable opportunity to respond is not afforded a party and the party is thereby prejudiced. Ayres v. Indian Heights Volunteer Fire Department, 493 N.E.2d 1229, 1233 (Ind.1986).
Our review of the relevant cases discloses at least [three] considerations pertinent to a determination of whether a trial court‘s failure to give express notice deprives the nonmovant of a reasonable opportunity to respond with T.R. 56 materials. First, we consider whether the movant‘s reliance on evidence outside the pleadings should have been so readily apparent that there is no question that the conversion is mandated by
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 clаims 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 casеs where trial courts considered matters outside the pleadings and converted the
Specifically, in Carrell v. Ellingwood, 423 N.E.2d 630, 632 (Ind.Ct.App.1981), trans. denied, Ellingwood filed a motiоn 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 appeal-
ed,
Likewise, in Foster v. Littell, 155 Ind. App. 627, 293 N.E.2d 790, 791 (1973), Littell filed a motion to dismiss based on
[i]nasmuch as [Foster] had filed an affidavit and [Littell] had filed a memorandum with his motion and the affidavit and memorandum are part of the record in the cause before the trial judge ruled on the respective motions and were not excluded by the record of the trial court, it is our opinion that the affidavit being matter outside the pleadings, falls with the guidelines of [T.R.] 12(B)(6), and ultimately came under [T.R.] 56. The court should have given reasonable opportunity to both parties to present all material made pertinent to such a motion by [T.R.] 56.
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
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
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 сourt 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 prevаiling; 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
II. Shaul‘s Affidavit
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
4. I have read [Lanni‘s] Complaint for Damages. In her Complaint, Lanni alleges that the NCAA, through its agents, including but not limited to the NCAA Men‘s and Women‘s Fencing Committee and Regional Advisory Committeеs, was responsible for operating the Midwest Regional Fencing Competition on March 7, 2010 at the University of Notre Dame Du Lac. These facts alleged by Lanni are incorrect.
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6. The NCAA did not have any involvement in any fencing competition that may have occurred on March 7, 2010, including any fencing competition at Notre Dame. To the extent a fencing competition was held at Notre Dame on March 7, 2010, the NCAA did not sanction any suсh event. The NCAA did not participate in any such event. The NCAA did not supervise any such event. The NCAA did not select the officials for any such event. The NCAA had no other involvement with any such event.
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8. The only other fencing competitions in which the NCAA has limited involvement in a given year are the NCAA Regional fencing competitions. There currently are four NCAA Regional fencing competitions (Midwest, Mid-Atlantic/South, Northeast, and West). The NCAA Regional fencing competitions take place two weeks before the National Collegiate Men‘s and Women‘s Fencing Championships. The NCAA‘s involvement in the NCAA Regional fencing competitions is through its four Regional Advisory Committees, one for each region. The Regional Advisory Committees may serve on the bout committees at the NCAA Regional fencing competitions if the bout committees convene. The Regional Advisory Committees answer questions that the host institutions may have, work with the national head official to secure a regional head official, address protests that arise in bouts and tabulate the scores to determine which student athletes will move on to compete in the National Collegiate Men‘s and Women‘s Fencing Championships.
9. The NCAA uses set rotations (as recommended by the institutions in each region) as to where the NCAA Regional fencing competitions will take place. The institutions hosting the NCAA Regional fencing competitions are responsible for organizing, running and supervising the events. In 2010, the NCAA‘s Regional fencing competitions took place at the following institutions:
- Midwest Region: Northwestern University on March 13-14, 2010;
- Mid-Atlantic/South Region: Drew University on March 13, 2010;
Northeast Region: Brown University on March 14, 2010; and - West Region: University of California, San Diego on March 13, 2010.
10. If a school, group of schools or conference put on competitions prior to the NCAA‘s fencing Regional fencing competitions, the NCAA would have no involvement with such competitions.
(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
CONCLUSION
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 tо 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.