APPELLANT PRO SE
: ATTORNEY FOR APPELLEE:
MARK KENNEDY STEPHEN P. KENLEY
Atlanta, Georgia Mitchell Hurst Jacobs & Dick, LLP
COURT OF APPEALS OF INDIANA
JSV, Inc., an Indiana corporation, and MARK )
KENNEDY, an individual, )
vs. ) No. 49A02-0210-CV-821
HENE MEAT COMPANY, INC., )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robyn Moberly, Judge
Cause No. 49D12-0106-CP-878
August 29, 2003
OPINION - FOR PUBLICATION
Mark Kennedy appeals the trial courts grant of summary judgment in favor of
Hene Meat Company (Hene) in Henes action to recover on a lease guaranty
that Kennedy executed. We affirm.
We restate and reorder the issues that Kennedy has adequately raised in his
I. whether the trial court erred in striking his untimely summary judgment response and
II. whether the trial court properly denied his motion to dismiss; and
III. whether the trial court erred in granting summary judgment in favor of Hene.
On August 30, 1999, JSV, Inc. (JSV) signed a lease to rent a
portion of a building in Indianapolis from Hene. Kennedy signed the lease
on behalf of JSV as one of that corporations officers. In addition,
Kennedy signed a document simply denominated GUARANTY. Appellants App. p. 30.
The document indicated that it was an absolute and unconditional guaranty of the
leases performance by JSV and that the guaranty would not be affected by
any modifications or alterations of the lease.
Id. at 30-31. Kennedys
printed name and signature on the document are not followed by any corporate
JSV stopped paying rent to Hene in September 2000. On June 5,
2001, Hene sued both JSV under the lease and Kennedy under the guaranty.
Hene mailed a summons and copy of the complaint to Kennedys last
known address in Georgia, and also sent a process server to Georgia who
posted the summons and complaint at that address.
On April 16, 2002, Hene moved for summary judgment. Kennedys first response
to this motion came on August 27, 2002, when he attempted to file
designated evidence that included affidavits by himself and JSVs president, Joseph S. Vuskovich.
At the summary judgment hearing conducted on September 3, 2002, the trial
court granted Henes motion to strike this response. On September 9, 2002,
the trial court denied Kennedys motion to dismiss Henes complaint, which had alleged,
inter alia, that he had never been properly served. On that same
day, the trial court also granted Henes summary judgment motion and entered judgment
against both JSV and Kennedy personally for the sum of $75,041.07. Kennedy
alone now appeals.
I. Striking of Kennedys
Summary Judgment Response
Kennedys first argument is that the trial court erred in striking his response
to Henes summary judgment motion on the basis that it was untimely.
Kennedy cites to Larr v. Wolf, 451 N.E.2d 664, 666 (Ind. Ct. App.
1983), for the proposition that under Indiana Trial Rule 56, a summary judgment
response may be filed up until the day before a summary judgment hearing.
Larr, however, was decided under a previous version of Rule 56.
That rule was amended in 1991 to provide that a party has thirty
days after the service of a summary judgment motion to file a response
to that motion. See Ind. Trial Rule 56(C); Tannehill v. Reddy, 633
N.E.2d 318, 320 (Ind. Ct. App. 1994), trans. denied.
It is undisputed that Kennedy did not file his response to Henes summary
judgment motion until well after thirty days after that motion was served, nor
did Kennedy ever move for an extension of time to file a response.
We acknowledge the existence of some split in authority as to whether
a trial court has the discretion to allow a party to file an
untimely summary judgment response. Compare Thayer v. Gohil, 740 N.E.2d 1266, 1267-68
(Ind. Ct. App. 2001), (holding that where there has been no timely response
or designation of materials in opposition to a summary judgment motion, the trial
court has no discretion to consider untimely-filed materials), trans. denied with Stemm v.
Estate of Dunlap, 717 N.E.2d 971, 974 (Ind. Ct. App. 1999) (holding trial
court had discretion to consider summary judgment response not filed until after summary
judgment had already been granted). Nevertheless, even if the trial court had
the discretion in this case to consider Kennedys untimely summary judgment response, it
certainly was not required to do so, especially because Kennedy has not shown
the existence of cause for extending the thirty-day deadline under Indiana Trial Rule
Kennedy, who proceeded pro se below and now on appeal, posits in his
brief that the trial rules are so complex and so hard to figure
out and so hard to comply with that a substantial compliance with the
rules ought to suffice. Appellants Br. p. 19. We disagree that
the thirty-day deadline for filing a summary judgment response, which is clearly set
out in Rule 56, is overly complex. Also, if that deadline was
difficult to comply with, Kennedy could have moved for an extension of time
to file a response. Finally, [a] litigant who chooses to proceed pro
se will be held to the same established rules of procedure as trained
legal counsel. Wright v. Elston, 701 N.E.2d 1227, 1231 (Ind. Ct. App.
1998), trans. denied (1999). Kennedys failure to file a timely summary judgment
response as required by Rule 56 cannot be excused by the fact that
he was proceeding pro se.
II. Denial of Motion to Dismiss
Kennedy next argues that the trial court erred in denying his motion to
dismiss in which he alleged, apart from his substantive claims regarding the guaranty,
that the trial court never obtained jurisdiction over him because he was never
properly served. To the extent Kennedy is making a personal jurisdiction argument,
once a defendant challenges the lack of personal jurisdiction, the plaintiff must present
evidence to show that there is personal jurisdiction over the defendant. Anthem
Ins. Cos. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1231 (Ind. 2000).
However, the defendant ultimately bears the burden of proving the lack of personal
jurisdiction by a preponderance of the evidence, unless the lack of jurisdiction is
apparent on the face of the complaint. Id. A trial court
acquires personal jurisdiction over a nonresident defendant when a summons is served in
the manner provided for in Indiana Trial Rule 4.4(B).
LaPalme v. Romero,
621 N.E.2d 1102, 1104 (Ind. 1993).
Hene presented evidence in the form of an affidavit of service that it
served Kennedy, a Georgia resident, with a summons and a copy of the
complaint by sending a process server to Kennedys last known address, who posted
the summons and complaint conspicuously at that address and then mailed a copy
of the summons and complaint to that address. This complied with the
method of service permitted by Indiana Trial Rule 4.1(A)(3) and (B), which in
turn is one of the methods of service on nonresident defendants permitted by
Rule 4.4(B). Additionally, the summons clearly identifies Kennedy as an individual defendant
separate from JSV. Appellees App. p. 42. Throughout these proceedings, Kennedy
has never argued or presented any evidence, even in the designated summary judgment
evidence that the trial court properly struck, that the address identified as Kennedys
by Hene in the summons and affidavit of service was not in fact
Kennedys dwelling house or usual place of abode as required by Rule 4.1(A)(3).
That being the case, Kennedy failed to prove that he was not
properly served in this manner and, therefore, failed to prove that the trial
court lacked jurisdiction over his person. The trial court properly denied Kennedys
motion to dismiss.
III. Grant of Summary Judgment
The final argument of Kennedys that we address is whether the trial court
erred in granting summary judgment in favor of Hene on its claim that
Kennedy was personally liable under the guaranty he executed. Our standard of
review of the grant or denial of a motion for summary judgment is
the same as that used in the trial court: summary judgment is
appropriate only where the evidence shows that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a
matter of law. Allen v. Great American Reserve Ins. Co., 766 N.E.2d
1157, 1161 (Ind. 2002). All facts and reasonable inferences drawn from those
facts are construed in favor of the nonmoving party. Id.
The interpretation of a guaranty is governed by the same rules
applicable to other contracts. Kordick v. Merchants Natl Bank & Trust Co.,
496 N.E.2d 119, 123 (Ind. Ct. App. 1986). Absent ambiguity, the terms
of a contract will be given their plain and ordinary meaning and will
not be considered ambiguous solely because the parties dispute the proper interpretation of
the terms. Ferrell v. Dunescape Beach Club Condominiums Phase I, Inc., 751
N.E.2d 702, 709 (Ind. Ct. App. 2001). Generally, construction of a written
contract is a question of law for the trial court for which summary
judgment is particularly appropriate. Id. Whenever summary judgment is granted based
upon the construction of a written contract, the trial court has either determined
as a matter of law that the contract is not ambiguous or uncertain,
or that the contract ambiguity, if one exists, can be resolved without the
aid of a factual determination. Id.
We conclude that the guaranty Kennedy executed was unambiguously a personal guaranty, notwithstanding
the fact that the word personal does not appear in the document.
It is axiomatic under Indiana law that a guaranty agreement must consist of
three parties: the obligor, the obligee, and the surety or guarantor.
See, e.g., Smith v. McLeod Distributing, Inc., 744 N.E.2d 459, 465 (Ind. Ct.
App. 2000). Here, Hene as landlord under the lease was the obligee
and JSV as the tenant was the obligor; the disputed issue is the
identity of the guarantor. Kennedy claims he signed both the lease and
the guaranty as an officer of JSV.
However, there would have been no point in Henes obtaining Kennedys guaranty of
the lease if he was doing so only in his official capacity as
an officer of JSV. Such an action would have been equivalent to
JSV guaranteeing JSVs performance of the lease and to JSV being both the
obligor under the lease and the guarantor under the guaranty. As we
have previously held in a factually similar case, such a result would be
paradoxical and untenable. Kordick, 496 N.E.2d at 124. In Kordick, we
concluded that where a corporate officer executed a guaranty with respect to credit
extended to the corporation, the guaranty was a personal one and the officer
personally was the guarantor despite the fact that the officer placed his corporate
title after his signature on the guaranty. Id. We further concluded
that this was apparent as a matter of law and summary judgment on
the issue was appropriate. Id. at 125. In this case, the
guaranty is even more clearly a personal one than was the case in
Kordick because Kennedys signature thereon is not followed by any corporate officer designation.
The trial court did not err in concluding that the guaranty Kennedy
executed was a personal one as a matter of law and in granting
summary judgment against Kennedy personally.
The trial court did not err in striking Kennedys untimely summary judgment response
or in denying his motion to dismiss. Additionally, it properly concluded that
Kennedy was personally liable to Hene on the guaranty he executed for any
breach of the underlying lease by JSV. We affirm.
DARDEN, J., and MAY, J., concur.
Kennedys Statement of Issues lists seven issues, but he only makes four
separate arguments. One of these, his claim that the trial court erred
in not ruling on his motion to dismiss, is not clear insomuch as
the trial courts order denying the motion to dismiss is in Kennedys appendix
and is also reflected in the chronological case summary.
Footnote: Kennedys brief argument on the personal jurisdiction question is not entirely clear
as to whether he is claiming he had sufficient contacts with Indiana to
establish personal jurisdiction or if personal jurisdiction is lacking because of insufficiency of
service of process. We treat this issue as an insufficient service question,
given Kennedys statement at the beginning of his argument, Service of Process was
not obtained by The Hene Meat Company on Mark Kennedy as a defendant
. . . . Appellants Br. p. 20.
Kennedy also asserted in his properly-stricken affidavit that he was misled by
a representative of Hene into believing that he was only signing the guaranty
in his capacity as an officer of JSV. Even if we were
to consider this implied claim of fraud, Hene correctly notes that where the
parties are not in a fiduciary relationship, one contracting party has no right
to rely upon the statements of the other as to the character or
contents of a written instrument. Biberstine v. New York Blower Co., 625
N.E.2d 1308, 1316 (Ind. Ct. App. 1993). Kennedy also claims that Hene
materially altered the terms of the lease, thus discharging his obligation as guarantor.
See S-Mart, Inc. v. Sweetwater Coffee Co., 744 N.E.2d 580, 586 (Ind.
Ct. App. 2001), trans. denied. There was no evidence or argument before
the trial court to support such a claim, not even in the stricken
materials that Kennedy submitted, and so any such argument is now waived.
See GKC Indiana Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647,
651 (Ind. Ct. App. 2002).