MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[1] John and Sarah Edrington (“the Edringtons”) appeal the denial of their purported motion to correct error, which challenged a grant of partial summary judgment in favor of JAM Real Estate, LLC (“JAM”) and Jeffery Murphy (“Murphy”) (at times, collectively “JAM”) upon the Edringtons’ complaint alleging two violations of the Residential Real Estate Sales Disclosure Act (“the Act”).
1
The Edringtons raise three issues for review. We address the dispositive issue: whether the trial court has entered a final and appealable judgment. We dismiss.
Facts and Procedural History
[2] JAM, an entity solely owned and operated by Murphy, acquired real estate located on First Street in Scottsburg (“the Property”). JAM offered the Property for sale and Murphy executed a sellers residential real estate disclosure form, consistent with Indiana Code Section 32-21-5-7. On July 15, 2019, the Edringtons made an offer to purchase the Property; on the same day, JAM accepted the offer. On July 31, the transaction was closed.
[3] On November 15, 2019, the Edringtons filed a complaint against JAM and Murphy. Among the averments of the complaint are the following:
8. That the Defendants made certain representations regarding the condition of the real estate on the Disclosure Form including that there were no encroachments and that there were no contaminations by the manufacture of a controlled substance or the manufacture or dumping of waste from the manufacture of methamphetamine.
9. That the parties closed on the sale of the real estate on or about July 31, 2019.
10. That after closing, the Plaintiffs discovered that there was in fact an encroachment on the property in [sic] which the Defendants were aware.
11. That after closing, the Plaintiffs discovered that there was an extremely high level of methamphetamine contamination on the property, [and] that the Defendants knew about the contamination and efforts were made to cover or conceal said methamphetamine contamination to fraudulently induce the Plaintiffs to purchase the real estate. This contamination not only has damaged the property, it also presents significant health risks to the Plaintiffs, their unborn child and family, as well as their contractors.
(App. Vol. II, pg. 31.)
[4] Service of the complaint was made by publication. On April 9, 2020, the Edringtons filed a motion for a default judgment. On April 13, the motion was granted, and the matter was set for a damages hearing. On December 15, JAM filed a motion for relief from judgment. Following a hearing, JAM was granted relief from the default judgment on April 29, 2021.
[5] JAM did not file an answer to the complaint. However, discovery commenced, and various discovery disputes arose. The parties were ordered to mediation, which proved unsuccessful. On April 6, 2023, JAM filed a motion for sanctions, summary judgment, and dismissal. The Edringtons filed a response, and, on July 17, JAM filed its amended motion for sanctions, summary judgment, and dismissal. JAM attached and designated as summary judgment material the affidavit of Murphy. In pertinent part, Murphy averred:
At no time did any owner or operator of JAM Real Estate have actual knowledge of methamphetamine contamination at the real estate.
At no time did any owner or operator of JAM Real Estate take any action to conceal methamphetamine contamination at the property.
At no time did any owner or operator of JAM Real Estate fraudulently induce the Plaintiffs to take any action.
(Id. at 111.) The Edringtons did not designate any summary judgment materials. On August 10, the trial court conducted a hearing at which argument of counsel was heard.
[6] On August 18, the trial court entered an order granting summary judgment to JAM. The order states that JAM filed an amended motion “which designated the Affidavit of Jeffrey Murphy in support of the motion” and that the Edringtons “did not designate any admissible evidence in opposition.” (Id. at 126-27.) In support of the grant of summary judgment, the trial court explained its reasoning as follows:
The evidence designated by the Defendants establishes the Defendants had no actual knowledge of methamphetamine contamination, did not take any action to conceal contamination, and did not induce the Plaintiffs to take any action.
The Plaintiffs have failed to designate any evidence in opposition. The Plaintiffs’ reference to unsworn and unverified statements contained in their discovery responses does not qualify as proper evidence on summary judgment.
The Plaintiffs have the burden of proving the elements of their claim.
The Defendants have produced evidence that demonstrates the Plaintiffs’ claim fails on at least three (3) of the required elements.
The Plaintiffs have failed to provide any evidence supporting any of the elements of their claim.
The Defendants are entitled to judgment as a matter of law.
(Id. at 128.)
2
[7] On September 18, the Edringtons filed a motion to correct error. The trial court conducted a hearing on January 11, 2024. On January 26, the trial court entered an order denying the motion to correct error. The order reiterates that JAM designated the affidavit of Murphy and that the Edringtons did not designate materials in opposition. The order also recognizes paragraph 12 of the motion for sanctions, summary judgment, and dismissal as an effective designation of the complaint; states that the Edringtons waived any claim of error pertaining to JAMs failure to file an answer; and concludes: “the Order Granting Summary Judgment resolved all claims as to all parties and is a final judgment.” (Id. at 10.) The Edringtons now appeal.
Discussion and Decision
Standard of Review
[8] Generally, we review a trial courts ruling on a motion to correct error for an abuse of discretion. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied. However, to the extent the issues raised on appeal are purely questions of law, our review is de novo. Id. Whether an appellate court has subject matter jurisdiction presents a question of law reviewed de novo. Ramsey v. Moore, 959 N.E.2d 246, 250 (Ind. 2012). Appellate Rule 2(H)(4) defines a final judgment to include “a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59[.]” However, where there has been no final judgment entered, a motion denominated as a motion to correct error is “in fact a motion to reconsider.” Severance v. Pleasant View Homeowners Assn, Inc., 94 N.E.3d 345, 349 n.4 (Ind. Ct. App. 2018), trans. denied.
Analysis
[9] A claim of fraudulent inducement by failure to comply with the Act is established by showing that: (1) the defendant made a false statement of material fact; (2) the defendant made the statement with actual knowledge that the statement was false; (3) the defendant made the statement to induce the plaintiff to act upon it; (4) the plaintiff justifiably relief on the statement; and (5) the plaintiff suffered injury. Boehringer v. Weber, 2 N.E.3d 807, 812 (Ind. Ct. App. 2014), trans. denied. Actual knowledge is required; a showing that an owner failed to disclose a defect about which he should have known is not sufficient. Johnson v. Wysocki, 990 N.E.2d 456, 466-67 (Ind. 2013). Here, the Edringtons alleged fraudulent inducement by two separate violations of the Act – misrepresentation of an absence of encroachment and misrepresentation of an absence of contamination.
[10] The trial courts order on motion to correct error states that the court has entered a final judgment after its review of summary judgment materials. The Indiana Court of Appeals has jurisdiction in appeals from final judgments. Ind. Appellate Rule 5(A). A “final judgment” is one which “disposes of all claims as to all parties.․” App. R. 2(H)(1). A summary judgment upon less than all of the issues involved or with respect to less than all the claims or parties is interlocutory unless the trial court complies with Indiana Trial Rule 54(B), which provides in pertinent part:
When more than one [1] claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
[11] The Edringtons contend that no final and appealable judgment is before this Court for review. They argue that the trial court failed to address the allegations related to an encroachment and improvidently granted partial summary judgment based upon an affidavit that revealed, but did not resolve, a genuine issue of material fact. JAM responds that “the Edringtons never differentiated their cause of action from the thrust of arguing fraudulent inducement” and that Murphys affidavit “refut[ed] key claims in the Edringtons cause of action.” Appellees Brief at 10-11. As more fully discussed below, the record of designated materials is silent with respect to knowledge of encroachment and the judgment does not address the alleged violation, as it addresses only knowledge of contamination. Contrary to the trial courts belief, a final judgment was not entered.
[12] Summary judgment is not a means for resolution of factual disputes and “should not be used as an abbreviated trial, even where the proof is difficult or where the court may believe that the non-moving party will not succeed at trial.” Pierson ex rel. Pierson v. Serv. Am. Corp., 9 N.E.3d 712, 715 (Ind. Ct. App. 2014), trans. denied. 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.” Ind. Trial Rule 56(C). We review de novo whether the trial court properly granted summary judgment. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
[13] The trial courts review of a summary judgment motion is limited to those materials which have been designated to the trial court. KB Home Indiana, Inc. v. Rockville TBD Corp., 928 N.E.2d 297, 303 (Ind. Ct. App. 2010) (citing Ind. Trial Rule 56(H)).
Trial Rule 56(C) does not mandate either the form of designation, i.e., the degree of specificity required, or its placement, i.e., the filing in which the designation is to be made. Trial Rule 56(C) does compel parties to identify the “parts” of any document upon which they rely. The Rule thus requires sufficient specificity to identify the relevant portions of a document, and so, for example, the designation of an entire deposition is inadequate.
Filip v. Block, 879 N.E.2d 1076, 1081 (Ind. 2008).
[14] The parties agree that JAM designated Murphys affidavit. They have disagreed as to whether the complaint was designated. In ruling upon the motion to correct error, the trial court stated that “Paragraph 12 of the Defendants’ Motion clearly designates the Complaint and quotes relevant passages from the same.” (App. Vol. II, pg. 5.) It thus appears that the trial court considered the complaint to be part of the designated materials. However, Paragraph 12 of JAMs “Amended Motion for Sanctions, Summary Judgment and Dismissal” does not amount to a designation of the entire complaint, providing:
The Plaintiffs’ Complaint alleges the Defendants sold the Plaintiffs a house that was contaminated with methamphetamine. The Plaintiffs allege the house had an “extremely high level of methamphetamine” that “Defendants knew about the contamination and efforts were made to cover or conceal said methamphetamine contamination.” The Plaintiffs allege damage to the property as well as health risks to the Plaintiffs and “their contractors.”
(Id. at 95.) As such, the language of the motion includes a recitation of some averments of the complaint. Even if this could be considered an adequate designation, it is silent as to averments related to encroachment. Although the trial court indicated that it had “resolved all claims as to all parties,” Id. at 10, this conclusion is not supported by the record. The trial court did not consider – much less resolve – all of the issues between the parties.
Conclusion
[15] Here there is no final appealable judgment under Appellate Rule 2(H) because: the partial summary judgment order does not dispose of all claims for all parties; the trial court did not state “there was no just reason for delay,” and direct the entry of judgment pursuant to Trial Rule 54(B); and, no final judgment having been entered, the motion to correct error is in substance a motion to reconsider.
[16] Dismissed.
Altice, C.J, and Mathias, J., concur.
FOOTNOTES
1
. Ind. Code § 32-21-5-1 -- 13.
2
. On the same day, the Edringtons filed a motion for default, which has not been ruled on.
Memorandum Decision by Judge Bailey
Chief Judge Altice and Judge Mathias concur.