Rebecca J. Bartle v. Jackson Street Investors, LLC as Assignee of Paul E. Turner

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: ATTORNEYS FOR APPELLEE:
JANET A. McSHARAR DEBRA A. MASTRIAN
Harrison & Moberly, LLP LIBBY Y. GOODKNIGHT
Indianapolis, Indiana BRYAN S. STRAWBRIDGE
Krieg DeVault LLP
Indianapolis, Indiana
FILED
Dec 28 2012, 9:06 am
CLERK
IN THE of the supreme court,
court of appeals and
tax court
COURT OF APPEALS OF INDIANA
REBECCA J. BARTLE, )
)
Appellant-Defendant, )
)
vs. ) No. 29A05-1205-CC-246
)
JACKSON STREET INVESTORS, LLC, )
as Assignee of PAUL E. TURNER, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven R. Nation, Judge
Cause No. 29D01-1003-CC-345
December 28, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Rebecca J. Bartle and her husband owned a corporation and personally guaranteed two
promissory notes executed by the corporation in June 2000. Payments were made on the
notes in 2000 and 2001, but neither the corporation nor the Bartles made any payments on the
notes thereafter. In March 2010, Jackson Street Investors, LLC (“Jackson Street”), the
holder of the notes, filed a complaint against Rebecca and her husband to enforce the notes.
Rebecca’s husband was dismissed from the case, and Rebecca asserted as an affirmative
defense that the cause of action was barred by the six-year statute of limitations for actions
on promissory notes. Jackson Street moved for summary judgment and asserted that the debt
was revived in 2006, when an entity that Rebecca was affiliated with made payments on the
notes. In response, Rebecca asserted that Jackson Street had failed to establish as a matter of
law that those payments had actually been applied to the notes. The trial court granted
Jackson Street’s summary judgment motion.
Rebecca now appeals, arguing that a genuine issue of material fact remains regarding
whether the 2006 payments were actually applied to the notes. We agree and therefore
reverse and remand for further proceedings.
Facts and Procedural History
The designated evidence most favorable to Rebecca, the nonmoving party, indicates
that Rebecca, her husband John, and their two daughters owned Inverness Corporation
(“Inverness”). In June 2000, Rebecca and John signed a promissory note made payable to
Paul E. Turner (“Paul”) in the amount of $150,000 (“Agreement 1”). Agreement 1 listed
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Inverness as the debtor and was signed by John as its president and by both John and
Rebecca as guarantors. Agreement 1 provided that interest on the note would be paid in the
amount of $5000 per month in six installments beginning in August 2000 and that the
principal amount would become due and payable on December 31, 2000, or at such other
time as the parties jointly agreed. Later that month, Rebecca and John signed a second
promissory note made payable to Paul in the amount of $50,000 (“Agreement 2”).
Agreement 2 also listed Inverness as the debtor and was signed by John as its president and
by both John and Rebecca as guarantors. Agreement 2 contained similar payment terms,
except that the interest payments were to be $1666.67 per month.
It is undisputed that in 2000 and 2001, more than $60,000 in payments were made
toward the balance due on Agreement 1. It is also undisputed that in 2000, payments totaling
more than $5000 were made toward the balance due on Agreement 2. No additional
payments were made on the notes by either Inverness or by John or Rebecca individually
after 2001.
In 2009, Paul assigned his interest in the promissory notes to Jackson Street, which is
managed by his son P. Eric Turner (“Eric”). In March 2010, Jackson Street filed a complaint
against Rebecca and John, seeking to enforce the notes. John was dismissed from the case,
and Jackson Street filed an amended complaint against Rebecca. Rebecca filed an answer
and asserted as an affirmative defense that Jackson Street’s cause of action was barred by the
applicable six-year statute of limitations. See Ind. Code § 34-11-2-9 (“An action upon
promissory notes, bills of exchange, or other written contracts for the payment of money
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executed after August 31, 1982, must be commenced within six (6) years after the cause of
action accrues.”).
In November 2011, Jackson Street filed a motion for summary judgment. In support
of its motion, Jackson Street designated an affidavit submitted by Eric that reads in pertinent
part as follows:
4. I regularly review the records, reports, and other documents
routinely prepared and/or maintained by Jackson Street, for the benefit of
Jackson Street, in the ordinary course and scope of business. Jackson Street’s
records are made or obtained in the ordinary course of business by persons
who have a business duty to Jackson Street to make or provide these records.
The records are made at or near the occurrence of the event or events for
which they are made a record.
….
9. In 2000 and 2001, payments totaling Sixty Thousand One
Hundred Sixty-Four Dollars ($60,164.00) were made by John Bartle or one of
his affiliated entities, including Americare Living Centers [III, LLC
(“Americare”)], toward the balance due and owing under Agreement 1.
10. In 2000, payments totaling Five Thousand and One Dollar[s]
($5,00[1].00) were made by Inverness Corporation toward the balance due and
owing under Agreement 2.
11. Since those payments were made, I had numerous discussions
with John Bartle, throughout the past several years, about the outstanding
amounts owed under the Agreements. I received assurances from John Bartle
that payments would be made or proposals for payments. At the time, I was
handling business matters for Paul Turner, who is elderly and now in poor
health.
12. In 2006, additional payments totaling Fifty-Three Thousand
Dollars ($53,000) were made to Paul Turner and have been applied to the
remaining balances due under the [Notes]. After application of those
additional payments, there is presently due and owing the principal sum of
Fifty-One Thousand Eight Hundred Thirty-Six [Dollars] ($51,836.00) under
Agreement 1, together with interest at the default rate of fifty percent (50%)
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per annum set forth in Agreement 1; and the principal sum of Twenty[-]Nine
Thousand Nine Hundred Ninety-Nine Dollars ($29,999.00) under Agreement
2, together with interest at the default rate of fifty percent (50%) per annum set
forth in Agreement 2, plus default interest which continues to accrue on both
Agreements.
13. Effective July 8, 2009, for valid consideration, Paul Turner
assigned all of his right, title and interest under [the] Agreements to Jackson
Street.… In connection with the Assignment, I reviewed the Agreements,
along with Paul Turner’s records evidencing payments.
14. I learned that Inverness was put into receivership. Consequently,
I sent a demand letter to John Bartle and Becky Bartle, dated September 10,
2009, and demanded all amounts due under the Agreements.…
15. Becky Bartle did not respond to the demand letter and the
outstanding indebtedness has not been paid.
Appellant’s App. at 58-61. In its summary judgment brief, Jackson Street did not address
Rebecca’s statute of limitations defense.
In December 2011, Rebecca filed a response to Jackson Street’s summary judgment
motion that reads in pertinent part as follows:
[Jackson Street] is not entitled to summary judgment because there are
disputed material facts in this case to enforce two promissory notes. This case
was commenced well after the applicable six (6) year Statute of Limitations.
Moreover, [Jackson Street] has not demonstrated by credible, reliable,
undisputed evidence that Rebecca Bartle either personally or through an
authorized surrogate made payments on either promissory note in 2006 to
extend the Statute of Limitations. [Jackson Street] has presented no evidence
to demonstrate that payments on these notes was [sic] made in 2006 by anyone,
and the evidence provided through discovery was that certain checks … were
paid to Paul Turner in 2006. This does not prove conclusively that Fifty-Three
Thousand Dollars was paid on those notes in 2006, thus extending the Statute
of Limitations, as [Jackson Street] argues: these checks do not prove that
Rebecca Bartle authorized a third party to make partial payments on any notes
or other obligations to extend the Statute of Limitations as to [Jackson Street’s]
expired promissory notes.
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Id. at 75-76.
In support of her response, Rebecca designated her own affidavit, which reads in
relevant part as follows:
1. I did not ask or authorize [Americare] in 2006 to pay any amount
of money to either Paul E. Turner of Jackson Street Investors, LLC to satisfy in
whole or in part any debt owed to either based upon Promissory Notes and
Security Interests granted to and by Inverness Corporation in 2000 and by and
in respect of Paul Turner.
2. I am not aware of [Americare] making any payment to either
Paul Turner of Jackson Street Investors, LLC on my behalf or at my request in
2006 or at any other time to satisfy in part or in whole any debt owed to either
based upon Promissory Notes and Security Interests granted to and by
Inverness Corporation in 2000 by and in respect of Paul Turner.
3. I have not paid or caused to be paid any amount of money to
either Paul Turner or Jackson Street Investors, LLC during or since 2006 to
satisfy in whole or in part any indebtedness that I may have had to [sic] either
based upon Promissory Notes and Security Interests granted to and by
Inverness Corporation in 2000 by and in respect of Paul Turner.
4. Neither Paul Turner nor Jackson Street Investors, LLC brought
an action, litigation, claim or request against me or to my attention at any time
prior to March 2010 in respect of or alleging any deficiency in payment of
Promissory Notes and Security Interests granted to and by Inverness
Corporation in 2000 by and in respect of Paul Turner.
Id. at 81.
Rebecca also designated her answer to Jackson Street’s amended complaint as well as
copies of three ledger pages and four checks that Jackson Street had submitted in response to
Rebecca’s request for production of documents. The first ledger page is entitled
“PROMISSORY NOTE $150,00000 INVERNESS CORP. JOHN BARTLE” and contains
entries documenting receipt of eight payments in 2000 and 2001. Id. at 95. The second
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ledger page is entitled “PROMISSORY NOTE – $50,000 INVERNESS CORP. JOHN
BARTLE” and contains entries documenting receipt of three payments in 2000. Id. at 97.
The third ledger page is entitled “JOHN BARTLE INTEREST INCOME” and contains
entries documenting receipt of four payments totaling $53,000 in 2006. Id. at 102. Those
entries correspond with copies of four checks from Americare that were made to Paul and
signed by Larry M. New. A memo inscription on one of the checks reads, “Interest expense.”
Id. at 100. Two other checks also bear a memo inscription, but the copies of those checks
are mostly illegible. Id. at 101, 103.1
The trial court allowed Jackson Street to file a reply and designate supplemental
evidence in support of its summary judgment motion. In its reply, Jackson Street argued that
the 2006 payments by Americare should be attributed to Rebecca based on her affiliation
with that entity (as described in a 2006 order issued by a federal district court in unrelated
litigation) and thus they “are sufficient to start the statute of limitations anew as of 2006.”
Appellee’s App. at 3. Jackson Street also submitted a supplemental affidavit from Eric,
which reads in pertinent part as follows:
3. Over the years, I have done a number of business deals with John
Bartle and companies affiliated with him and [Rebecca], including [Inverness,
Americare] and various other Americare entities. I was introduced to John
Bartle through my father, Paul E. Turner, who had previously done business
deals with him and his affiliated companies.
4. With respect to the promissory notes at issue in the present
lawsuit, I had many conversations with John Bartle throughout the years,
including in 2006, 2007, and 2008, regarding the outstanding amount owed
1
In her reply brief, Rebecca says that those memo inscriptions read “Interest Expense” and “Interest
John Bartle.” Appellant’s Reply Br. at 8.
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and when payments would be made. During those conversations, John Bartle
made assurances that the notes would get paid off after the next business deal.
Correspondence from John Bartle was usually on letterhead from an
“Americare” entity.
Appellant’s App. at 123-24.
After a hearing, on March 15, 2012, the trial court issued an order granting Jackson
Street’s motion for summary judgment that reads in pertinent part as follows:
The Court finds no genuine issue of material fact regarding the
additional payments made as late as 2006 in the amount of $53,000 which
were paid towards the loans. Although [Rebecca] argues that [Jackson Street]
has not provided sufficient proof of the existence of these payments, the Court
finds that the designated evidence before the Court is sufficient for the Court
to find that these payments were in fact made by [Americare] and were applied
towards the promissory notes originally executed by Inverness Corporation and
guaranteed by [Rebecca].
It is further undisputed that there remains a balance on both notes, in the
amounts of $51,836 and $29,999, respectively, that the notes provide for
interest, attorney fees and costs of collection in the event of default.
Rather than presenting genuine issues of material fact, [Rebecca’s]
designated exhibits and arguments present issues of law which may be
properly resolved at the summary judgment stage. The first issue is whether
the statute of limitations bars [Jackson Street’s] claims. The second related
issue is whether the payments made in 2006 by a separate entity revive
[Rebecca’s] liability under her guarantee. As explained below, the Court finds
that the law supports [Jackson Street’s] positions and that summary judgment
is proper.
As to the first issue, the Court finds that the long-established law of the
State of Indiana holds for the premise that a single partial payment on a debt,
even after the statute of limitations has passed, is sufficient to revive the debt
and start the statute of limitations anew. See Barrett v. Sipp, 98 N.E. 310,
(Ind. Ct. App. 1912) and Weidenhammer v. McAdams, 98 N.E. 883 (Ind. Ct.
App. 1912). In this case, there is no genuine issue of material fact that
payments were made and applied to the debts as late as 2006. Therefore, the
Court finds, as a matter of law, that the applicable statute of limitations was
begun anew with the last of those payments on October 19, 2006. This cause
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of action was filed on or about March 17, 2010, well within the six-year period
of limitations begun on October 19, 2006.
As to the second issue, [Rebecca] argues that she did not know of the
2006 payments and did not authorize the payments to be made. [Rebecca]
further argues that her stated lack of knowledge creates a genuine issue of
material fact as to whether she is responsible for the payments and has
therefore renewed and acknowledged the debt. The Court notes, however, that
[Rebecca’s] disclaimer, by itself, is insufficient to raise a genuine issue of
material fact. [Rebecca’s] statement, by its very nature, is self-serving.
Furthermore, [Rebecca’s] statement is not supported by the other designated
evidence in this case.
The Court finds no genuine issue of material fact that the original
debtor, Inverness Corporation, is owned mostly by [Rebecca], that Inverness
Corporation was originally one of the owners of [Americare], and that one of
the members of [Americare] is U.S. Holding, a company owned 90% by
[Rebecca], and of which she is the managing member. Although the
designated evidence makes it clear that [Rebecca] left the business functions
and operations to others, the Court finds that, as a matter of law, she cannot
escape liability in this case by simply claiming ignorance over the actions of
her own companies.
[Jackson Street], in its Reply brief, cites the case of Merchants National
Bank and Trust Company of Indianapolis v. H.L.C. Enterprises, Inc., 441
N.E.2d 509 (Ind. Ct. App. 1982) to support its argument that knowledge of the
payments made by [Americare] should be imputed to [Rebecca] because of her
close connections to [Americare] and its related entities. Indeed, the other
individuals [Rebecca] left to conduct the day-to-day business of [Americare]
and the related entities were her husband and a third individual, Larry New.
The Court finds that the holding set forth in Merchants National Bank is
applicable here. Even if the Defendant did not have any actual or direct
knowledge of the payments made in 2006 by [Americare], the Court finds no
genuine issue of material fact that [Rebecca] had such close ties and ownership
interests in [Americare], Inverness Corporation and their related business
entities that, as a matter of law, she should be imputed such knowledge.
Finally, the Court finds that there is no genuine issue of material fact
with regard to the issue of attorney fees.
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WHEREFORE, for the foregoing reasons, the Court finds that [Jackson
Street’s] Motion for Summary Judgment shall be GRANTED.
Id. at 8-10.
Rebecca filed a motion to correct error, which the trial court denied. This appeal
ensued.
Discussion and Decision
In her original brief, Rebecca purports to appeal both the trial court’s denial of her
motion to correct error and its grant of Jackson Street’s summary judgment motion. Jackson
Street asserts, and Rebecca effectively concedes in her reply brief, that she has waived any
argument regarding the former by failing to “provide any legal authority or cogent
argument.” Appellee’s Br. at 11. Therefore, we address only the propriety of the trial court’s
summary judgment ruling.
Summary judgment is appropriate only where the designated
evidentiary material demonstrates that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law. Ind. Trial Rule 56(C). Genuine issues of material fact exist where facts
concerning an issue which would dispose of litigation are in dispute. On
appeal, we must carefully scrutinize an entry of summary judgment to ensure
that the non-prevailing party is not denied his or her day in court. We must
apply the same standard as the trial court and resolve disputed facts or
inferences in favor of the non-moving party.
Gen. Housewares Corp. v. Nat’l Sur. Corp., 741 N.E.2d 408, 412 (Ind. Ct. App. 2000) (some
citations omitted). The party appealing the grant of summary judgment has the burden of
persuading us that the trial court’s ruling was improper. Ind. Reg’l Recycling, Inc. v. Belmont
Indus., Inc., 957 N.E.2d 1279, 1282 (Ind. Ct. App. 2011), trans. denied (2012). “Special
findings are not required in summary judgment proceedings and are not binding on appeal.
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However, such findings offer this court valuable insight into the trial court’s rationale for its
review and facilitate appellate review.” Id. at 1283 (citation omitted).
At issue here is whether Jackson Street’s cause of action is barred by the six-year
statute of limitations for actions on promissory notes. The parties do not specify when the
cause of action accrued, but it is undisputed that the action would be time-barred unless the
2006 payments from Americare revived the debt created by the promissory notes. “[I]n
summary judgment proceedings, as at trial, the burden of establishing the existence of
material affirmative defenses is on the defendant.” Celina Mut. Ins. Co. v. Forister, 438
N.E.2d 1007, 1009 (Ind. Ct. App. 1982). Once the party asserting a statute of limitations
defense makes a prima facie case, the burden shifts to the opposing party “to present such
facts that will prevent the running of the statute.” City of E. Chicago, Ind. v. E. Chicago
Second Century, Inc., 908 N.E.2d 611, 618 (Ind. 2009). Based on the designated evidence,
we conclude that Rebecca has carried her prima facie burden and that Jackson Street has
failed to establish the absence of a genuine issue of material fact as to an essential element of
her statute of limitations defense.
A century ago, this Court stated that
a voluntary part payment upon an existing debt is prima facie sufficient to
revive such debt and start anew the statute of limitation upon the theory that
such payment is in the nature of an admission or acknowledgment by the
debtor of his liability for the whole demand, and, from the fact that he made
the payment a new promise on his part to pay the remainder of the debt may be
implied.
Barrett v. Sipp, 50 Ind. App. 304, 314, 98 N.E. 310, 314 (1912) (quotation marks omitted).
“‘In order to take a case out of the statute of limitations by a part payment, it must appear, in
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the first place, that the payment was made on account of the debt, secondly, it must appear
that it was made on account of the debt for which the action is brought.’” Id. at 310, 98 N.E.
at 312 (quoting Prenatt v. Runyon, 12 Ind. 174, 178 (1859)) (emphasis in Barrett).2
Here, a genuine issue of material fact exists regarding whether the 2006 payments by
Americare were made on account of the debt for which Jackson Street’s action was brought,
namely the Inverness debt created by Agreement 1 and Agreement 2. Unlike the ledger
sheets documenting the Inverness debt payments in 2000 and 2001, the ledger sheet
documenting the 2006 payments and the corresponding checks from Americare do not
mention either Inverness or the promissory notes.3 Instead, they mention only John’s name
and interest expense/income. Given Eric’s statement that both he and Paul had previously
conducted business with John and his affiliated companies, including Americare, we
conclude that these documents fall well short of establishing as a matter of law that the 2006
payments were made on the Inverness debt.
2
We note that the quoted material from Barrett as printed in the official Indiana Appellate Court
Reports differs slightly from that printed in the North Eastern Reporter.
3
Likewise, the Americare checks do not mention Rebecca. Cf. Mozingo v. Ross, 150 Ind. 688, 692
(1898) (“[A] partial payment can serve only to suspend the running of the statute of limitations as against the
party making the payment, by himself or duly authorized agent, and the fact that the one making the payment is
the principal debtor does not alter nor change the rule as to other debtors who executed the note or obligation
as his sureties.”). Given our resolution of this case, we need not address whether knowledge of the 2006
payments should be imputed to Rebecca based on her affiliation with Americare. We note, however, that
Jackson Street did not move to strike Rebecca’s affidavit, which disclaimed any knowledge or authorization of
those payments, and that the self-serving aspect of designated evidence affects only its weight, not its
admissibility. Reed v. City of Evansville, 956 N.E.2d 684, 696 (Ind. Ct. App. 2011), trans. denied (2012).
We also note that we are unaware of any Indiana cases holding that a veil-piercing/alter-ego theory may be
used to revive a debt against a non-paying guarantor.
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This leaves us with Eric’s self-serving statement that the 2006 payments were applied
to the Inverness debt, which is insufficient to sustain the trial court’s grant of summary
judgment in favor of Jackson Street. See Insuremax Ins. Co. v. Bice, 879 N.E.2d 1187, 1190
(Ind. Ct. App. 2008), trans. denied. (“Summary judgment is inappropriate if a reasonable
trier of fact could choose to disbelieve the movant’s account of the facts. It is error to base
summary judgment solely on a party’s self-serving affidavit, when evidence before the court
raises a genuine issue as to the affiant’s credibility. Inconsistencies and evasive language
within the movant’s designated evidence may form a basis for denying summary judgment.”)
(citations, quotation marks, and brackets omitted); Owens Corning Fiberglass Corp. v. Cobb,
754 N.E.2d 905, 909 (Ind. 2001) (“If there is any doubt as to what conclusion a jury could
reach, then summary judgment is improper.”). Therefore, we reverse and remand for further
proceedings.
Reversed and remanded.
RILEY, J., and BAILEY, J., concur.
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