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FOR PUBLICATION
ATTORNEY FOR APPELLANTS: BRYAN LEE CIYOU Ciyou & Dixon, P.C. Indianapolis, Indiana ATTORNEY FOR APPELLEE: JOSPEH G. BOMBAGETTI Kelly Law Office Crown Point, Indiana

IN THE COURT OF APPEALS OF INDIANA
DENNIS LARSON, ROSE REAL ESTATE, INC., ) and DIVERSIFIED COMMERCIAL REAL ) ESTATE, ) ) Appellants-Defendants, ) ) vs. ) ) PETER N. KARAGAN, ) ) Appellee-Plaintiff. ) ) __________________________________________ ROSE REAL ESTATE, ) ) Appellant/Counter-Plaintiff, ) ) vs. ) ) PETER N. KARAGAN, ) ) Appellee/Counter-Defendant. )

FILED
Nov 07 2012, 9:23 am
of the supreme court, court of appeals and tax court

CLERK

No. 45A04-1112-CC-656

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Elizabeth F. Tavitas, Judge The Honorable Thomas P. Hallett, Magistrate Cause No. 45D03-0812-CC-1585 November 7, 2012 OPINION - FOR PUBLICATION

MAY, Judge

Peter Karagan sued Dennis Larson, Rose Real Estate, and Diversified Commercial Real Estate (collectively, "Larson") for breach of contract and conversion. Karagan moved for summary judgment and, after Larson did not respond to the motion, the court granted summary judgment for Karagan. On appeal, Larson argues genuine issues of fact precluded summary judgment and Karagan was not entitled to treble damages. On cross-appeal, Karagan argues he was entitled to prejudgment interest. We affirm in part, reverse in part, and remand. FACTS AND PROCEDURAL HISTORY Karagan went to work for Dennis Larson's real estate companies in September 2005. There was no written employment agreement, but the parties orally agreed Karagan would be paid seventy-five percent of the gross commissions Larson received for transactions Karagan procured.1 Karagan left employment with Larson on December 26, 2007. Larson did not pay Karagan the remaining commissions owed him, and Karagan sued for breach of contract. He moved for summary judgment, and Larson did not respond to his motion. The trial court granted summary judgment for Karagan. It denied Larson's motion to correct error. Karagan then submitted two Requests for Admission of Fact, neither of which Larson answered. The trial court granted Karagan's motions that the requests be deemed admitted. The trial court held a damages hearing, where Larson filed a motion to permit withdrawal of

The trial court so found. Karagan refers in his affidavit to "an oral compensation agreement wherein I received 75% of the gross commissions generated on all transactions in which I was listed as the associate broker, sales agent, leasing agent, or listing agent." (App. at 77.) Larson, in an interrogatory, said in reference to the "rate of compensation [Karagan] was to receive" that he and Karagan "verbally agreed to 75% of real estate commission earned and collected on behalf of the company while he was licensed here." (Id. at 65.)
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admissions. The trial court permitted withdrawal of Larson's second admission number ten.2 After a subsequent damages hearing, the trial court found Karagan was entitled to treble damages and awarded him $177,612.50 plus costs and future commissions Larson would receive on certain transactions. It denied Karagan's request for prejudgment interest. DISCUSSION AND DECISION The standard of appellate review of a summary judgment motion is the same as that used in the trial court. Hardy v. Hardy, 963 N.E.2d 470, 473 (Ind. 2012). Summary judgment is appropriate only "if the designated evidentiary matter shows that there is 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)). We construe all facts and reasonable inferences drawn from those facts in favor of the non-moving party, and our review is limited to the materials designated to the trial court. Id. We carefully review a decision on a summary judgment motion to ensure that the losing party was not improperly denied his day in court. Id. When a nonmoving party does not respond to a summary judgment motion within thirty days -- by filing a response, requesting a continuance under T.R. 56(I), or filing an affidavit under T.R. 56(F) -- the trial court cannot consider summary judgment filings that

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That admission was: That with regard to the Hickory Plaza transaction, Peter Karagan fulfilled all requirements or conditions precedent, including procuring, if necessary, a ready, willing, and able purchaser or lessee, for him to be paid pursuant to the 75%/25% compensation agreement. (App. at 310.) The trial court found Karagan was not entitled to a commission from that transaction.

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party subsequently makes. Miller v. Yedlowski, 916 N.E.2d 246, 247 (Ind. Ct. App. 2009), trans. denied. A party who moves for summary judgment bears the risk that the court will enter summary judgment in favor of the non-moving party, even when the non-moving party has not filed a cross-motion for summary judgment or otherwise responded to the summary judgment motion. Murphy v. Curtis, 930 N.E.2d 1228, 1233 (Ind. Ct. App. 2010), trans. denied. A trial court is not required to grant an unopposed motion for summary judgment; summary judgment is awarded on the merits of the motion, not on technicalities. Id. See T.R. 56(C) ("[s]ummary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits of evidence, but the court shall make its determination from the evidentiary matter designated to the court"). While a party who does not respond to a motion for summary judgment may be limited to the facts established by the movant's submissions, such failure to respond does not preclude argument of the relevant law on appeal. Murphy, 930 N.E.2d at 1234. We must therefore determine whether Karagan's own designated evidence gives rise to a genuine issue of material fact that precludes summary judgment. It does not. 1. Genuine Issue of Fact

Larson argues Karagan's own designated evidence gives rise to a factual dispute about the terms of Karagan's oral contract: At the time of his departure, the parties disagreed as to when and how commissions were to be paid. . . . Stated different, [sic] the payments owed by [Larson] may end on the day he left employment or some time later based on 4

work in process, which would be days, weeks, or months after Karagan separated from employment. (Appellant's Br. at 16-17.) As Larson's admissions indicate there was no such factual dispute, summary judgment was appropriate. Under T.R. 36, the failure to respond in a timely manner to a request for admissions causes those matters to be admitted and conclusively established by operation of law. City of Muncie v. Peters, 709 N.E.2d 50, 54 (Ind. Ct. App. 1999), reh'g denied, trans. denied. Requests for admissions under T.R. 36 may, in addition to addressing evidentiary matters, ask for admissions as to legal issues, contentions, and conclusions, if related to the facts of the case. Id. Matters admitted under the rule are deemed conclusively established, eliminating the need to prove them at trial. Id. However, a party who made admissions by failing to respond may move to withdraw those admissions pursuant to T.R. 36(B). Id. The trial court may grant a motion to withdraw admissions if it determines: (1) withdrawal or amendment will subserve the presentation of the merits, and (2) prejudice in maintaining the action or defense will not result to the party that obtained the admission. Id. The party seeking withdrawal has the burden of

demonstrating the presentation of the merits will be subserved by withdrawal, and the party who obtained the admissions has the burden of demonstrating it will be prejudiced if the trial court permits withdrawal. Id.; T.R. 36(B). Even if both of these conditions are satisfied, the rule does not compel the trial court to grant a request to withdraw admissions; rather, the court may, in its discretion, permit withdrawal. Peters, 709 N.E.2d at 54-55. We will

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reverse the grant or denial of a motion to withdraw admissions only for an abuse of discretion. Id. at 55. Karagan's first request for admissions listed ten transactions for which Larson had received or was due to receive commissions. The second set of admissions indicated Karagan "fulfilled all the requirements . . . to be paid "pursuant to the 75%/25% compensation agreement" for those transactions. (App. at 299-301.) Larson did not respond and the requests were deemed admitted.3 In light of those admissions we cannot find error to the extent the trial court determined there was no genuine issue of fact as to the interpretation of the parties' oral agreement. Summary judgment for Karagan was not error. 2. Treble Damages

Larson next argues there was no evidence of criminal intent to support the application of the criminal conversion statute that was the basis of the award of treble damages to Karagan. There was ample evidence to permit treble damages pursuant to the statute. Ind. Code

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