Anthony Fancher, Appellant-Plaintiff, v. Thorntons, Inc., Appellee-Defendant. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Anthony Fancher was attacked by several men outside of a convenience store owned by Thorntons, LLC, after a store employee accused him of shoplifting. He appeals from the trial court's denial of his motion to set aside the entry of summary judgment for Thorntons. Fancher argues the trial court erred in granting summary judgment on all claims and against all defendants. Concluding that the trial court properly granted summary judgment for Thorntons and did not adjudicate any of Fancher's claims against other defendants, we affirm and remand.

Issues

[2] Fancher raises two claims, which we restate as:

I. Whether the trial court erred in granting summary judgment to Thorntons on Fancher's claim of negligent infliction of emotional distress.

II. Whether the trial court erroneously granted summary judgment on Fancher's claims against other defendants.

[3] In addition, Thorntons requests an award of appellate attorney's fees.¹

Facts and Procedural History 2

[4] On the night of August 21, 2017, Fancher arrived at a Thorntons convenience store in Speedway, Indiana, to buy snacks. Lashaun Williams was the only employee on duty. At that time, the store's general manager, Nicholas York, had instructed employees that they were not allowed to accuse a customer of stealing or “detain them” if they suspected the customer was shoplifting. Appellee's App. Vol. III, p. 111.

[5] The store had surveillance cameras inside and outside. A computer in the store's office provided access to camera recordings. The computer kept recordings for up to thirty days automatically. The computer could also retain recordings beyond thirty days, but a Thorntons employee would have to “intentionally preserve” that data. Id. at 113.

[6] When Fancher entered the store, two people were in line to make purchases. After the other customers left, Fancher and Williams were alone. Williams then told Fancher not to leave the store because she was going to call her manager or the police. Fancher thought Williams was accusing him of shoplifting. After a discussion, Fancher paid for his items and waited for the police to arrive.

[7] At that point, two men entered the store. One stood closely behind Fancher, and the other man walked up to the counter and spoke with Williams. The man standing behind Fancher attempted to prevent him from leaving, but Fancher, believing he was in danger, avoided the man and went outside. The two men followed him, and they were joined by a third man.

[8] Fancher put his purchased items and his wallet inside his car and sat down in the driver's seat. He got out of the car when one of the men opened one of his car doors. Two men attacked Fancher, hitting him several times. He fought back and eventually left on foot, walking to a nearby apartment where the mother of one of his children lived. When he returned to his vehicle, the men were gone, but his wallet, car keys, and $350 in cash were missing from his car, along with his purchases.

[9] Later that night, York's manager notified him about the incident. When York spoke with Williams the next day, on August 22, she told him she had confronted a guest about shoplifting and was frightened by him. Williams did not tell him about the fight outside the store.

[10] Also on August 22, Fancher called the police. He met a police officer and York at the store, where they reviewed a recording of the incident. York saw that Fancher and Williams had talked, and then “three or four individuals” chased Fancher outside, where a fight occurred. Id. at 117. York recognized one of the attackers as Darnell Birth. He knew that Birth was in a romantic relationship with Williams and lived with her. York later said he did not recall if he told Fancher or the officer that he recognized Birth. York also recognized the other attackers as members of Williams’ family.

[11] The officer requested a copy of the recording, and York told him to “get it from legal.” Id. at 115. York later gave a copy of the recording to the police. Thorntons’ copy of the recording of the incident either was erased or was allowed to be deleted by an unidentified individual.

[12] Williams had not told York that Birth was involved in the fight.³ York suspended Williams on August 22, and Thorntons terminated her employment on August 30.

[13] Later on August 22, Fancher went to the doctor. He reported having a headache and other body aches, but an examination revealed no injuries. Fancher later said that after the incident, he remained in his house “for a little while.” Id. at 93. And when he is out in public, he is more conscious of his surroundings. In 2018, his doctor diagnosed him with anxiety.

[14] In October 2018, York told a police officer that he had recognized Birth. The officer asked York to look at a photo lineup, and York identified Birth as one of the people he saw on the recording. At an unspecified date in 2018, Fancher went to the police department to look at a photo lineup. He could not identify any of the men as the attackers. An officer told Fancher that they had a copy of the surveillance camera recording.

[15] In December 2018, the State of Indiana charged Birth with Class A misdemeanor battery resulting in bodily injury in connection with the incident. He pleaded guilty to that offense.

[16] In August 2019, Fancher sued Thorntons, Williams, Birth, and four unnamed persons, alleging: (1) intentional infliction of emotional distress by Birth, the other assailants, Williams, and Thorntons (under a theory of respondeat superior); (2) negligent hiring and supervision of Williams by Thorntons; (3) infliction of emotional distress by Thorntons, based on its failure to timely give information to the police, and (4) spoliation of evidence by Thorntons, for destroying the surveillance recording.

[17] Thorntons moved for summary judgment. Fancher's counsel emailed Thorntons’ counsel to ask if Thorntons objected to an extension of the deadline to respond. Thorntons’ counsel responded that there was no objection. But Fancher neither filed a response nor moved to extend the filing deadline.

[18] On April 16, Thorntons moved for a summary ruling on its motion for summary judgment, noting that Fancher had not responded. Fancher opposed the motion. The trial court granted summary judgment to Thorntons. Next, Fancher moved to set aside the trial court's grant of summary judgment. The trial court denied Fancher's motion, and this appeal followed.

Discussion and Decision

I. Standard of Review

[19] We will treat Fancher's motion to set aside the judgment as a motion to correct error under Indiana Trial Rule 59, because he filed the motion within thirty days of the trial court's grant of summary judgment. See Hedrick v. Gilbert, 17 N.E.3d 321, 326 (Ind. Ct. App. 2014) (treating “motion to clarify” filed within thirty days of issuance of judgment as motion to correct error).

[20] “We review the denial of a motion to correct error for an abuse of discretion.” Brown v. City of Indianapolis, 113 N.E.3d 244, 249 (Ind. Ct. App. 2018). An abuse of discretion occurs “when the trial court's decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law.” Sandoval v. Willow Lake Ests. Home Owners Assoc., Inc., 255 N.E.3d 1181, 1186 (Ind. Ct. App. 2025).

[21] Determining whether the trial court abused its discretion when it denied a motion to correct error “requires that we review the propriety of the trial court's underlying judgment.” R.M. v. Ind. Dep't of Child Servs., 203 N.E.3d 559, 562 (Ind. Ct. App. 2023). Our standard of review on summary judgment is well-settled. We review a trial court's summary judgment order de novo, applying the same standard as the trial court. Luse Thermal Techs., LLC v. Graycor Indus. Constructors, Inc., 221 N.E.3d 701, 710 (Ind. Ct. App. 2023), trans. denied. A party is entitled to summary judgment if, after reviewing the parties’ designated evidentiary materials, the court concludes “there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law.”⁴ Ind. Trial Rule 56(C). “We will not reweigh the evidence but will liberally construe all designated evidentiary material in the light most favorable to the nonmoving party to determine whether there is a genuine issue of material fact for trial.” Perkins v. Fillio, 119 N.E.3d 1106, 1110 (Ind. Ct. App. 2019). We consider only those materials that were designated to the trial court. Lowrey v. SCI Funeral Servs., Inc., 163 N.E.3d 857, 860 (Ind. Ct. App. 2021), trans. denied.

II. Negligent Infliction of Emotional Distress

[22] Fancher argues that the trial court wrongly overlooked his claim of negligent infliction of emotional distress, which arose from Thorntons’ failure to timely tell the police that York had recognized Birth and the other attackers when he reviewed the security camera the day after the attack.⁵

[23] Thorntons argues the Court should reject Fancher's claim because he did not plead negligent infliction of emotional distress in his complaint with sufficient specificity to place Thorntons on notice of that claim. We need not address Thorntons’ argument because, assuming that Fancher gave Thorntons sufficient notice that he was alleging negligent infliction of emotional distress, Thorntons was entitled to summary judgment on that claim as a matter of law.

[24] Under the tort of negligent infliction of emotional distress, “a plaintiff may recover damages for emotional distress when he or she ‘sustains a direct impact by the negligence of another and’ because ‘of that direct involvement sustains an emotional trauma’ serious enough to affect a ‘reasonable person.’ ” Gierek v. Anonymous 1, 250 N.E.3d 378, 393 (Ind. 2025) (quoting Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991)). In Indiana, the “direct impact” element requires “that the plaintiff personally experience some type of ‘touching,’ not in the sense of a battery, but in the sense of a physical sensation[.]” Ritchhart v. Indianapolis Pub. Schs., 812 N.E.2d 189, 194 (Ind. Ct. App. 2004), trans. denied.

[25] In the current case, Thorntons, through York's delayed disclosure of information, hindered the investigation into the attack. But Fancher did not experience any physical touching or impact in connection with that delay (as opposed to the original assault, which was the basis for Fancher's claim of intentional infliction of emotional distress). Absent a physical touching of some kind, however slight, Fancher's claim of negligent infliction of emotional distress must fail as a matter of law.⁶ See Munsell v. Hambright, 776 N.E.2d 1272, 1280 (Ind. Ct. App. 2002) (counseling service entitled to summary judgment on patient's claim of negligent infliction of emotional distress in connection with disclosure of private medical information to patient's employer; inappropriate release of information did not involve a physical impact to patient), trans. denied; cf. Holloway v. Bob Evans Farms, Inc., 695 N.E.2d 991, 996 (Ind. Ct. App. 1998) (diner's claim against restaurant for negligent infliction of emotional distress survived summary judgment; diner's discovery of a worm on her fork while eating food in which the worm had been cooked qualified as a physical impact). The trial court did not abuse its discretion in denying Fancher's motion to set aside the grant of summary judgment to Thorntons.

III. Fancher's Claims Against Other Defendants

[26] Fancher argues that the trial court wrongfully entered summary judgment for Williams, Birth, and the unnamed assailants, ending the case. We disagree. First, Thorntons requested the entry of summary judgment only as to Fancher's claims against it. Second, in the summary judgment order, the trial court did not address Fancher's claims against the other defendants. Finally, the court entered final judgment under Indiana Trial Rules 54(B) and 56(C) after stating “there is no just reason for delay.” Appellee's App. Vol. III, p. 175. Those rules “provide a mechanism whereby a trial court can certify an interlocutory order as a final, appealable judgment” if the rules’ requirements are met. Peals v. Cnty. of Vigo, 783 N.E.2d 781, 783 (Ind. Ct. App. 2003). The trial court's use of this mechanism here indicates that other issues are unresolved. Fancher's claims against all defendants other than Thorntons remain to be adjudicated on remand.

IV. Appellate Attorney's Fees

[27] Thorntons asks the Court to order Fancher to pay its appellate attorney's fees, arguing that his claims are frivolous and that he repeatedly violated the Rules of Appellate Procedure. Indiana Appellate Rule 66(E) authorizes Indiana's appellate courts to assess damages, including attorney's fees, “if an appeal, petition, or motion, or response, is frivolous or in bad faith.” “A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious.” Picket Fence Prop. Co. v. Davis, 109 N.E.3d 1021, 1033 (Ind. Ct. App. 2018), trans. denied.

[28] We have already noted that defects in Fancher's Appellant's Brief and Appendix have hampered our review. And Fancher is not entitled to prevail on his claims. Even so, we cannot conclude that his appeal is egregious. We deny Thorntons’ request for appellate attorney's fees.

Conclusion

[29] For the reasons stated above, we affirm the judgment of the trial court and remand for further proceedings not inconsistent with this decision.

[30] Affirmed and remanded.

FOOTNOTES

1.   Thorntons also renews its motion to dismiss this appeal, which the motions panel previously denied, and moves to strike portions of Fancher's Appellant's Appendix. We deny both motions by separate order. Although we deny the motion to strike, we note that the documents referenced in the motion were not material to our resolution of this appeal.

3.   Fancher later speculated that Williams “stalled [him] out” until Birth and his companions arrived. Id. at 78. But there is no evidence that Williams contacted Birth after Williams entered the store.

4.   Where, as in this case, the respondent to the motion for summary judgment fails to present opposing evidence, the movant is not entitled to summary judgment by default. “Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.” Ind. T.R. 56(C).Here, some of the language in the trial court's summary judgment order implies that the court may not have made an independent determination on the evidence Thorntons provided to the court, but instead merely granted summary judgment because Fancher failed to timely respond. See Appellee's App. Vol. III, p. 175 (“The fact that Thorntons presented a prima facie case for summary judgment, alone, mandates that the Court award summary judgment.”). But we are “not bound by the trial court's findings and conclusions and will affirm if the trial court's entry of summary judgment can be sustained on any theory or basis in the record.” Isgrig v. Trs. of Ind. Univ., 256 N.E.3d 1238, 1244 (Ind. 2025). We have determined, as discussed below, that Fancher's claim of negligent infliction of emotional distress fails as a matter of law. As a result, the trial court's possible misapplication of the summary judgment standard does not require reversal.

5.   Fancher is not appealing the trial court's refusal to set aside its grant of summary judgment to Thorntons on his claims of intentional infliction of emotional distress, negligent hiring and training, and spoliation of evidence.In addition, Fancher is not claiming that Thorntons’ lack of objection to an extension of the deadline to respond to Thorntons’ summary judgment motion rendered summary judgment inappropriate. Thorntons addresses this issue in its Appellee's Brief, citing Booher v. Sheeram, LLC, 937 N.E.2d 392 (Ind. Ct. App. 2010), trans. denied, to support its claim that a movant's informal lack of an objection to respond to a motion is insufficient to extend summary judgment deadlines. On this issue, we note only that the judicial system's interest in certainty and finality provide solid grounds for requiring formal motions to extend summary judgment deadlines. Our Supreme Court has stated that “extraordinarily compelling reasons” may exist to grant relief after strict deadlines are missed. In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). But O.R. addresses appellate deadlines, and it is not our function to expand its holding.

6.   There is an exception to the physical impact requirement, known as “the Bystander Rule.” Ceres Sols. Coop., Inc. v. Est. of Bradley, 181 N.E.3d 431, 436 (Ind. Ct. App. 2022). This exception applies when a plaintiff has a direct involvement with an incident that harms another person and results in emotional distress to the plaintiff despite a lack of physical impact. See id. (discussing elements of Bystander Rule). The Bystander Rule is inapplicable to this case because Fancher never claimed he witnessed harm to another person.

Robb, Senior Judge.

Judges Bailey and Scheele concur. Bailey, J., and Scheele, J., concur.