Kathryn Jo Gillette a/k/a, Kathy Gillette v. Belterra Resort Indiana, LLC, d/b/a Belterra Casino Resort (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Aug 11 2015, 7:05 am
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 ATTORNEY FOR APPELLEE
Stuart T. Bench Patrick J. Kilburn
Bench Law Office Lloyd & McDaniel, PLC
Indianapolis, Indiana Louisville, Kentucky
IN THE
COURT OF APPEALS OF INDIANA
Kathryn Jo Gillette a/k/a, August 11, 2015
Kathy Gillette, Court of Appeals Cause No.
78A01-1411-CC-477
Appellant,
Appeal from the Switzerland Circuit
v. Court
Cause No. 78C01-1211-CC-437
Belterra Resort Indiana, LLC, The Honorable Gregory Coy, Judge
d/b/a Belterra Casino Resort, et
al,
Appellee.
Barnes, Judge.
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Case Summary
[1] Kathryn Gillette appeals the trial court’s grant of a motion for summary
judgment in favor of Belterra Resort Indiana, LLC, d/b/a Belterra Casino
Resort (“Belterra”). We affirm.
Issue
[2] Gillette raises one issue, which we restate as whether the trial court properly
granted Belterra’s motion for summary judgment.
Facts
[3] In 2012, Gillette applied for credit with Belterra, a casino. Pursuant to the
credit application, Belterra issued an $8,000.00 “marker”, which Gillette used
to gamble at the casino. Gillette failed to repay the marker, and Belterra filed a
complaint, suing on the account. Belterra requested treble damages pursuant to
Indiana Code Section 34-24-3-1.
[4] In July 2014, Belterra filed a motion for summary judgment arguing that there
are no genuine issues of material fact regarding Gillette’s failure to pay the
balance due on the account. In response, Gillette argued that there were
genuine issues of material fact regarding her mental capacity to enter into a
contract and that, if a valid contract was formed, Belterra was not entitled to
treble damages.
[5] In support of her argument, Gillette designated her own affidavit explaining
that in 2000, she was diagnosed with restless leg syndrome and prescribed .25
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milligrams of Mirapex once per day. In 2009, the dosage of Mirapex was
increased until she was taking .75 milligrams two to three times per day as
needed. She stated that prior to the increase of medication she had never
gambled and that shortly after the dosage was increased she went to a casino
“and once [she] started gambling, could not stop.” Appellant’s App. p. 68. She
said her gambling continued until 2013, when she was in financial ruins after
having withdrawn over $100,000.00 from an IRA, losing investment properties,
and using her husband’s credit card without his knowledge to charge over
$63,000.00. She described herself as “a compulsive, pathological gambler.” Id.
She explained that she had balances due at eight casinos in southern Indiana.
[6] In her affidavit, Gillette described her metal state:
12. . . . . During this time I continued to bet all money that I could,
borrow, or in effect take money from my Husband without his
knowledge, cash in individual retirement accounts, and other accounts
in order to continue gambling. I did not have the ability to make a
proper decision to quit, nor the ability to knowingly, or intentionally
sign documents for additional sums. I do not believe my mental
capacity was such, that I could have refused the acceptance of any
money or sums, or not had the ability to obtain what money I could to
continue my gambling problem. . . .
Id. at 70. She stated she “was not in a correct frame of mind to make a
knowledgeable, and voluntary decision to borrow this money . . . .” Id. Gillette
explained that she was never informed that one of the side effects of Mirapex is
compulsive gambling, which occurs in one out of every seven people who take
the drug. She also explained that, since her dosage was reduced, she has not
gambled at all.
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[7] Regarding the marker and Belterra’s attempt to withdraw funds from her bank
account, Gillette acknowledged that Belterra had previously extended credit to
her in the form of markers, which she had repaid. Gillette also stated:
8. . . . . I do believe that I executed a document stating that I
would repay, and that Belterra could withdraw that sum from my
checking account at Huntington Bank. It was also my understanding
that I would specifically be provided notice as to when the amount was
due, and when they would be forwarding documentation to
Huntington Bank so that the money would be available, or I could pay
the marker off ahead of time. . . .
9. I never received notice that the payment was in fact “due”, and
to the best of my knowledge, less than thirty (30) days had passed
when Belterra Casinos attempted to withdraw that sum of money from
my account. At the time of their request for withdraw, there was not
sufficient funds in the account. Had I been notified that the request
was going to be made, sufficient funds would have been made
available, and the marker would have been paid as it had been in the
past.
Upon learning that this “transaction” had not been honored, I went to
the Belterra Casino, went to the cashier’s office and provided to them
the sum of [$8,000.00] in cash, to pay off the balance that was “owed”.
This money was accepted by the cashier. I waited, and a few minutes
later the cashier advised me that they would not be able to accept that
payment as a reimbursement for the transaction, due to the fact that
they had not received all of the information as to any bank non-
payment fees, other fees, or charges as a result of there not being
sufficient funds in the bank to cover the transaction. I then asked if
they could issue me another marker for [$8,000.00], the cashier gave
me back my [$8,000.00], and said that she would consider that as a
trade on a marker, and that I would be notified of any additional fees.
My belief, and understanding was the marker had been paid off, but
that I could be responsible for additional bank fees. . . .
10. . . . . At the time this marker was taken out, I was still a
compulsive gambler, and had planned on repaying that marker when I
took the [$8,000.00] in. When they said it would be considered a new
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loan, I took my money back, and spent all of it in the casino at that
time. . . .
Id. at 68-69.
[8] On October 17, 2014, the trial court granted Belterra’s motion for summary
judgment after concluding that Gillette’s response did not raise a genuine issue
of material fact. The trial court, however, concluded that Belterra was not
entitled to treble damages because there was no fraud or other legal basis for
awarding treble damages. Thus, the trial court entered judgment for Belterra in
the amount of $8,000.00, plus attorney fees pursuant to the terms of the credit
application, costs, and interest. Gillette now appeals.
Analysis
[9] Gillette argues that the grant of summary judgment in favor of Belterra was
improper because there are genuine issues of material fact for trial. “We review
an appeal of a trial court’s ruling on a motion for summary judgment using the
same standard applicable to the trial court.” Perdue v. Gargano, 964 N.E.2d 825,
831 (Ind. 2012). “Therefore, summary judgment is appropriate only if the
designated evidence reveals ‘no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.’” Id. (quoting
Ind. Trial Rule 56(C)). Our review of summary judgment is limited to evidence
designated to the trial court. Id. (citing T.R. 56(H)). All facts and reasonable
inferences drawn from the evidence designated by the parties are construed in a
light most favorable to the non-moving party. Id.
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[10] Here, pursuant to Gillette’s request, the trial court issued findings of fact and
conclusions of law. However, a trial court’s entry of findings and conclusions is
neither required nor prohibited in the summary judgment context. Alva Elec.,
Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d 263, 267 (Ind. 2014).
Although specific findings aid our review of a summary judgment ruling, they
are not binding on us. Id. Thus, we owe no deference to the trial court’s
findings and conclusions. See id.
[11] On appeal, Gillette argues there are genuine issues of fact regarding whether
she had the mental capacity to contract with Belterra, whether she received
notice from Belterra before it attempted to withdraw funds from her bank
account, whether the $8,000.00 she took to Belterra was used to repay the
marker and a new marker was issued, whether she signed a post-dated check,
and whether she was required to repay the marker by a specific date. However,
in response to Belterra’s motion for summary judgment, aside from a long list
of purported questions of material fact, Gillette specifically argued only that she
lacked the mental capacity to form a contract and that Belterra was not entitled
to treble damages.1
[12] Because the trial court did not award Belterra treble damages and Belterra does
not challenge that decision, we need not address the issues raised by Gillette as
they relate to an award of treble damages. To the extent the issues raised by
1
The bulk of Gillette’s memorandum in opposition to summary judgment focused on the award of treble
damages.
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Gillette are new challenges to the grant of summary judgment, a party may not
raise a new argument for the first time on appeal, even in an appeal from a
summary judgment. Smith v. Taulman, 20 N.E.3d 555, 571 (Ind. Ct. App.
2014). Thus, the only properly preserved issue is whether there is a genuine
issue of material fact regarding Gillette’s mental capacity. 2
[13] Relying on Hughley v. State, 15 N.E.3d 1000 (Ind. 2014), Gillette contends her
affidavit was sufficient to create a genuine issue of material fact for trial
regarding her mental capacity. In Hughley, our supreme court reversed a grant
of summary judgment where, in response to a motion for summary judgment, a
defendant designated “a perfunctory and self-serving” affidavit to rebut the
plaintiff’s prima facie case. Hughley, 15 N.E.3d at 1004. The Hughley court held
that the affidavit was minimally sufficient to raise a factual issue to be resolved
at trial, thereby defeating the motion for summary judgment. Id.
[14] Mindful of Hughley, we nevertheless conclude that Gillette’s affidavit was not
sufficient to defeat Belterra’s motion for summary judgment. “The test for
determining a person’s mental capacity to contract is whether the person was
able to understand in a reasonable manner the nature and effect of his act.”
Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Indiana, Inc., 832 N.E.2d 559, 562 (Ind.
2
Even if the remaining issues were properly preserved, they would be waived because they are not supported
by cogent reasoning and citation to appropriate legal authority as required by Indiana Appellate Rule
46(A)(8)(a). See Dickes v. Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012) (“A party waives an issue where
the party fails to develop a cogent argument or provide adequate citation to authority and portions of the
record.”).
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Ct. App. 2005). To avoid a contract, the party must not only have been of
unsound mind, but also must have had no reasonable understanding of the
contract’s terms due to his or her instability. Id.
[15] Although Gillette’s affidavit may have created a question of fact regarding her
soundness of mind while taking the increased dose of Mirapex, her affidavit did
not create a question of fact regarding whether she had no reasonable
understanding of the contract’s terms. To the contrary, Gillette’s affidavit
establishes she understood the terms of the contract to the extent that she was
taking out a loan for $8,000.00 and was required to repay the loan and that she
had repaid the loans in the past. In fact, she even went to Belterra to repay the
loan but was unable to do so because of a problem with the paperwork. Thus,
Gillette’s affidavit establishes that she reasonably understood the terms of her
contract with Belterra.
[16] As such, even if there is a question of fact regarding Gillette’s soundness of
mind following the increased dosage of Mirapex, she has not designated
evidence showing she had no reasonable understanding of the contract’s terms,
which is necessary to the avoid her contract with Belterra. See Wilcox, 832
N.E.2d at 562. Thus, Gillette has not shown that there is a genuine issue of
material fact for trial regarding her mental capacity. See Bushong v. Williamson,
790 N.E.2d 467, 474 (Ind. 2003) (holding that, despite conflicting facts and
inferences on some elements of a claim, summary judgment may be proper
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where there is no dispute or conflict regarding a fact that is dispositive of the
claim).3 The trial court’s grant of summary judgment was proper.
Conclusion
[17] Because Gillette did not designate evidence showing that there are genuine
issues of material fact for trial, the trial court properly granted Belterra’s motion
for summary judgment. We affirm.
[18] Affirmed.
Riley, J., and Bailey, J., concur.
3
Gillette also argues that there is no accounting for the denial of an earlier motion for summary judgment
filed by Belterra and the grant of this motion for summary judgment. Even if we were bound by the trial
court’s reasons for denying the earlier motion for summary judgment, the evidence designated by Belterra in
support of its motions and Gillette’s responses to the two motions differed significantly from motion to
motion.
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