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FOR PUBLICATION
ATTORNEY FOR APPELLANT: J. WILLIAM BRUNER Boonville, Indiana ATTORNEY FOR APPELLEE: ROBERT R. FAULKNER Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA
) ) Appellant-Respondent, ) ) vs. ) ) DAVID K. ZENGLER, Special Administrator ) of the ESTATE OF FRANCES L. HEBLING, ) Deceased, ) ) Appellee-Petitioner. ) MARLENE DECKER,

FILED
Apr 02 2008, 8:30 am
of the supreme court, court of appeals and tax court

CLERK

No. 74A01-0707-CV-322

APPEAL FROM THE SPENCER CIRCUIT COURT The Honorable Robert R. Aylsworth, Special Judge Cause No. 74C01-0512-ES-50

April 2, 2008

OPINION - FOR PUBLICATION

SHARPNACK, Judge

Marlene Decker appeals the trial court's grant of summary judgment to her siblings, Kathleen Kleeman, Dennis Avery, Linda Hall, and Diana Cornell (collectively, "the Siblings"), and to the Estate of Frances L. Helbling, by its administrator, David Zengler ("the Estate"). Decker raises one issue, which we revise and restate as whether the trial court erred by granting the motion for summary judgment filed by the Siblings and the Estate and by denying Decker's motion for summary judgment. On cross appeal, the Siblings and the Estate raise one issue, which we revise and restate as whether the trial court abused its discretion by striking certain affidavits. We reverse and remand.1 The relevant facts designated by the parties follow.2 Decker and the Siblings are the children of Frances L. Helbling. At the time Helbling died, Helbling and Decker had three joint accounts: two created in 1998 and a third created in 2002. On May 25, 2005, Helbling executed a will providing that "the rest, residue and remainder of [her] property, real, personal and mixed, including but not limited to [her] residence, vehicle, furniture and household goods, [her] late husband's gun collection, and [her] bank accounts" be divided equally among her five children. Id. at 81. After Helbling died on December 10, 2005, a petition for probate of her will was filed.

We note that the text in Decker's reply brief was single-spaced. We remind Decker that Ind. Appellate Rule 43(E) requires that "[a]ll printing in the text shall be double-spaced except lengthy quotes and footnotes shall be single-spaced." The Siblings and the Estate argue that Decker relies on evidence in her brief that she did not designate to the trial court. Because we do not rely on this evidence, we need not address their argument.
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On January 9, 2006, the Siblings filed a Petition to Compel Delivery of Estate Property asking the trial court to declare the joint accounts to be property of the Estate. On March 2, 2007, the Siblings filed a motion for summary judgment, which the Estate later joined, designating, in part, the affidavits of Dennis Avery and Glen Cornell as evidence. Decker filed motions to strike the affidavits of Dennis Avery and Glen Cornell and also filed a cross motion for summary judgment. After a hearing on the motions, the trial court granted summary judgment to the Siblings and the Estate, denied Decker's motion for summary judgment, and entered the following order: 1. Decker's . . . motion to strike the affidavit of Glen Cornell is denied, with the exception of paragraph 7 that contains a hearsay statement purportedly made by the decedent Mrs. Helbling, and offered to prove the truth of the matter asserted. Decker's motion is denied as to paragraphs 4, 5 and 6 of the Cornell affidavit, but is granted with regard to paragraph 7 of the same. Decker's . . . motion to strike the affidavit of Dennis Avery is granted, as paragraph 3 contains a purported statement made by [Helbling] and offered to prove the truth of the matter stated within that paragraph. As such, upon objection, the purported statement would not be admitted into evidence and, since the Avery affidavit is based wholly upon this hearsay statement, the same should be stricken pursuant to Decker's motion. Pursuant to Trial Rule 56(C) of the Indiana Rules of Trial Procedure, the court finds the designated evidentiary matter shows there is no genuine issue as to any material fact and the motions for summary judgment filed by [the Siblings] . . . and [the Estate] . . . should be granted with regard to the [bank] accounts . . . such that [Zengler] is entitled to recover and shall recover from [Decker] the money in [Helbling's] accounts at [the bank] at the time of her death . . . .

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Decker's . . . motion for summary judgment in her favor is, accordingly, in all respects denied as to her purported ownership of the [bank] accounts . . . . Based upon the court's reasoning above, there is no just reason for delay, and the court expressly directs entry of judgment in this matter for [the Estate] against [Decker], such that [Zengler] shall proceed to recover from [Decker] the money held in [Helbling's] accounts . . . at the time of her death . . . .

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Id. at 11-12. The issue is whether the trial court erred by granting the motion for summary judgment filed by the Siblings and the Estate and by denying Decker's motion for summary judgment.3 Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(c); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. The fact that the parties made cross motions for summary judgment does not alter our standard of review. Hartford Acc. & Indem. Co. v. Dana Corp., 690 N.E.2d 285, 291 (Ind. Ct. App. 1997), trans. denied. Instead, we must consider each motion separately to

The trial court also held that Helbling's firearms and jewelry, both in Decker's possession after Helbling died, were to be returned to the Estate. Decker does not appeal the trial court's grant of summary judgment to the Siblings and the Estate concerning the firearms and jewelry.

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determine whether the moving party is entitled to judgment as a matter of law. Id. Where a trial court enters findings of fact and conclusions thereon in granting a motion for summary judgment, as the trial court did in this case, the entry of specific findings and conclusions does not alter the nature of our review. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions thereon. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id. Decker argues that the Siblings and the Estate have failed to overcome the statutory presumption that funds held in a joint account belong to the surviving party. Ind. Code

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