Court of Appeals of Indiana | Memorandum Decision 20A-CC-541 | November 24, 2020 Page 1 of 20

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Michael C. Cooley

Eric N. Allen

Allen Wellman McNew Harvey, LLP

Greenfield, Indiana

ATTORNEYS FOR APPELLEE

Christopher J. Evans

Dollard Evans Whalin LLP

Noblesville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Estate of Alex Lee Harter by 

Jennifer Ann Harter, Personal 

Representative,

Appellant-Plaintiff,

v.

TCGC, LLC,

Appellee-Defendant.

November 24, 2020

Court of Appeals Case No.

20A-CC-541

Appeal from the Henry Circuit 

Court

The Honorable Bob A. Witham, 

Judge

Trial Court Cause No.

33C01-1905-CC-335

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CC-541 | November 24, 2020 Page 2 of 20

Statement of the Case

[1] The Estate of Alex Lee Harter (“Decedent”) by personal representative and 

surviving spouse, Jennifer Ann Harter (“Harter”), (collectively “the Estate”) 

filed a complaint against TCGC, LLC (“TCGC”) to collect the balance due on 

a loan that Decedent had made to TCGC. Following cross-motions for 

summary judgment, the trial court: (1) granted TCGC’s motion to strike 

Harter’s affidavit that had been offered as designated evidence; (2) granted 

TCGC’s motion for summary judgment; and (3) denied the Estate’s crossmotion for summary judgment. After the Estate filed a motion to correct error

seeking to reverse the trial court’s grant of summary judgment to TCGC and an 

affidavit in support of its motion, the trial court denied the Estate’s motion to 

correct error and granted TCGC’s motion to strike Harter’s affidavit. The 

Estate now appeals, challenging all of these rulings. Specifically, the Estate 

argues that the trial court: (1) erred in its rulings on the parties’ cross-motions 

for summary judgment; and (2) abused its discretion in its motion to correct 

error rulings.

[2] In regard to the trial court’s summary judgment rulings, we conclude that the 

trial court: (1) abused its discretion by granting TCGC’s motion to strike 

Harter’s affidavit; (2) erred by granting TCGC’s summary judgment motion;

and (3) did not err by denying the Estate’s summary judgment motion. 

Accordingly, we affirm in part, reverse in part, remand for further proceedings. 

Because neither party was entitled to summary judgment and we are remanding 
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for further proceedings, we conclude that the Estate’s challenge to the trial 

court’s motion to correct error rulings is moot and we need not address it. 

[3] We affirm in part, reverse in part, and remand.

Issues

1. Whether the trial court erred in its summary judgment rulings. 

2. Whether the trial court abused its discretion in its motion to 

correct error rulings. 

Facts

[4] In June 2018, Decedent died, and an estate was opened and filed in Cause 

Number 48C03-1808-ES-384 (“the Estate Proceeding”). Prior to his death, 

Decedent was a member of TCGC, which is a golf course. Rick Harter 

(“Rick”), who was also a member of TCGC, filed a claim against the Estate in 

the Estate Proceeding. As part of the Estate Proceeding, the Estate apparently 

obtained documents from TCGC. For example, TCGC provided Harter with a

copy of TCGC’s 2017 tax return (“TCGC’s 2017 tax return”) and a document, 

titled Summary of Debt Outstanding, which listed TCGC’s outstanding notes to 

various people, including Decedent (“TCGC’s Summary of Debt 

Outstanding”). Specifically, TCGC’s Summary of Debt Outstanding showed 
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that, as of January 1, 2019, TCGC had an outstanding amount of $43,138.64

due to Decedent.1 

[5] On May 29, 2019, the Estate filed a “Complaint on Debt” against TCGC to 

collect the balance due on the loan that Decedent had made to TCGC. (App. 

Vol. 2 at 11). The Estate alleged that “[t]he balance of the debt, as confirmed 

from the records of TCGC, LLC, was $43,138.64 as of January 1, 2019.” (App. 

Vol. 2 at 11). Additionally, the Estate’s complaint indicated that the Estate had 

made a demand for payment upon TCGC and that the debt had not been paid.

[6] In June 2019, TCGC then filed a motion to dismiss pursuant to Trial Rule 

12(B)(6). TCGC argued that the Estate’s complaint should be dismissed 

because the Estate had failed to attach a written document or affidavit of debt to 

the complaint. The trial court denied TCGC’s motion. 

[7] TCGC simultaneously filed an answer and a motion for summary judgment in 

July 2019. In its answer, TCGC neither admitted nor denied the Estate’s 

assertions that Decedent had loaned money to TCGC and that the balance due 

pursuant to its records was $43,138.64. Instead, TCGC stated that “[t]here 

[wa]s insufficient information or belief to admit or deny” those allegations. 

(App. Vol. 2 at 13). In its answer, TCGC also asserted a counterclaim, in 

which it seemed to acknowledge that there had been a loan but alleged that 

1 TCGC’s Summary of Debt Outstanding showed that the original outstanding amount for Decedent was 

$44,109.02 and that the original outstanding amount for all the people listed on the document was 

$200,242.08.
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there was “no current sums due” to the Estate from TCGC. (App. Vol. 2 at 

14). As part of its counterclaim, TCGC sought damages and attorney fees if the 

Estate did not withdraw its complaint. 

[8] In TCGC’s summary judgment motion, it stated that it knew of “no obligation . 

. . currently due and owing” to the Estate. (App. Vol. 2 at 16). TCGC also 

asserted that the obligation alleged by the Estate was “not a promissory note or 

account” and that it was “not one based on upon a writing” since “no writing 

[had been] attached to the Complaint[.]” (App. Vol. 2 at 16). TCGC argued 

that the Estate would not be able to “carry [its] burden” on its claim because: 

(1) Harter’s “testimony would be hearsay” since she was not a party to any 

agreement and had “no personal knowledge” of the terms of the agreement; 

and (2) any witnesses that the Estate “might potentially call” would not be 

parties to the agreement and “would be barred from testimony by lack of 

personal knowledge.” (App. Vol. 2 at 17). 

[9] TCGC’s designated evidence included only one document. Specifically, TCGC 

designated only its “response to Discovery[.]” (App. Vol. 2 at 17). TCGC’s 

discovery document included TCGC’s responses to the Estate’s request for 

admissions and its answers to the Estate’s interrogatories. TCGC did not 

designate any specific response or answer. In the Estate’s request for 

admissions, it asked TCGC to admit that, as of January 1, 2019, the 

outstanding balance of the debt owed by TCGC to Decedent was $43,138.64 

and that TCGC’s Summary of Debt Outstanding had been produced by TCGC 

or one of its members. TCGC responded to both requests as follows:
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Deny. Defendant TCGC, LLC and its agents are disqualified 

witnesses under the Indiana Dead Man’s Statute. Defendant’s 

recordkeeper Steve Sheets recently passed away. Defendant does 

not know of any document in its possession or under its control 

showing any amounts currently due and owing to the [E]state or 

to [Decedent]. No indication has been given from [the Estate] 

that a debt is owed, and no affidavit has been filed. See 

Defendant’s Motion to Dismiss.

(App. Vol. 2 at 21) (emphasis removed). TCGC also gave the same response to 

the Estate’s request for TCGC to admit that TCGC’s 2017 tax return, which

TCGC had provided to the Estate, was a true and accurate copy. 

[10] About one week after TCGC had filed its summary judgment motion, it then 

filed a supplement to the motion, in which it asked the trial court to take 

judicial notice of a financial declaration document that Harter had filed in a 

dissolution proceeding in February 2018, which was four months before 

Decedent had died. This document was a form setting forth only Harter’s 

financial information for dissolution purposes; the document did not contain

Decedent’s financial information. TCGC asserted that the document 

“show[ed] no loan due from TCGC[.]” (App. Vol. 2 at 35). 

[11] Thereafter, in August 2019, the Estate filed a response to TCGC’s summary 

judgment motion and a cross-motion for summary judgment. In support of the 

Estate’s response and motion, it designated an affidavit from Harter, TCGC’s 

Summary of Debt Outstanding, and TCGC’s 2017 tax return. In Harter’s

affidavit, she averred as follows:
Court of Appeals of Indiana | Memorandum Decision 20A-CC-541 | November 24, 2020 Page 7 of 20

1. [Harter] is the surviving spouse of Alex Lee Harter, the 

decedent on whose behalf she brings this suit.

2. She is the Personal Representative of the Estate of [Decedent].

3. She has personal knowledge as to all matters set forth within 

this Affidavit.

4. This Affidavit pertains to the Estate’s Response to [TCGC’s] 

Motion for Summary Judgment. 

5. I shared financial accounts and resources with Alex Harter, 

the decedent, during his lifetime.

6. I manage the Estate’s finances as Personal Representative.

7. I have access to the decedent’s financial accounts and 

personal information as Personal Representative.

8. Through counsel in the Estate, I made a non-party request for 

documents from TCGC, LLC, the Defendant.

9. Through counsel, I also requested documents from TCGC, 

LLC as it is the right of a[n] LLC member to obtain financial 

records. The financial records I received included tax returns and 

summaries of debts owed to the Members.

10. One of these documents is the “TCGC, LLC Summary of 

Debt Outstanding”, attached hereto as Exhibit 1. 

11. The document attached as Exhibit 1 was delivered to the 

Estate by TCGC, LLC by reason of the above-mentioned 

methods. The document attached as Exhibit 1 is a true and 

genuine copy of the document received by TCGC, LLC. This 

document establishes that the balance of the debt due to 

[Decedent] as of January 1, 2019 is $43,138.64.

12. I also received and reviewed the TCGC, LLC Form 1065 

Federal tax return, a portion of which is attached hereto as 

Exhibit 2.

13. The document attached as Exhibit 2 was also delivered by 

TCGC, LLC through the above-mentioned methods. The 

document attached as Exhibit 2 is a true and genuine copy 

thereof.
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14. The TCGC, LLC tax return corroborates loans made to the 

corporation by members as it reflects $200,062 on page 5, line 

19a, loans from partners and partner family members.

15. The Estate has received no payments from TCGC, LLC.

(App. Vol. 2 at 51-52). 

[12] The Estate argued that TCGC was not entitled to summary judgment because

TCGC had not met its initial summary judgment burden. Specifically, the 

Estate pointed out that TCGC had generally asserted that the Estate would not 

be able to prove its case against TCGC and had merely challenged the 

admissibility of future potential witnesses’ testimony. 

[13] Additionally, the Estate argued it was entitled to summary judgment on its 

complaint on a debt claim because it could prove the required elements of: (1) 

the existence of a loan; (2) a promise to repay the loan; and (3) nonpayment of 

the loan. The Estate asserted that TCGC’s Summary of Debt Outstanding

reflected that there was an outstanding loan from Decedent to TCGC and 

further showed the amount that remained due as of January 1, 2019 and that 

TCGC’s 2017 tax returns, which showed that loans from TCGC’s members had 

been made to TCGC, corroborated the existence of the loan at issue. The 

Estate also asserted that Harter’s affidavit showed that the loan remained 

unpaid. 

[14] TCGC subsequently filed a response to the Estate’s summary judgment motion

and a motion to strike Harter’s affidavit. TCGC argued that Harter’s entire 

affidavit should be stricken because it was not made on personal knowledge, 
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had no showing that Harter was competent to testify to the matters contained 

therein, contained opinions or conclusions as to legal matters, and included 

hearsay and “highly suspect testimony[.]” (App. Vol. 2 at 62). TCGC alleged 

that Harter’s affidavit averment that she had shared financial accounts with 

Decedent and her averment that she managed the Estate’s finances as personal 

representative were “irrelevant” and should be stricken. (App. Vol. 2 at 61). 

TCGC also suggested that Harter’s averment that she had shared financial 

accounts with Decedent was suspect because Harter and Decedent had a 

pending dissolution proceeding at the time of Decedent’s death. TCGC also 

argued that the trial court should not consider TCGC’s Summary of Debt 

Outstanding because it had “not [been] verified and certified by TCGC” and 

was “not [a] current record[]” of TCGC and that it should not consider 

TCGC’s tax return because it made “no reference” to Decedent. (App. Vol. 2 

at 61). Moreover, TCGC generally asserted that the TCGC’s records attached 

to Harter’s affidavit were hearsay. 

[15] As part of TCGC’s response to the Estate’s cross summary judgment motion, 

TCGC attached an affidavit from Rick. In Rick’s affidavit, he averred as 

follows:

1. [Rick Harter] has reviewed Exhibits 1 & 2 [TCGC’s Summary 

of Debt Outstanding and TCGC’s 2017 tax return] attached to 

the Affidavit of Jennifer Harter.

2. He makes this Affidavit from his own personal knowledge as 

a competent adult and as a major unit holder of TCGC, LLC.
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3. Exhibits 1 & 2 attached to the Affidavit of Jennifer Harter are 

not current records of [TCGC] showing any current amount due 

[to] [Decedent] or the Estate of [Decedent] as no such amount is 

currently due.

(App. Vol. 2 at 66).

[16] The Estate responded to TCGC’s motion to strike and argued that Harter’s 

statements within her affidavit were relevant and made on personal knowledge. 

In regard to TCGC’s hearsay argument, the Estate argued that the TCGC 

documents attached to Harter’s affidavit were admissible under Evidence Rule 

801(d)(2) as a statement by a party opponent. The Estate also asserted that 

TCGC’s other arguments in support of its motion to strike went to the weight of 

the evidence and did not address admissibility. 

[17] In October 2019, the trial court held a hearing on the cross-motions for 

summary judgment. Thereafter, in January 2020, the trial court issued a

general order, in which it: (1) granted TCGC’s motion to strike the entirety of 

Harter’s affidavit; (2) granted TCGC’s summary judgment motion; and (3) 

denied Harter’s summary judgment motion. 

[18] In February 2020, the Estate filed a motion to correct error and a supporting 

affidavit from Harter. The Estate’s motion to correct error was based on the 

Estate having newly discovered evidence. Specifically, the Estate asserted that 

it had obtained a note purchase agreement and two promissory notes (one for 

$17,519.02 and the other for $15,000.00) (“the loan documents”), which had 

been signed by Decedent and by Rick on behalf of TCGC. In Harter’s affidavit, 
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she stated that she was familiar with Decedent’s and Rick’s signatures. The 

Estate argued that the loan documents constituted evidence that Decedent had 

made loans to TCGC and that TCGC had agreed to repay Decedent. 

Additionally, the Estate asserted that it had also obtained a check, written from 

Decedent to TCGC, in the amount of $15,000.00. The check and the loan 

documents were dated July 1, 2015 and were attached to Harter’s affidavit.

2

 

The Estate indicated that Decedent had “comingled in an unorganized 

manner” his TCGC records with his old farming records and that Harter had 

discovered the loan documents when she had looked in Decedent’s farming 

records. (App. Vol. 2 at 76). The Estate asserted that the loan documents were 

consistent with TCGC’s Summary of Debt Outstanding and showed a similar 

amount due on the loan. Additionally, the Estate argued that the loan 

documents also showed that “TCGC’s representations [made in summary 

judgment] that no debt is owed to Decedent are all patently false[.]” (App. Vol. 

2 at 77). In Harter’s affidavit, she averred that she had personal knowledge of 

the matters within her affidavit and that the factual representations contained in 

the motion to correct error and restated in her affidavit were true and correct. 

In her affidavit, she explained how she had discovered the loan documents and 

the check that had been mixed with Decedent’s farm documents while

obtaining records in the Estate Proceeding. 

2

 The Estate initially did not attach the check to the affidavit, but it then tendered the missing exhibit once it 

realized its mistake. 
Court of Appeals of Indiana | Memorandum Decision 20A-CC-541 | November 24, 2020 Page 12 of 20

[19] Thereafter, TCGC filed a response to the Estate’s motion and a motion to strike 

Harter’s affidavit in its entirety. In TCGC’s response, it argued that the Estate 

had failed to show that it had used due diligence in discovering the documents 

that were in Harter’s possession. TCGC also asserted that the trial court should 

deny the Estate’s motion to correct error because there were “no current funds 

known to be owed to Decedent or his Estate” and because the Estate had a 

“duty to raise a genuine issue in avoidance” of TCGC’s affirmative defense of

the statute of limitations. (App. Vol. 2 at 136, 137). In TCGC’s motion to 

strike Harter’s affidavit, it suggested that Harter had made a “highly suspect” 

assertion by averring that the factual representations contained in the motion to 

correct error were true and correct and suggested that it was “unlikely that a 

non-lawyer would be personally aware” of the factual representations. (App. 

Vol. 2 at 139). 

[20] The Estate requested the trial court to hold a hearing on its motion, and TCGC 

objected to having a hearing. Without holding a hearing, the trial court issued 

an order granting TCGC’s motion to strike the entirety of Harter’s affidavit and 

denying the Estate’s motion to correct error. The Estate now appeals. 

Decision

[21] On appeal, the Estate challenges: (1) the trial court’s summary judgment 

rulings; and (2) the trial court’s motion to correct error rulings. Specifically, the 

Estate argues that the trial court: (1) erred in its rulings on the parties’ crossmotions for summary judgment and in its ruling on TCGC’s motion to strike; 
Court of Appeals of Indiana | Memorandum Decision 20A-CC-541 | November 24, 2020 Page 13 of 20

and (2) abused its discretion by denying the Estate’s motion to correct error and 

by granting TCGC’s motion to strike. 

1. Summary Judgment Rulings 

[22] Before we address the Estate’s arguments regarding the propriety of the crossmotions for summary judgment, we first address the Estate’s argument that the 

trial court abused its discretion by granting TCGC’s motion to strike Harter’s 

affidavit, which she had designated as evidentiary material in opposition to 

TCGC’s summary judgment motion and in support of the Estate’s cross-motion 

for summary judgment. 

[23] The trial court has broad discretion in ruling on the admissibility of evidence, 

and this discretion extends to rulings on motions to strike affidavits on the 

grounds that they fail to comply with the summary judgment rules. Price v.

Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct. App. 2005). Indiana Trial Rule 56(E) 

provides, in relevant part, that:

Supporting and opposing affidavits [in a summary judgment

proceeding] 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. Sworn or certified copies not previously selfauthenticated of all papers or parts thereof referred to in an 

affidavit shall be attached thereto or served therewith. The court 

may permit affidavits to be supplemented or opposed by 

depositions, answers to interrogatories, or further affidavits.
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[24] In response to TCGC’s summary judgment motion and in support of the 

Estate’s cross-motion for summary judgment, the Estate designated Harter’s 

affidavit, to which she attached TCGC’s Summary of Debt Outstanding and 

TCGC’s 2017 tax return. In Harter’s affidavit, she explained that she had 

received these documents from TCGC as part of the Estate Proceeding. When 

the trial court granted TCGC’s motion to strike Harter’s entire affidavit, the 

court stated that it did so “for the reasons outlined in [TCGC’s] Motion.” 

(App. Vol. 2 at 8). 

[25] On appeal, the Estate argues that the trial court abused its discretion by striking 

Harter’s affidavit because the statements Harter made therein were relevant and

based on personal knowledge and because the documents attached thereto were 

admissible under Evidence Rule 801(d)(2) as a statement by a party opponent. 

[26] We agree that the trial court abused its discretion by striking Harter’s affidavit. 

Harter specifically averred that the statements contained in her affidavit were 

based on her personal knowledge, and the statements therein explained Harter 

relationship to the Estate Proceeding and how she had obtained TCGC’s 

Summary of Debt Outstanding and TCGC’s 2017 tax return that she had 

attached to her affidavit. Specifically, these documents were obtained during 

the discovery process in the Estate Proceeding. Harter’s statements are relevant 

to establishing the admissibility of the documents upon which she relied in this 

summary judgment proceeding and that relate to the Estate’s claim against 

TCGC. See Morris v. Crain, 71 N.E.3d 871, 878 (Ind. Ct. App. 2017) 

(explaining that “[r]elevant evidence is defined as evidence having any tendency 
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to make the existence of any pertinent fact more probable or less probable than 

it would be without the evidence”). See also Ind. Evidence Rule 401. 

Furthermore, the documents attached to Harter’s affidavit were admissible 

pursuant to Evidence Rule 801(d)(2). “[A] statement is not hearsay if it is a 

statement made by an opposing party that is offered into evidence against him.” 

Morris, 71 N.E.3d at 878 (citing Ind. Evidence Rule 801(d)(2)(A)). 

Accordingly, the trial court abused its discretion by striking Harter’s affidavit. 

[27] Next, we turn to the Estate’s arguments that the trial court erred by granting 

TCGC’s summary judgment motion and by denying the Estate’s cross-motion 

for summary judgment. We will separately review each motion.

[28] Our standard of review for summary judgment cases is well-settled. When we 

review a trial court’s grant of a motion for summary judgment, our standard of 

review is the same as it is for the trial court. Knighten v. E. Chi. Hous. Auth., 45 

N.E.3d 788, 791 (Ind. 2015). Summary judgment is appropriate only where the 

moving party has shown that there is no genuine issue of material fact and it is 

entitled to judgment as a matter of law. Hughley v. State, 15 N.E.3d 1000, 1003 

(Ind. 2014). “Indiana’s distinctive summary judgment standard imposes a 

heavy factual burden on the movant to demonstrate the absence of any genuine 

issue of material fact on at least one element of the [non-movant’s] claim.” 

Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016) (citing 

Hughley, 15 N.E.3d at 1003). Only after the moving party carries its burden is 

the non-moving party then required to present evidence establishing the 

existence of a genuine issue of material fact. Knighten, 45 N.E.3d at 791. When 
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deciding whether summary judgment is proper, we consider only the evidence 

the parties specifically designated to the trial court. Siner, 51 N.E.3d at 1188 

(citing Ind. Trial Rule 56(C)). “The fact that the parties have filed crossmotions for summary judgment does not alter our standard for review, as we 

consider each motion separately to determine whether the moving party is 

entitled to judgment as a matter of law.” Reed v. Reid, 980 N.E.2d 277, 285 

(Ind. 2012).

[29] Summary judgment is a “high bar” for the moving party to clear in Indiana. 

Hughley, 15 N.E.3d at 1004. We must carefully review a decision on summary 

judgment to ensure a party is not improperly denied his day in court. Mangold 

ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 974 (Ind. 2001). 

“Summary judgment is a lethal weapon and courts must be mindful of its aims 

and targets and beware of over-kill in its use.” Southport Little League v. 

Vaughan, 734 N.E.2d 261, 269 (Ind. Ct. App. 2000), trans. denied. Indeed, 

“Indiana consciously errs on the side of letting marginal cases proceed to trial 

on the merits, rather than risk short-circuiting meritorious claims.” Hughley, 15 

N.E.3d at 1004.

[30] In its complaint, the Estate alleged that TCGC owed the balance of a debt to

Decedent. Specifically, the Estate alleged that that Decedent had loaned 

money to TCGC and that TCGC owed $43,138.64 as of January 1, 2019. The 

Estate alleges that its claim required it to show the existence of a loan, a 

promise to repay the loan, and nonpayment of the loan. In TCGC’s summary 

judgment motion, it did not dispute that Decedent had loaned money to TCGC
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or that it had promised to repay. Instead, TCGC stated that it knew of “no 

obligation . . . currently due and owing” to Decedent or the Estate. (App. Vol. 

2 at 16). TCGC’s designated evidence, which consisted of a discovery 

document that included TCGC’s responses to the Estate’s request for 

admissions and its answers to the Estate’s interrogatories, also generally 

asserted that TCGC did “not know of any document in its possession . . . or 

under its control showing any amounts currently due and owing to the [E]state 

or to [Decedent].” (App. Vol. 2 at 21) (emphasis removed). TCGC argued that 

the Estate would not be able to “carry [its] burden” on its debt claim because: 

(1) Harter’s “testimony would be hearsay” since she was not a party to any 

agreement and had “no personal knowledge” of the terms of the agreement; 

and (2) any witnesses that the Estate “might potentially call” would not be 

parties to the agreement and “would be barred from testimony by lack of 

personal knowledge.” (App. Vol. 2 at 17).

[31] In so arguing, TCGC did not meet its initial summary judgment burden of 

proving an absence of any genuine issue of material fact or of affirmatively 

negating at least one element with respect to the Estate’s claim. A defendant, as 

a summary judgment movant, does meet its summary judgment burden by 

arguing that the plaintiff will not be able to prove its claim. “Merely alleging 

that the plaintiff has failed to produce evidence on each element of [its cause of 

action against the defendant] is insufficient to entitle the defendant to summary 

judgment under Indiana law.” Jarboe v. Landmark Cmty. Newspapers of Ind., Inc.,

644 N.E.2d 118, 123 (Ind. 1994), reh’g denied. Moreover, “[u]nder Indiana’s
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[summary judgment] standard, the party seeking summary judgment must 

demonstrate the absence of any genuine issue of fact as to a determinative issue, 

and only then is the non-movant required to come forward with contrary 

evidence.” Id. TCGC’s designated evidence did not affirmatively negate the 

nonpayment element. TCGC did not provide designated evidence to 

affirmatively show that it had completely repaid the loan such that the debt no 

longer existed. Summary judgment should not be granted where material facts 

conflict or conflicting inferences are possible. See Hughley, 15 N.E.3d at 1003-

04 (explaining that “summary judgment is not a summary trial”). Because

TCGC did not designate evidence to affirmatively negate an element of the 

Estate’s claim and because it alleged that the Estate could not produce evidence 

of its claim, the trial court erred by granting summary judgment to TCGC.3 

Accordingly, we reverse the trial court’s grant of summary judgment to TCGC 

and remand for further proceedings. 

[32] Turning to the Estate’s summary judgment argument, we conclude that the 

Estate was also not entitled to summary judgment. In the Estate’s cross-motion 

3 Even if TCGC’s designated evidence would be considered sufficient to meet its initial summary judgment 

burden, the Estate designated evidence that showed that there remained a genuine issue of fact regarding 

nonpayment of the loan. Additionally, we reject TCGC’s argument that the trial court properly granted 

TCGC’s summary judgment motion because the Estate failed to meet its burden of refuting TCGC’s 

affirmative defenses raised in its answer. TCGC made no affirmative defense arguments in its summary 

judgment motion, and even if it had, it would have been TCGC’s burden to show that it had a “factually 

unchallenged affirmative defense that bars the plaintiff’s claim.” See Sheets v. Birky, 54 N.E.3d 1064, 1069 

(Ind. Ct. App. 2016) (explaining that when a defendant is the moving party in a summary judgment 

proceeding, the defendant has the burden of showing either that the undisputed facts negate at least one

element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative 

defense that bars the plaintiff’s claim). 
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for summary judgment, it argued that its designated evidence of Harter’s 

affidavit, which included TCGC’s Summary of Debt Outstanding and TCGC’s 

2017 tax return, showed that Decedent had made a loan to TCGC, that the 

remaining balance as of January 1, 2019 was $43,138.64, and that the loan 

remained unpaid. In response to the Estate’s motion, TCGC designated Rick’s 

affidavit in which he averred that the TCGC documents attached to Harter’s 

affidavit were not “current” records and that there was no amount “currently

due.” (App. Vol. 2 at 66).4 Because there remains a genuine issue of material 

fact regarding repayment of the loan, the trial court did not abuse its discretion 

by denying the Estate’s cross-motion for summary judgment. Accordingly, we 

affirm the trial court’s denial of the Estate’s summary judgment motion. 

Because neither party was entitled to summary judgment, we remand to the 

trial court for further proceedings. 

2. Motion to Correct Error Rulings

[33] Lastly, the Estate challenges the trial court’s rulings made in conjunction with 

the Estate’s motion to correct error. Specifically, the Estate argues that the trial 

court abused its discretion by denying its motion to correct error and by striking 

the Estate’s affidavit attached thereto. 

4 The Estate suggests that the trial court should have struck Rick’s affidavit, but the Estate did not file a 

motion to strike. 
Court of Appeals of Indiana | Memorandum Decision 20A-CC-541 | November 24, 2020 Page 20 of 20

[34] The Estate filed its motion to correct error, alleging that it had newly discovered 

evidence and seeking to have the trial court reverse its grant of summary 

judgment to TCGC. Because we have reversed the trial court’s grant of 

summary judgment to TCGC and are remanding for further proceedings, we 

need not address the Estate’s challenge to the trial court’s motion to correct 

error rulings. “[W]hen we are unable to provide effective relief upon an issue, 

the issue is deemed moot, and we will not reverse the trial court’s determination 

where absolutely no change in the status quo will result.” Sainvil v. State, 51 

N.E.3d 337, 342 (Ind. Ct. App. 2016) (citations omitted), trans denied. 

Accordingly, we remand to the trial court for further proceedings. 

[35] Affirmed in part, reversed in part, and remanded.

Kirsch, J., and Tavitas, J., concur.