Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019 Page 1 of 16

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.

APPELLANTS, PRO SE

Melvin Brett Randall

Matthew Jacob Randall

Mesa, Arizona

ATTORNEYS FOR APPELLEE

Joshua W. Casselman

Cassandra A. Nielsen

Rubin & Levin, P.C. 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Melvin Brett Randall and 

Matthew Jacob Randall, 

Individually and d/b/a Randall 

Jeep and Auto Sales,

Appellants-Defendants,

v.

Automotive Finance 

Corporation,

Appellee-Plaintiff.

September 30, 2019

Court of Appeals Case No.

19A-CC-100

Appeal from the Marion Superior 

Court

The Honorable John F. Hanley, 

Judge

Trial Court Cause No.

49D11-1610-CC-37223

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019 Page 2 of 16

Statement of the Case

[1] Appellants-Defendants, Melvin Brett Randall (“Melvin”) and Matthew Jacob 

Randall (“Matthew”) (collectively, “the Randalls”), individually and d/b/a 

Randall Jeep and Auto Sales (“the Auto Dealership”), appeal, pro se, the trial 

court’s grant of summary judgment to Appellee-Plaintiff, Automotive Finance 

Corporation (“AFC”). Concluding there is no error in the trial court’s entry of 

summary judgment, we affirm the trial court’s judgment. 

[2] We affirm.

Issue

Whether the trial court erred by granting summary judgment to 

AFC.

Facts

[3] AFC is an Indiana corporation that provides financing to automobile dealers. 

The Randalls operate the Auto Dealership, which is located in Mesa, Arizona. 

On October 23, 2015, the Randalls, on behalf of the Auto Dealership, executed 

a Demand Promissory Note and Security Agreement (“the Note”) along with a 

power of attorney and term sheets for the Note. Pursuant to the Note, AFC 

provided “floorplan financing” to the Auto Dealership to purchase vehicles for 

its inventory (“Purchase Money Inventory), and the Auto Dealership agreed to 

pay AFC $25,000.00. (App. Vol. 4 at 101). To secure its “prompt payment” of 

obligations under the Note, the Auto Dealership granted AFC “a lien and a 
Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019 Page 3 of 16

security interest in the Purchase Money Inventory and the Titles thereto” as 

well as in “all of the [Auto Dealership’s] Collateral.” (App. Vol. 4 at 11). 

[4] The Note also provided that the Auto Dealership, upon the sale of any item of 

Purchase Money Inventory, would hold the proceeds in trust for AFC. The 

repayment of the Auto Dealership’s obligations under the Note were set forth,

in relevant part, as follows:

2.6 Repayment of Obligations. [The Auto Dealership] shall pay 

to [AFC] . . . the Obligations, on demand and without notice, 

and in any event, with respect to an item of Purchase Money 

Inventory on the earliest of: (a) [AFC’s] demand[;] (b) forty-eight 

(48) hours after the disposition by sale or otherwise of an item of 

Purchase Money Inventory; or (c) the Curtailment Date. All 

proceeds of any such disposition shall be received by [the Auto 

Dealership] in trust for [AFC] and forwarded promptly to [AFC]. 

. . .

(App. Vol. 4 at 10). The Note provided that “[u]ntil demand by [AFC] or until 

an Event of Default[1](at which time the Obligations shall at [AFC’s] option 

and without notice become immediately due and payable in full), [the Auto 

Dealership] shall pay the Obligations as provided under Section 2.6.” (App. 

Vol. 4 at 8). The Note also provided that the Auto Dealership’s “obligation to 

 

1 An Event of Default included, among others, the following: (1) “the default in any payment or repayment 

when due of any of the Purchase Money Inventory Obligations or Obligations, as provided in the Note;” (2) 

“[AFC’s] deeming itself insecure regarding the Collateral or the possibility of [the Auto Dealership’s] default 

in any payment or repayment of any of the Obligations;” (3) “the default in payment or performance of any 

debt or obligation of [the Auto Dealership] . . . whether to [AFC] or to a third party[.]” (App. Vol. 4 at 13, 

14).
Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019 Page 4 of 16

make full payment” under the Note was “unconditional” and would “not be 

affected by claims or disputes [the Auto Dealership] may have against any other 

person, including but not limited to claims or disputes [the Auto Dealership] 

may have against [AFC] . . . .” (App. Vol. 4 at 11). Additionally, the Note

provided that “[w]henever an Event of Default shall exist, . . . [AFC], at its 

option and without demand or notice of any kind, may declare the Obligations 

to be immediately due and payable.” (App. Vol. 4 at 14).

[5] Under the Note, the Randalls agreed to “waive[] demand and presentment for 

payment, protest, notice of protest and notice of non-payment for dishonor of 

this Note[.]” (App. Vol. 4 at 8). They also agreed to “waive[] any defenses” 

that they might assert for obligations under the Note “including but not limited 

to failure of consideration, breach of warranty, fraud, payment, statute of 

frauds, bankruptcy, lack of legal capacity, statute of limitations, lender liability, 

accord and satisfaction, and usury.” (App. Vol. 4 at 8).2 Additionally, the 

Randalls agreed to “waive[] all defenses based on suretyship or impairment of 

collateral[.]” (App. Vol. 4 at 8). 

[6] The same day that the Randalls executed the Note, they also executed an 

Unconditional and Continuing Guaranty (“the Guaranty”). Under the 

Guaranty, the Randalls agreed to “absolutely and unconditionally guaranty the 

 

2 Under both the Note and the Guaranty, the Randalls agreed to submit to the personal jurisdiction of 

Indiana courts and agreed to venue in either Marion County or Hamilton County.
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full and prompt payment, when due, whether by acceleration or otherwise, 

together with interest and all costs, expenses and attorneys’ fees, of any and all 

obligations, indebtedness and liabilities of [the Auto Dealership] to [AFC]” 

under the Note. (App. Vol. 4 at 22). The Randalls also agreed that, if the Auto 

Dealership failed to pay its liabilities under the Note, they would “immediately 

pay the amount due and unpaid by [the Auto Dealership] in like manner as if 

such amount constituted the direct and primary obligation of the [Randalls].” 

(App. Vol. 4 at 22). As they had done under the Note, the Randalls also agreed 

to waive presentment, notice of non-payment, and defenses. 

[7] On October 19, 2016, AFC filed a three-count complaint against the Randalls 

and the Auto Dealership. In Count 1, AFC raised a breach of contract claim

against the Auto Dealership, alleging that the Auto Dealership had failed to 

make payments according to the terms of the Note and that there was an 

unpaid balance of $23,645.00 plus interest, fees, costs, and attorney fees. In 

Count 2, AFC sought recovery under the Guaranty from the Randalls as 

guarantors of the Auto Dealership’s indebtedness under the Note. In Count 3, 

AFC alleged that the Randalls and the Auto Dealership had committed fraud

by failing to hold the proceeds from the sale of Purchase Money Inventory in 

trust for the benefit of AFC. AFC attached the following documents to its 

complaint: Exhibit A, which included the Note, the Guaranty, a power of 

attorney, a term sheet for the Note, and a term sheet for salvage vehicles; and 
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Exhibit B, which contained an Account Balance or demand for payment, 

showing that the Randalls unpaid principal due was $23,645.00. 

[8] When the Randalls did not file an answer within the required time period, AFC 

filed a motion for default judgment, which the trial court granted. A few 

months later, the Randalls filed a motion to set aside the default judgment. The 

trial court held a hearing and granted the Randalls’ motion.

[9] In August 2017, AFC filed a motion for summary judgment, and the Randalls 

filed a cross-motion for summary judgment. In November 2017, the trial court 

denied both parties’ summary judgment motions.

[10] Thereafter, AFC continued with discovery and served the Randalls with

requests for admission (“RFA”) on December 6, 2017. The RFA included, 

among others, the following statements:

2. That [the Randalls ] signed [the Note] . . . to obtain financing 

for the purchase of vehicles.

* * * * *

4. That vehicles financed by [AFC] are considered purchase 

money inventory.

5. That [the Note] . . . grants a security interest in and a lien on 

the titles to all Purchase Money Inventory in favor of [AFC].

6. [AFC] has no contractual duty or obligation to release titles to 

Purchase Money Inventory.
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7. That [AFC] has no contractual duty or obligation to release 

titles to Purchase Money Inventory if any outstanding obligations 

remain unpaid.

8. [The Randalls] have an obligation to make full payment 

regardless of claims against or disputes with [AFC].

9. [The Randalls] sold Purchase Money Inventory and failed to 

remit proceeds of said sales to [AFC].[3]

* * * * *

25. [The Randalls] sold Purchase Money Inventory out of trust.

26. [The Randalls] have no legitimate reason, including 

affirmative defenses or other matters of abatement, for its refusal 

to pay [AFC] $23,645.00 principal, $10,997.62 interest through 

December 6, 2017, with additional interest after December 6, 

2017 at 15% per annum.

27. [The Randalls] have waived the defense of impairment of 

collateral.

* * * * *

29. [The Randalls] are indebted to [AFC] in the sum of

$23,645.00 principal, $10,997.62 interest through December 6, 

2017, with additional interest after December 6, 2017 at 15% per 

annum.

30. [AFC] has performed all conditions incumbent upon it to be 

performed under the terms of the original of the contract.

 

3 AFC included specific requests regarding the Randalls’ sale of stock numbers 2, 12, 13, 14, 15, and 16 and 

their failure to remit the proceeds from these sales.
Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019 Page 8 of 16

(Appellee’s App. Vol. 2 at 59-60). The Randalls did not respond to the RFA 

within the required time period. As a result, the matters contained in the RFA 

were admitted and conclusively established pursuant to Indiana Trial Rule 36. 

[11] On February 13, 2018, AFC filed a second motion for summary judgment.

4

 

AFC argued that it was entitled to judgment on Counts 1 and 2 in its 

complaint, which sought payment for the amount due under the Note, based on 

a breach of contract by the Auto Dealership and the Guaranty executed by the 

Randalls. AFC included the following designated evidence: (1) the complaint

along with Exhibits A and B attached to the complaint; (2) the RFA sent to the 

Randalls; (3) the Odyssey File & Serve receipt showing that AFC had served 

the Randalls with the RFA on December 6, 2017; (4) the affidavit of Angela G. 

McGraw (“McGraw affidavit”) and all exhibits attached thereto;5(5) the 

affidavit of Anthony Middleton (“Middleton affidavit”) and all exhibits 

attached thereto;

6

(6) the affidavit of attorney Cassandra Nielson (“Nielson 

affidavit”) and the attorney fee exhibit attached thereto. 

 

4 AFC electronically served its summary judgment motion to the Randalls at their email addresses listed as 

their e-file service contact and also to other email addresses that the Randalls had previously used when 

corresponding with AFC’s counsel. Additionally, AFC served the Randalls via United States mail.

5 McGraw, who was employed at the law firm of AFC’s counsel, attested that she had served the RFA via 

United States mail and confirmed that the mailing had never been returned to the law firm.

6 Middleton, who was a senior collections manager for AFC, attested that AFC’s books and records showed 

that AFC had provided floorplan financing to the Randalls pursuant to the Note but that the Randalls were 

in default by failing to pay AFC according to the terms of the Note. More specifically, Middleton attested 

that the Randalls had sold stock numbers 2, 12, 13, 14, 15, and 16 and had not remitted payment to AFC as 

required under the Note. Additionally, Middleton attested that, under the terms of the Note, AFC had “no 
Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019 Page 9 of 16

[12] On March 16, 2018,

7

the Randalls filed a summary judgment response/crossmotion for summary judgment and a “separate statement of facts” in support of 

their response/cross-motion. (App. Vol. 4 at 126). The Randalls, however, did 

not include any affidavits or specifically designate any evidence.8 In their 

response and separate statement of facts, the Randalls did not dispute the 

elements of AFC’s breach of contract claims in regard to the Note and the 

Guaranty. Indeed, they acknowledged the validity of the Note and Guaranty 

and that they had not paid the balance due. Nor did they challenge the amount 

due under the Note. Instead, they argued that they had been “unable to pay the 

balance owed for inventory purchases because [AFC] had refused to turn over 

the titles to vehicles[,]” and they generally argued that AFC’s withholding of 

titles was a breach of its duty under the Note.9 (App. Vol. 4 at 127). 

[13] Additionally, in their separate statement of facts and response, the Randalls 

argued that they had not known about the RFA until AFC had filed it summary 

 

obligation to release titles to financed vehicles in which AFC maintain[ed] a contractual security interest . . . 

unless and until AFC [wa]s paid in full for the specific vehicle.” (AFC’s App. Vol. 2 at 68-69). Finally, 

Middleton attested that AFC’s record and books showed that the Randalls owed $23,645.00 plus fees and 

interest.

7 The electronic file stamp reveals that the Randalls filed their summary judgment response at 1:22 a.m. on 

March 16, 2018.

8

In their separate statement of facts, the Randalls referenced an affidavit from Matthew “Jake” Randall and 

also referenced AFC’s first summary judgment motion and an affidavit that was apparently part of the 

designated evidence in that first summary judgment. The Randalls, however, did not include any of these 

documents as designated evidence when filing their summary judgment response.

9 The Randalls did not specify the vehicles for which they contended that AFC had withheld the titles. 
Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019 Page 10 of 16

judgment motion on February 13, 2018. The Randalls attached an exhibit to 

their separate statement of facts, and this exhibit contained copies of email

correspondence between the Randalls and AFC’s counsel.

10

 The Randalls

argued that AFC should have contacted them to confirm that they had received 

the RFA. They also suggested that the trial court could withdraw the 

admissions made under the RFA. 

[14] Thereafter, on March 26, 2018, AFC filed a motion to strike the Randalls’

summary judgment response, arguing that the response was untimely filed

under Trial Rule 56(C).

11 AFC also argued that even if the trial court did not 

strike the Randalls’ summary judgment response, the Randalls had failed to 

show the existence of any genuine issue of material fact. AFC pointed out that 

the Randalls had failed to designate any evidence and that their response relied 

merely upon their summary denials. 

[15] The Randalls filed a response to AFC’s motion to strike. They acknowledged 

that they had filed their response one day after it was due. Specifically, they 

 

10 One of these emails, dated February 14, 2018, was sent from the Randalls to AFC’s counsel. In this email, 

the Randalls informed AFC’s counsel that they had received AFC’s summary judgment motion and asserted 

that they had not previously received the RFA. Another email in this exhibit reveals that AFC’s counsel 

notified the Randalls that they had both “e-served” and mailed the RFA, and AFC attached a copy of the 

RFA to that email. (App. Vol. 4 at 131). An additional email, dated February 27, 2018, indicates that the 

Randalls emailed RFA responses to AFC that same day; however, the Randalls did not include or designate 

those RFA responses as evidence with its summary judgment response.

11 AFC asserted that the Randalls had failed to file their summary judgment response within thirty days of 

the date that AFC had electronically served them with its summary judgment motion.
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acknowledged that they had filed their response on March 16, 2018 when it was 

due on March 15. 

[16] On May 10, 2018, the trial court held a hearing on the pending motions.12 A 

few days later, on May 15, 2018, the trial court entered an order, in which it: 

(1) granted AFC’s motion to strike, noting that the Randalls’ summary 

judgment response was untimely under Indiana Trial Rules 56 and 86(J); and 

(2) granted AFC’s summary judgment motion and denied the Randalls’ crossmotion for summary judgment.13

 The Randalls then filed a motion to correct 

error, which the trial court denied. The Randalls now appeal. 

Decision

[17] The Randalls argue that the trial court erred by granting summary judgment to 

AFC.14 

 

12

 The transcript of the summary judgment hearing is not included in the record on appeal. 

13 The trial court’s May 15, 2018 order was not entered into the chronological case summary until February 

1, 2019. The judgment was entered as a final judgment under Trial Rule 54(B). The total amount of 

judgment entered was $44,891.33, which included $23,645.00 principal; $11,969.33 contract fees and interest; 

$8,985.00 attorney fees; and $292.00 costs.

14 The Randalls also argue that the trial court erred by granting AFC’s motion to strike their summary 

judgment response as untimely, and they attempt to make an argument not raised below to the trial court. 

Specifically, they now assert that their summary judgment was not untimely, claiming that the response was 

due on March 19, 2018 if the calculation were based on service by U.S. mail instead of basing it on electronic 

service. The Randalls, however, already admitted to the trial court that their response had been filed in 

Indiana on March 16, 2018 at 1:22 a.m., making it one day late. Thus, they invited any error of which they 

now complain. “A party may not take advantage of an error that he commits, invites, or which is the natural 

consequence of his own neglect or misconduct.” Shipley v. KeyBank Nat’l Ass’n, 821 N.E.2d 868, 879 (Ind. Ct. 

App. 2005). Moreover, “[i]ssues not raised before the trial court on summary judgment cannot be argued for 

the first time on appeal and are waived.” Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 
Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019 Page 12 of 16

[18] Before addressing this appellate argument, we note that the Randalls proceed 

pro se in this appeal. “It is well settled that pro se litigants are held to the same 

legal standards as licensed attorneys.” Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. 

Ct. App. 2016), reh’g denied. “This means that pro se litigants are bound to 

follow the established rules of procedure and must be prepared to accept the 

consequences of their failure to do so.” Id. at 983-84. “We will not become an 

advocate for a party, or address arguments that are inappropriate or too poorly 

developed or expressed to be understood.” Id. at 984. When a party elects to

proceed pro se on appeal, “there is no reason for us to indulge in any 

benevolent presumption on his behalf[] or [to] waive any rule for the orderly 

and proper conduct of his appeal.” Foley v. Mannor, 844 N.E.2d 494, 502 n.1 

(Ind. Ct. App. 2006).

[19] 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 

 

2004). Accordingly, the Randalls have waived their argument regarding the motion to strike. Shipley, 821 

N.E.2d at 879 (explaining that based on invited error, the appellant had waived appellate argument);

Dunaway, 813 N.E.2d at 387 (holding that appellant had waived appellate argument by failing to raise it 

below on summary judgment). Waiver notwithstanding, even if we found error as alleged and were to 

consider the Randalls’ summary judgment response, we would still affirm the trial court’s grant of AFC’s 

summary judgment motion.

 
Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019 Page 13 of 16

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

(Ind. 2014). If the moving party meets this burden, then the non-moving party 

must designate evidence demonstrating a genuine issue of material fact. Gill v. 

Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). “The review 

of a summary judgment motion is limited to those materials designated to the 

trial court.” Midwest Sec. Life Ins. Co. v. Stroup, 730 N.E.2d 163, 165 (Ind. 2000). 

“[A]n adverse party may not rest upon the mere allegations or denials of his 

pleading, but his response, by affidavits or as otherwise provided in this rule, 

must set forth specific facts showing that there is a genuine issue for trial.” T.R. 

56(E). “We construe all factual inferences in favor of the non-moving party and 

resolve all doubts regarding the existence of a material issue against the moving 

party.” Knighten, 45 N.E.3d at 791.

[20] In this appeal, we are called upon to determine whether the trial court properly 

granted summary judgment in this contract dispute between AFC and the 

Randalls. “Summary judgment is especially appropriate in the context of 

contract interpretation because the construction of a written contract is a 

question of law.” TW Gen. Contracting Servs., Inc. v. First Farmers Bank & Trust, 

904 N.E.2d 1285, 1287-88 (Ind. Ct. App. 2009) (citing Colonial Penn Ins. Co v. 

Guzorek, 690 N.E.2d 664, 667 (Ind. 1997)), reh’g denied. “The ultimate goal of 

any contract interpretation is to determine the intent of the parties when they 

made the agreement.” Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 813 (Ind. 

2012), reh’g denied. To do so, “we begin with the plain language of the contract, 
Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019 Page 14 of 16

reading it in context and, whenever possible, construing it so as to render each 

word, phrase, and term meaningful, unambiguous, and harmonious with the 

whole.” Id. A court should construe the language of a contract so as not to 

render any words, phrases, or terms ineffective or meaningless. Hammerstone v. 

Ind. Ins. Co., 986 N.E.2d 841, 846 (Ind. Ct. App. 2013).

[21] Here, AFC moved for summary judgment on its breach of contract claims in 

relation to the Note and the Guaranty. “To prevail on a claim for breach of 

contract, the plaintiff must prove the existence of a contract, the defendant’s 

breach of that contract, and damages resulting from the breach.” Haegert v. 

Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012). To prove its claims, AFC 

designated evidence showing that the Randalls, after having executed the Note

and the Guaranty, had failed to pay AFC as required under the Note and the 

Guaranty and that AFC had resulting damages, which included $23,645.00 due 

from the Note and additional amounts for interest and attorney fees. Based on 

this designated evidence, the trial court concluded that the Randalls had 

breached the Note and the Guaranty and then granted summary judgment to 

AFC.15

[22] On appeal, the Randalls do not dispute the validity of the Note or the 

Guaranty, their failure to pay under the Note or the Guaranty, or the amount 

 

15 The trial court also denied the Randalls’ cross-motion for summary judgment. They do not challenge that 

ruling on appeal.
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due as a result of their breach. Nor do they specifically challenge any of AFC’s 

designated evidence. Instead, the Randalls argue, as they did below, that their 

failure to pay was caused by AFC’s act of withholding titles to unspecified 

vehicles.

16

 

[23] Here, the Randalls filed a summary judgment response with no designated 

evidence. The response was untimely filed and was ultimately stricken by the 

trial court. AFC’s designated evidence included the RFA that it had sent to the 

Randalls, and the RFA included an admission that AFC was not required to 

release titles to the Randalls when they had unpaid obligations. Moreover, the 

plain language of the Note reveals that the Randalls had an “unconditional”

“obligation to make full payment” under the Note and that this obligation 

would “not be affected by claims or disputes . . . against [AFC] . . . .” (App. 

Vol. 4 at 11). Additionally, the Randalls agreed to waive various defenses 

against AFC. Because the Randalls have failed to prove that there are genuine 

issues of fact regarding AFC’s breach of contract claims against them, we affirm 

the trial court’s entry of summary judgment in favor of AFC.

 

16 The Randalls also argue that summary judgment was improper because they have an affirmative defense 

that AFC failed to mitigate its damages. They did not raise this argument below in the summary judgment

proceeding and did not designate any evidence regarding such an argument. Thus, they have waived any 

such argument, and we will not consider this argument. See Dunaway, 813 N.E.2d at 387 (holding that 

appellant had waived appellate argument by failing to raise it below on summary judgment).
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[24] Affirmed.

Robb, J., and Mathias, J., concur.