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In its first issue, Miller Pipeline asserts that it is
entitled to a refund of the use tax it erroneously remitted on a casual sale
transaction. (See Pet’r Br. at 6.) Specifically, Miller Pipeline explains:
A casual sale is defined as an isolated or occasional sale by
the owner of tangible personal property where the owner is not regularly
engaged in the business of making such sales. 45 I.A.C. 2.2-1-1(d). Here,
[Miller Pipeline] purchased rolling stock, equipment, and tools in the amount
of $949,006.00 from United Utilities Construction Company. [Miller Pipeline]
self-assessed and remitted Indiana use tax in the amount of $36,687.36 for
equipment and tools. United Utilities Construction Company was not engaged in
the business of selling its rolling stock, equipment, and tools in the ordinary
course of its business. Because the underlying transaction was a casual sale .
. . [the Department] erred in denying the portion of [Miller Pipeline’s] refund
claim related [thereto].
(Pet’r Br. at 6 (citing Pet’r Br., Exs. 13-15).)
As previously mentioned, Trial Rule 56(C) requires that at the
time it files a motion for summary judgment, “a party shall designate to the
court all parts of pleadings, depositions, answers to interrogatories,
admissions, matters of judicial notice, and any other matters on which it
relies for purposes of the motion.” T.R. 56(C). Because the Rule compels a
party to identify the “parts” of any document upon which it relies, it may not
designate various pleadings, discovery material, and affidavits in their
entirety. See Filip v. Block, 879 N.E.2d 1076, 1081 (Ind. 2008) (citation
omitted); O’Connor v. Stewart, 668 N.E.2d 720,
722 (Ind. Ct. App. 1996). Rather, “regardless of how concise or short the
document is, in order to be properly designated, specific reference to the
relevant portion of the document [i.e., the specific portion of the document
that contains the material fact or facts upon which the moving party relies]
must be made.” O’Connor, 668 N.E.2d at 722 (footnote added). A proper
designation should also include an explanation as to why those specifically
designated facts are material. Kissell v. Vanes, 629 N.E.2d 878, 880 (Ind. Ct.
App. 1994) (citation omitted).
Moreover, when ruling on a
motion for summary judgment, this Court will only consider properly designated
evidence that would be admissible at trial. See Kronmiller v. Wangberg, 665
N.E.2d 624, 627 (Ind. Ct. App. 1996) (citations omitted), trans. denied. See
also In re Belanger’s Estate, 433 N.E.2d 39, 42-43 (Ind. Ct. App. 1982)
(stating that before a court can determine whether summary judgment is
appropriate, it must make certain threshold decisions pertaining to the
evidential worth of the designated evidence presented). Thus, unsworn
statements or unverified exhibits will not be considered. See Kronmiller, 665
N.E.2d at 627 (citation omitted) (explaining that because medical records were neither
authenticated nor shown to be true and accurate copies of the material they
purported to be, they carried no indicia of reliability and trustworthiness).
Similarly, portions of affidavits that merely set forth conclusory facts or
conclusions of law will not be considered. Coghill v. Badger, 430 N.E.2d 405,
406 (Ind. Ct. App. 1982) (citations omitted).
In
designating Exhibits 13, 14, and 15 as its evidence with respect to the casual
sale” issue, Miller Pipeline has not identified the specific parts of those
exhibits that contain the material fact or facts upon which it relies. (See
Pet’r Br. at 6 (merely citing to those exhibits in toto).) Moreover, none of
the exhibits has been paginated, despite the fact that each is between six and
eleven pages long. (See Pet’r Br., Exs. 13-15.) Furthermore, while all three
exhibits appear to contain multiple documents, Miller Pipeline has not, apart
from the first document within each exhibit, identified any of those documents.3
(See Pet’r Des’g Evid.; Br., Exs. 13-15 (footnote added).) Finally, none of the
exhibits – or any of the documents within each of the exhibits – has been sworn
to in any way. (See Pet’r Br., Exs. 13-15.) Given these infirmities, Miller
Pipeline’s Designated Exhibits 13, 14, and 15 are inadmissible and must be
stricken.4,5 See Kronmiller, 665 N.E.2d at 627-28 (footnotes added).
II.
Miller Pipeline’s eighth issue
claims that it is entitled to a refund of use tax it erroneously remitted on a
“lump-sum” contract. Indeed:
[Miller Pipeline] contracted
with Hession Farms, Inc. to replace field tile at a particular location. Per
Anthony Hession, President, the underlying contract involved a “lump-sum”
contract for improvement to realty and, as such, Hession Farms, Inc. paid
sales/use tax on the materials used to complete the project. Under 45 I.A.C.
2.2-4-22 and 45 I.A.C. 2.2-4-26, the contractor in a “lump-sum” contract is
liable for the payment of sales/use tax on the purchase price of all material
used. Because Hession Farms, Inc. properly paid sales/use tax on the material
portion of the “lump-sum” contract, [the Department] . . . erred in denying the
portion of [Miller Pipeline’s] refund claim related to use tax paid [thereto].
(Pet’r Br. at 12-13 (citing
Pet’r Br., Ex. 26).)
Miller Pipeline’s Designated
Exhibit 26 is a photocopy of a one page form letter on “Dunbar & Romack”
letterhead. (See Pet’r Br., Ex. 26 at 1.) The letter, dated November 24, 2009,
and addressed to Hession Farms, Inc., reads:
Dear Sir or Madam:
My client was recently audited
by the Indiana Department of State Revenue. During the course of the audit, the
auditor questioned your invoice(s) below. See attached
In order to respond to the
auditor’s questions, please provide the information below.
1. I hold valid Indiana retail
merchant certificate. RRMC:______________.
2. I am engaged in the business
of selling the following type of property:
____________________________________________________________.
[ ] Hession Farms, Inc. has
been audited by the Indiana Department of State Revenue for the period:
________________ to __________________.
[ ] The questioned invoice
involved a “lump-sum” contract for improvement to realty. As such, Hession
Farms, Inc. paid sales/use tax on the materials used to complete the project.
[ ] Other
Explanation:________________________________________________________________________________________________________________
(Pet’r Br., Ex. 26 at 1.) The
letter has a handwritten “x” in the box next to the statement “[t]he questioned
invoice involved a “lump-sum” contract for improvement to realty. As such,
Hession Farms, Inc. paid sales/use tax on the materials used to complete the
project.” (See Pet’r Br., Ex. 26 at 1.) At the bottom of the letter is an
affirmation and the signature of “Anthony Hession, Pres.”6 (Pet’r Br., Ex. 26
at 1 (footnote added).) Attached to the letter is a material and labor invoice
from Hession Farms, Inc. to Miller Pipeline for field tile replacement. (Pet’r
Br., Ex. 26 at 2.)
Hession has not provided any
facts in this letter which would support the legal conclusion that the subject
transaction involved a “lump-sum” contract nor has he provided any facts to
show that Hession Farms, Inc. paid the tax “on the materials used to complete
the project.” (See Pet’r Br., Ex. 26 at 1.) Moreover, the mere fact that the
letter was signed and affirmed does not make it an affidavit. Cf. Coghill, 430
N.E.2d at 406 (explaining that an affidavit “‘should follow substantially the
same form as though the affiant were giving testimony in court’”) with T.R.
56(E) (stating that an affidavit for summary judgment purposes “shall be made
on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify
to the matters stated therein” (emphasis added)). Given these infirmities,
Exhibit 26 is inadmissible and must be stricken.
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