Court of Appeals of Indiana | Memorandum Decision 18A-CT-2109 | June 19, 2019 Page 1 of 6

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.

ATTORNEY FOR APPELLANT

Andrea L. Ciobanu

Ciobanu Law, P.C.

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Jeff Mitchell

American Family Mutual

Insurance Company

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

C.D.Q., b/n/f Rita Peoples, Rita 

Peoples, and Keith Peoples,

Appellants-Plaintiffs,

v.

McDonald’s Corporation,

Appellee-Defendant

June 19, 2019

Court of Appeals Case No.

18A-CT-2109

Appeal from the Marion Superior 

Court

The Honorable David J. Dreyer, 

Judge

Trial Court Cause No.

49D10-1802-CT-7971

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2109 | June 19, 2019 Page 2 of 6

[1] C.D.Q., by next friend Rita Peoples, and Rita and Keith Peoples (collectively, 

the Appellants) appeal the trial court’s order granting summary judgment in 

favor of McDonald’s Corporation (McDonald’s). Finding that McDonald’s 

failed to respond to discovery requests before seeking summary judgment, that 

those requests were directly relevant to matters at issue, and that it would be 

unfair to resolve a case by summary judgment under these circumstances, we 

reverse and remand for further proceedings.

Facts

[2] On December 22, 2017, the Appellants stopped at a McDonald’s restaurant in 

Indianapolis to purchase and eat food. Ten-year-old C.D.Q. was sitting on a 

stool while he ate his food. He shifted his weight to get off the stool and the 

bottom of the stool lifted off the floor and broke, causing C.D.Q. to fall and hit 

the floor. C.D.Q. required medical attention and suffered pain in his lower 

back and leg as a result of the incident.

[3] On February 28, 2018, the Appellants filed a complaint against McDonald’s, 

alleging that they suffered damages as a result of negligence, negligence per se,

and negligent infliction of emotional distress. On April 5, 2018, the Appellants 

filed an amended complaint adding Indiana McDonald’s, LLC, Randy Shields,

and Toucan, Inc. (Toucan), as defendants.

[4] On April 6, 2018, the Appellants served discovery, including interrogatories and 

requests for production of documents, on all defendants. On May 14, 2018, the 

defendants filed a motion for an extension of time to respond to discovery; the 
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2109 | June 19, 2019 Page 3 of 6

trial court granted the motion and extended the deadline to June 8, 2018. On 

May 24, 2018, the defendants filed a second motion for an extension of time to 

respond to discovery; the trial court granted the motion and extended the 

deadline to July 31, 2018.

[5] On July 10, 2018, having never provided discovery responses, McDonald’s filed 

a motion for summary judgment. The only evidence designated in support of 

its motion was the complaint and an affidavit from Shields. In the affidavit, 

Shields attested as follows:

• He is the creator and president of Toucan.

• Before August 10, 2007, Shields and his wife were parties to a Franchise 

Agreement and Operator’s Lease, pursuant to which they operated the 

McDonald’s restaurant at issue in this case.

• On August 10, 2007, Shields and his wife assigned the franchise to 

Toucan, which owned and operated the restaurant at the time of 

C.D.Q.’s fall.

• Toucan owned 100% of the equity interest in the restaurant. 

• McDonald’s was not a party to the franchise agreement and had no role 

in the day-to-day operations of the restaurant.

• Toucan was generally responsible for ensuring that the barstools and 

chairs in the restaurant were in reasonably safe condition.

Appellants’ App. Vol. II p. 110-13. McDonald’s did not attach the Franchise 

Agreement or Operator’s Lease to the affidavit, nor has it ever provided those 

documents to the Appellants in response to their discovery requests. Following 
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2109 | June 19, 2019 Page 4 of 6

briefing, the trial court summarily granted summary judgment in favor of 

McDonald’s on August 13, 2018.1 The Appellants now appeal.

Discussion and Decision

[6] Our standard of review on summary judgment is well settled:

The party moving for summary judgment has the burden of 

making a prima facie showing that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as 

a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012). 

Once these two requirements are met by the moving party, the 

burden then shifts to the non-moving party to show the existence 

of a genuine issue by setting forth specifically designated 

facts. Id. Any doubt as to any facts or inferences to be drawn 

therefrom must be resolved in favor of the non-moving 

party. Id. Summary judgment should be granted only if the 

evidence sanctioned by Indiana Trial Rule 56(C) shows there is 

no genuine issue of material fact and that the moving party 

deserves judgment as a matter of law. Freidline v. Shelby Ins. 

Co., 774 N.E.2d 37, 39 (Ind. 2002).

Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).

[7] The Appellants argue that summary judgment should not have been entered in 

favor of McDonald’s. The basis of the summary judgment motion was, 

essentially, that McDonald’s had no control over the premises where C.D.Q.’s 

accident occurred and, as a result, it had no duty to any of the Appellants.

 

1 The claims against the other defendants are still pending and have been stayed during the appellate process.
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[8] At the time McDonald’s moved for summary judgment, it had not yet 

responded to any of the Appellants’ pending discovery requests, despite 

multiple extensions of time granted by the trial court to do so. As a general 

rule, it is improper to grant summary judgment when requests for discovery are 

pending. Smith v. Taulman, 20 N.E.3d 555, 563 (Ind. Ct. App. 2014). But 

when pending discovery is unlikely to develop a genuine issue of material fact, 

summary judgment may be permissible. Id.

[9] Here, pending discovery would have enabled the Appellants to have a fuller 

understanding of the legal relationship between McDonald’s, Shields, and 

Toucan. That information could, indeed, create a genuine issue of material 

fact. Had McDonald’s included the Franchise Agreement and Operator’s 

Lease with its summary judgment materials, the outcome might be different, 

but as it currently stands, neither the Appellants nor the Court have any way to 

determine whether McDonald’s retains any potential liability under the relevant 

contracts. Shields’s affidavit, in and of itself, is insufficient to answer those 

questions.2

[10] McDonald’s argues that the Appellants were not sufficiently diligent in 

attempting to procure the discovery. Given that McDonald’s had sought 

multiple extensions of time to respond to discovery and then sprung a summary 

 

2 And even if the affidavit amounted to evidence sufficient to shift the burden to the Appellants, they would 

obviously have no way of designating evidence to the contrary because none of the defendants have ever 

responded to their discovery requests. This would be a fundamentally unfair result that we decline to 

countenance.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-2109 | June 19, 2019 Page 6 of 6

judgment motion on the Appellants before the latest deadline had even passed, 

still having failed to respond, we do not believe McDonald’s has the right to 

argue that the Appellants should have done more. It is not as though the 

Appellants sat on their proverbial hands and passively invited the continued 

stonewalling of McDonald’s to go on, later attempting to take advantage of the 

situation. To the contrary, things moved remarkably quickly in this case. 

McDonald’s filed the summary judgment motion three weeks before the 

extended discovery deadline, and the trial court granted the motion two weeks 

after that same deadline. Under these circumstances, we do not believe the 

Appellants were required to do more to save their claims from summary 

judgment. To hold otherwise would be to sanction the type of “gotcha” 

litigation that this Court so abhors.

[11] Given the timeline of this case and the lack of evidence on the issue of the 

potential liability of McDonald’s under these circumstances, we find that 

summary judgment should not have been granted in its favor.3

[12] The judgment of the trial court is reversed and remanded for further 

proceedings.

Najam, J., and Crone, J., concur.

 

3 The Appellants also raise an argument regarding whether there is a conflict of interest related to the 

attorney who represents all the defendants in this case. We decline to reach this issue as it is not relevant to 

the summary judgment motion.