ROMAINE v. SUPERIOR ENVIRONMENTAL REMEDIATION90 INC (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Superior Environmental Remediation90 Inc. (“SER90”) sued Gregg Romaine for Romaine's alleged nonpayment of a debt and breach of contract. SER90 filed a motion for summary judgment on both its claim for an account stated and its claim for breach of contract, and the trial court granted that motion in favor of SER90 on only its account stated claim. Romaine now appeals that decision and raises one issue for our review: Whether the trial court erred by entering summary judgment in favor of SER90 on the account stated claim.

[2] Because SER90 failed to meet its burden for obtaining summary judgment on its account stated claim, we reverse and remand.

Facts and Procedural History

[3] SER90 is a company that specializes in environmental investigations and remediation. Romaine is an Indiana-licensed attorney.

[4] On November 4 and 5, 2019, SER90 and Romaine executed a “Simple Business Funding Agreement” (the “Agreement”), whereby SER90 agreed to loan Romaine $50,000 interest free in order to capitalize his law practice and Romaine agreed to pay off that loan by referring, originating, and assisting in SER90's insurance clean-up cases. SER90 later loaned Romaine an additional $15,000.

[5] On May 23, 2022, SER90 sued Romaine, asserting claims for an account stated and breach of contract. In May 2024, SER90 filed a motion for summary judgment on both of its claims.¹ In support of this motion, SER90 designated its May 2022 unverified complaint; the Agreement; an affidavit from SER90's President Sammy Sirhan; and unanswered discovery requests—including interrogatories, requests for admissions, and requests for production—that SER90 sent to Romaine in early February 2024.² On June 20, Romaine filed a brief in opposition to SER90's motion, and he designated an affidavit from himself, assorted documents that he described in his designation as “detail[ing] ongoing work under the [A]greement,” and his June 20 responses to SER90's requests for admissions.³

[6] The trial court granted summary judgment in favor of SER90 on its account stated claim, and it denied summary judgment on SER90's breach of contract claim. Romaine now appeals.

Discussion and Decision

The Trial Court Erred by Granting Summary Judgment in Favor of SER90 on Its Account Stated Claim

[7] Romaine contends the trial court erred by granting summary judgment in favor of SER90 on the account stated claim. We review summary judgment decisions de novo, Gierek v. Anonymous 1, 250 N.E.3d 378, 384 (Ind. 2025) (citing Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)), which means we apply the same standard as the trial court, Wohlt v. Wohlt, 245 N.E.3d 611, 615 (Ind. 2024) (citing Red Lobster Rests. LLC v. Fricke, 234 N.E.3d 159, 165 (Ind. 2024)). Summary judgment is proper 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). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Abbott v. State, 183 N.E.3d 1074, 1079 (Ind. 2022) (quoting Hughley, 15 N.E.3d at 1003).

[8] We consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the summary judgment motion. T.R. 56(C), (H). We resolve “[a]ll factual inferences and all doubts as to the existence of a material issue” in favor of the nonmovant. Zaragoza v. Wexford of Ind., LLC, 225 N.E.3d 146, 151 (Ind. 2024) (internal quotation marks omitted) (quoting Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012)). In so doing, “we give careful scrutiny to make sure the non-movant's day in court is not improperly denied.” Id. (internal quotation marks omitted) (quoting Siner v. Kindred Hosp. Ltd. P'ship, 51 N.E.3d 1184, 1187 (Ind. 2016)).

[9] “The party moving for summary judgment bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.” Abbott, 183 N.E.3d at 1079 (emphasis in original) (citing Sargent v. State, 27 N.E.3d 729, 731 (Ind. 2015)). Only if the movant meets this prima facie burden does the burden then shift to the nonmovant to “come forward with contrary evidence showing an issue for the trier of fact.” Abbott, 183 N.E.3d at 1079 (citing Hughley, 15 N.E.3d at 1003).

[10] SER90 sought summary judgment in relevant part on its claim for an account stated. “An account stated is an agreement between the parties that all items of an account and balance are correct, together with a promise, express or implied, to pay the balance.” Sollers Point Co. v. Zeller, 145 N.E.3d 790, 799–800 (Ind. Ct. App. 2020) (quoting Jackson v. Trancik, 953 N.E.2d 1087, 1091 (Ind. Ct. App. 2011)). So to prevail on its motion for summary judgment on its account stated claim, SER90 needed to show that (1) it and Romaine had agreed that the items and balance of Romaine's account with SER90 were correct, and (2) Romaine expressly or impliedly promised to pay that balance. See id. (quoting Jackson, 953 N.E.2d at 1091). Regarding the first element, an agreement regarding the balance of an account may be inferred if (1) a statement was delivered to the debtor and (2) the debtor failed “to object to the amount of the statement within a reasonable time.” Id. at 800 (quoting Jackson, 953 N.E.2d at 1091). If the debtor failed to object to the account until after the lender filed its complaint, that failure “will generally be considered a failure to object within a reasonable time” and will support an inference that the debtor impliedly agreed that the account balance is correct. Id. at 800 (quoting Jackson, 953 N.E.2d at 1091).

[11] Here, considering SER90's designated evidence in the light most favorable to Romaine shows that “[t]here is a current balance due on the loan of $26,308.86” and Romaine “has refused to repay” that amount. Appellant's App. Vol. II at 28. Aside from an unsworn allegation in its unverified complaint,⁴ there is nothing in SER90's designated evidence that establishes it ever communicated to Romaine, before it filed the complaint in May 2022, that he owed SER90 $26,308.86. While it is true that the parties were bound by the Agreement, the Agreement does not show that SER90 and Romaine had agreed that all items and the balance of Romaine's account with SER90 were correct; rather, the existence of the Agreement establishes only the parties’ obligations thereunder. Simply alleging, as SER90 did in its summary judgment briefing, that “there is a balance due on an account” is not enough to establish an account stated.

[12] We acknowledge that in opposition to SER90's summary judgment motion, Romaine designated correspondence sent to him in March 2022 on behalf of SER90 that states in relevant part, “․ SER90 lent to you the sum of Sixty-Five Thousand Dollars ($65,000.00) for which there remains a balance due to SER90 in the amount of $26,308.86.” Appellant's App. Vol. II at 56 (emphasis added). But SER90 did not designate similar evidence. It was SER90's burden to designate evidence demonstrating that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. See Siner, 51 N.E.3d at 1188–90 (considering only movants’ designated evidence to determine whether they met prima facie burden). Our Supreme Court has been clear that the nonmovant need not “come forward with contrary evidence” until the movant has made the requisite prima facie showing. Zaragoza, 225 N.E.3d at 151 (quoting Hughley, 15 N.E.3d at 1003); Pennington v. Mem'l Hosp. of S. Bend, Inc., 223 N.E.3d 1086, 1093 (Ind. 2024) (quoting Hughley, 15 N.E.3d at 1003); Abbott, 183 N.E.3d at 1079 (citing Hughley, 15 N.E.3d at 1003); Gaff v. Indiana-Purdue Univ. of Fort Wayne, 51 N.E.3d 1163, 1165 (Ind. 2016) (quoting Hughley, 15 N.E.3d at 1003). SER90 failed to make that showing here, so the burden does not shift to Romaine such that we can consider his designated evidence. See Siner, 51 N.E.3d at 1188–90; Zaragoza, 225 N.E.3d at 151 (quoting Hughley, 15 N.E.3d at 1003). Even if SER90 had carried its prima facie burden here, Romaine designated evidence demonstrating that he objected to the amount of the alleged debt almost immediately after he received a statement from SER90, so there was no agreement between the parties, see Sollers Point, 145 N.E.3d at 800 (quoting Jackson, 953 N.E.2d at 1091).

[13] Based on the foregoing, the trial court erred by granting summary judgment in favor of SER90 on its account stated claim. We therefore reverse that decision and remand for further proceedings not inconsistent with this opinion.

[14] Reversed and remanded.

FOOTNOTES

1.   Romaine does not include in his Appendix SER90's summary judgment motion, brief, or designation of evidence, all of which are necessary for deciding the issue Romaine raises on appeal. See Ind. Appellate Rule 50(A)(2)(f); see also id. 50(A)(2)(g), (h). Pursuant to Indiana Appellate Rule 27 and Indiana Evidence Rule 201, we have taken judicial notice of those filings. See Horton v. State, 51 N.E.3d 1154, 1156 (Ind. 2016) (taking judicial notice under Evidence Rule 201 of documents that were part of the Record on Appeal as defined in Appellate Rule 27).

2.   Romaine included in his Appendix only Sirhan's affidavit. Pursuant to Appellate Rule 27 and Evidence Rule 201, we have taken judicial notice of the rest of SER90's designated evidence, all of which is necessary for deciding this appeal, see App. R. 50(A)(2)(f). See Horton, 51 NE.3d at 1156.

3.   Romaine included only his affidavit and the assorted documents in his Appendix. Pursuant to Appellate Rule 27 and Evidence Rule 201, we have taken judicial notice of his brief, designation of evidence, and June 20 discovery responses, all of which are necessary for deciding this appeal, see App. R. 50(A)(2)(f). See Horton, 51 NE.3d at 1156.

4.   “Despite demand for repayment, Romaine has failed and/or refused to pay the balance owed to SER90.” Appellant's App. Vol. II at 19.

Felix, Judge.

Brown, J., and Scheele, J., concur.