James Stack, Jr., Appellant-Plaintiff/Counterclaim Defendant v. LLC (2026)

MEMORANDUM DECISION

Case Summary

[1] James Stack Jr. initiated the underlying suit against Midwest Investment Solutions, LLC (Midwest) and Kevin Ault [collectively, Defendants] alleging breach of contract and seeking declaratory judgment. Midwest and Ault filed separate motions to dismiss Stack's complaint pursuant to Indiana Trial Rule 12(B)(6). At some point in the litigation, Defendants designated evidence outside the pleadings and those motions were converted to motions for summary judgment. However, there was much disagreement amongst the parties about whether (and when) this occurred.

[2] At the summary judgment hearing, the parties and trial court only discussed procedural issues related to that disagreement. After taking the procedural issues under advisement for a very short time, the court entered an order granting the Defendants’ motions for summary judgment. Stack appeals, asserting he was not afforded the opportunity to be heard on the merits of the summary judgment motions before the court entered its order, and thus, he was denied procedural due process. Finding as much, we reverse and remand.

Facts and Procedural History 1

[3] In spring 2018, Springbrook Village at Batesville, LLC (Springbrook) was formed to purchase and develop land in Batesville for a senior living community. There were three founding members: (1) The Rego Family, LLC,² (2) Stack, and (3) Midwest.³ They executed an Operating Agreement (Agreement) which governed Springbrook's operations, including dispute resolution.

[4] In late 2022, a leadership dispute arose between Stack and Ault. At that time, Springbrook was being managed by Ault. Pursuant to the Agreement's Alternative Dispute Resolution clause, Stack filed a Demand for Mediation with the American Arbitration Association. In January 2023, Springbrook claimed Stack's membership interest in Springbrook hadn't vested because he failed to make his initial capital cash contribution as the Agreement required, and it “decline[d] [ ] Stack's [r]equest for [m]ediation.” Appellant's Appendix Vol. 2 at 86.

[5] In November, Stack filed a complaint against Midwest and Ault, alleging Ault breached the Agreement and seeking damages and declaratory judgment on several issues. In February 2024, Midwest filed a motion to dismiss Stack's complaint under Indiana Trial Rule 12(B)(6) and a motion to compel arbitration. It filed an affidavit in support of its motion to dismiss and requested a hearing on all matters. Midwest maintained its position that Stack was not a member of Springbrook and thus, he lacked standing and his complaint should be dismissed pursuant to Rule 12(B)(6). In the alternative, Midwest claimed that if the court found that Stack was a member, the Agreement required the matter to be sent to arbitration.

[6] A week later, Ault filed a separate Rule 12(B)(6) motion to dismiss Stack's breach of contract claim against him, alleging that Stack was not a member of Springbrook and that he had no claim against Ault, individually, because only Midwest was party to the Agreement. Unlike Midwest, Ault did not attach an affidavit or any other evidence to his motion. The next day, he filed an answer to Stack's complaint, asserting affirmative defenses and a counterclaim.⁴

[7] In April, Midwest requested permission from the court to submit another affidavit in support of its motion to dismiss. In Stack's objection, he acknowledged that the court hadn't yet indicated whether it would consider the extraneous evidence Midwest submitted with its Rule 12(B)(6) motion, but if it did, he asked the court to continue the motion to dismiss hearing set on April 16 and that he be given additional time to respond and designate his own evidence. The court ultimately granted the motion to continue and did not address the other issues raised by Stack.

[8] In May, Midwest and Ault filed a joint praecipe for a hearing on all the motions pending before the court and requested that “Defendants’ T.R.12(B)(6) Motions, with attached Affidavits, [ ] be treated as Summary Judgment Motions under T.R12(B)(8) [sic].” Id. at 138. The next day, the court entered an order scheduling a hearing and notifying the parties “that as Affidavits are attached to the Defendants’ ‘Motion to Dismiss’ the matter is now converted to a Summary Judgment Proceeding.” Id. at 140. Up to that point, Ault had not attached any affidavits in support of his motion to dismiss.

[9] Stack objected to a hearing on Midwest's motion for summary judgment because “Midwest [sought] to compel arbitration of the dispute between itself and [ ] Stack[,] ․ [and] whether that dispute [was] arbitrable [was] a threshold issue that [had to] be determined before ruling on any dispositive motions concerning Midwest.” Id. at 144-45 (internal emphasis omitted). He also asserted that because the motion had been converted to one for summary judgment, he was entitled to do discovery before responding. In his response, Stack clarified that despite his arguments against proceeding with a summary judgment hearing, he did “not object to holding a hearing on Ault's Motion to Dismiss, [Stack's] Motion to Strike Ault's Counterclaim, and Midwest's Motion to Compel.” Id. at 144. The court set all pending motions for a hearing in June 2024.

[10] The June hearing was continued to September, and at it, the trial court only addressed discovery issues. In the court's discovery order, the court referenced Midwest's motion as one “converted to summary judgment” and to Ault's as a “Motion to Dismiss.” September 23, 2024 Order Setting Discovery Schedule.⁵ Stack was granted an extension of time during which he timely responded to Midwest's summary judgment motion and filed his designation of evidence, which included an affidavit by Stack. The court then set Midwest's motion for summary judgment for a hearing.

[11] Between December 9, 2024 and the hearing held on these matters on May 14, 2025, a flurry of filings by all the parties occurred. Defendants jointly moved to strike portions of Stack's designated affidavit, filed a joint reply brief, and designated supplemental evidence in support of summary judgment on January 20, 2025. Ultimately, the trial court permitted Stack to file a reply brief and supplement his designated evidence in opposition to the motions for summary judgment. Throughout this time period, Stack continued to object to the Defendants’ assumption that Ault's motion to dismiss had been converted to a motion for summary judgment, as Ault had yet to submit evidence outside of the pleadings in support of his motion.

[12] On February 4, Stack filed his response to Defendants’ motion to strike, and he designated supplemental evidence in opposition to Midwest's motion for summary judgment—including a supplemental affidavit from Stack in which he added another paragraph. As for Ault, Stack argued that Ault's motion to dismiss had never been officially converted to a motion for summary judgment because, before January 20, he hadn't “file[d] any materials outside the pleadings to support his Motion to Dismiss.” Appellant's App. Vol. 2 at 88. So, Stack requested “formal notice from the Court and an opportunity to respond” if the trial court clarified that Ault's motion had in fact been converted to a motion for summary judgment. Id. at 93.

[13] The next month, Midwest filed a motion to strike portions of Stack's supplemental affidavit, challenging the same twenty-nine out of fifty-nine paragraphs named in its earlier motion to strike ⁶ with the addition of the new paragraph, Paragraph 60. On March 7, the court granted the motion to strike with the following order:

Comes now the Court on Defendant, Midwest Investment Solution LLC's Motion to Strike Portions of Plaintiff James Stack Jr.’s February 4, 2025, Supplemental Affidavit in Opposition to Summary Judgement [sic] and hereby strikes Portions of Plaintiff James Stack Jr.’s February 4, 2025 Supplemental Affidavit in Opposition to Summary Judgement [sic]. The Franklin County Clerk is hereby ordered to strike this filing from the record.

May 7, 2025 Order to Strike.⁷

[14] Stack filed a motion to reconsider the court's order and requested a hearing on the matter. The court held the motion to reconsider hearing on May 14, 2025 in conjunction with the hearing on the motion(s) for summary judgment. At the hearing, the trial court initially addressed Stack's motion to reconsider, and after Stack expressed his confusion as to what was actually stricken—the entire affidavit, the paragraphs challenged, or something else—the court clarified that it had intended to only strike Paragraph 60.

[15] The court then heard argument on the procedural issues related to the pending motions in the case: specifically, whether and when Ault's motion to dismiss was ever properly converted to a motion for summary judgment and whether Midwest's motion to compel arbitration was a threshold matter that had to be resolved before the court determined if summary judgment was appropriate. Towards the end of the summary judgment discussion, the court said:

[T]he Court's opinion is I think we're at the point, with the amount of evidence that's been ․ designated, the amount of evidence that's been argued back and forth in the motion to strike, I think we are at the point of it being a motion for summary judgment.

But I think ․ that cases should be decided on the merit[s] and not on procedural matters if they are at all possible. And I think given the confusion that this is, I think the fair thing to do in this matter is, especially given that there is 12(B)(6), what was designated and what wasn't designated, in my opinion, what should be done at this stage is now that it's clear on the record, that this – I believe this has been converted to a motion for summary judgment. So there should not be any mistake in that matter, that the parties should be given an opportunity to brief an actual summary judgment brief on this because I think given the motion to strike, that changes things as well. I think that ․ changes things, so that's where I think we're at.

Transcript at 17. Stack agreed with that approach, but Defendants did not, arguing that the court's idea “procedurally[,] [was] wrong.” Id. at 18. Defendants claimed that because Stack did not respond, “if [their motion] can stand on its own, ․ you have no choice but to grant it.” Id. The parties then reiterated their arguments about how they thought the court could proceed procedurally. See id. at 19-20.

[16] After hearing their arguments, the court indicated it would take a recess and review the record and case law. But before it did so, Stack's counsel suggested that in lieu of a recess, the court could rule on the motion to compel arbitration, “take everything else under advisement and give [ ] a ruling, and we'll come back.” Id. at 22. Counsel for the Defendants disagreed and argued again that the court was procedurally required to grant the motion for summary judgment. The court responded by saying, “Given all of that, I think I am going to take this all under advisement. I will put out an order letting you know the next steps on this matter.” Id.

[17] Four days later, the court entered an order granting “Defendants’ Motion for Summary Judgment.” Appellant's App. Vol. 3 at 96. The court's reasoning was as follows:

[ ] The only issue of import in this matter before the Court is whether Plaintiff was a member of Springbrook ․

[ ] The ultimate conclusion of that issue, however, leads to the same disposition in this Court. If Plaintiff was not a member of Springbrook, then he lacks standing to bring this suit. On the contrary, if Plaintiff was a member of Springbrook, then he was required by Article XI of the Operating Agreement to resolve any issues in arbitration proceedings. Either way, proceedings in this Court are not the proper venue for disposing of these issues between these parties.

Id.

[18] The trial court did not rule on Midwest's motion to compel arbitration or Ault's counterclaim for damages. On June 20, Stack filed a motion to reconsider the court's grant of summary judgment or, in the alternative, to certify its order for interlocutory appeal. The court denied Stack's motion in its entirety. On June 25, the court entered an order recognizing its failure to rule on the motion to compel arbitration. The court denied the motion to compel arbitration nunc pro tunc to May 19, 2025 and ordered that its “May 19, 2025 order [was] a final order disposing of all matters in the [case.]” Id. at 105. Stack now appeals.⁸

Discussion and Decision

[19] Stack argues the trial court erred in granting Defendants’ motions for summary judgment without providing him a hearing on the merits of the motions.⁹ He asserts that that he was denied a meaningful opportunity to be heard on the merits of the motions for summary judgment in violation of Indiana Trial Rule 56(C) and his right to due process. “[T]he opportunity to be heard at a meaningful time and in a meaningful manner” is foundational to the constitutional right to procedural due process. Perdue v. Gargano, 964 N.E.2d 825, 832 (Ind. 2012) (citing Goldberg v. Kelly, 397 U.S. 254, 267 (1970)). “An opportunity to be heard includes the right to present evidence, confront adverse witnesses, make arguments, and receive judicial findings based upon the evidence and arguments.” Roy A. Miller & Sons, Inc. v. Indus. Hardwoods Corp., 775 N.E.2d 1168, 1171 (Ind. Ct. App. 2002).

[20] Although a hearing on a summary judgment motion is not always mandatory, one is mandatory if any party timely moves for such a hearing. Ind. Trial Rule 56(C). Absent such circumstances, the court may nonetheless decide to hold a hearing. Id. Regardless, “[a] party is denied due process when he is denied the opportunity to argue his case to the trial court after [a] court has determined it would hear argument.” Chandler v. Dillon ex rel. Est. of Bennett, 754 N.E.2d 1002, 1006 (Ind. Ct. App. 2001).  ¹⁰

[21] Here, the court held a hearing intended to address the motions for summary judgment. However, it is clear from the record that the merits of the motions were never addressed by either party. The trial court never reached the parties’ substantive argument because there was significant confusion over multiple procedural matters, one of which was whether Ault's motion was ever actually converted into a motion for summary judgment. The entire discussion of summary judgment matters focused on procedure. The court then told the parties that it believed the best way forward was to give both parties “an opportunity to brief an actual summary judgment brief on this because ․ given the motion to strike, that changes things as well.” Tr. at 17. While Defendants voiced their disagreement with that approach, the discussion never ventured to the merits of the Defendants’ motions for summary judgment—that is, whether Stack was a member of Springbrook with standing to maintain the lawsuit.

[22] Stack suggested that instead of briefly recessing so the court could decide how to move forward, it could rule to compel arbitration and then “take everything else under advisement and give [ ] a ruling, and we'll come back.” Id. at 22. Despite Defendants’ continued disagreement to this plan, the court told the parties that, “[g]iven all of that, I think I am going to take this all under advisement. I will put out an order letting you know the next steps on this matter.” Id. Then instead of doing so, it issued its order granting summary judgment.

[23] Nonetheless, Defendants claim that by suggesting the court “take everything else under advisement[,]” Stack “invit[ed] [the] error of which he now complains.” Appellee's Brief at 18. We disagree. The record shows that in the context of the entire conversation between the court and the parties, Stack had requested the court take the procedural issues in the case under advisement. Read in that same context, it is reasonable to conclude that the trial court's statement that it would enter an order about “next steps” was its confirmation that it would rule on the procedural issues rather than the substance of the pending motions, especially in light of the fact that the parties hadn't addressed those substantive issues at the hearing.

[24] It is clear from the record that the parties were never given the opportunity to argue the merits of the matters upon which the trial court ruled in its order granting summary judgment. As such, there was essentially no hearing at which the parties had “the opportunity to be heard”—i.e., make arguments—pertaining to whether there was a genuine issue of material fact. Perdue, 964 N.E.2d at 832. Given the requirements of procedural due process, this was reversible error and the court's order granting Defendants’ motions for summary judgment cannot stand.

Conclusion

[25] For the above reasons, we reverse the trial court's grant of summary judgment in favor of Defendants and remand with instructions to hold a hearing on the merits of the motions for summary judgment.

[26] Reversed and remanded.

FOOTNOTES

2.   In June 2021, The Rego Family, LLC assigned its interest in Springbrook to Stack Business Ventures, Inc., a corporation owned by Stack.

3.   Ault is a member of Midwest.

4.   In his counterclaim, Ault requested that Stack and his attorney be ordered to pay damages on the basis that Stack's complaint was “frivolous, groundless, unreasonable[,] and vexatious.” Id. at 63. In response, Stack filed a motion to strike, or alternatively, to dismiss Ault's counterclaim. He also filed briefs in opposition to Midwest's motions to dismiss and compel arbitration.

5.   Accessed via Odyssey.

6.   Defendants’ original motion to strike sought to strike paragraphs 4, 9-12, 16-19, 21-25, 27, 32, 34-35, 37, 39-43, 45, 47-49, and 52 (inclusive) for myriad reasons, including that they contained inadmissible hearsay, opinions, or legal conclusions. See Appellee's App. Vol 3 at 2-7.

7.   Accessed via Odyssey.

8.   On appeal, Defendants assert that Stack's appeal was untimely and violates Indiana Appellate Rule 9(F)(3). Addressing timeliness, Stack filed his notice of appeal thirty days after the trial court's June 25, 2025 order, which was its final appealable order in the case. Although Defendants argue Stack was required to appeal within thirty days of the court's May 19, 2025 order on summary judgment, we remind Defendants that the order was not a final, appealable order until the June 25 nunc pro tunc order deemed it as such. Finding Stack's appeal was untimely for failing to predict that the court would enter a nunc pro tunc order making the May 19 order final would be absurd and would unfairly deny Stack his right to appeal. Thus, Stack's appeal was not untimely.As for Defendant's argument pursuant to Appellate Rule 9, Rule 9(F)(3) requires the notice of appeal to designate the order being appealed. Defendants claim that the absence of the trial court's summary judgment order in Stack's notice of appeal is fatal to his appeal. Stack disputes that its absence is erroneous, but even if we were to assume it was, such error is not fatal to his appeal. See Sumrall v. LeSEA, Inc., 234 N.E.3d 230, 241 (Ind. Ct. App. 2024) (concluding that the appellant's failure to include the proper order in his notice of appeal was not fatal where he included the order in his appendix and the opposing party addressed the substance of the issues stemming from that order in their brief).

9.   We acknowledge that the trial court's order granting summary judgment was necessarily intertwined with its order denying the motion to compel arbitration. Indeed, in the summary judgment order, the court found that “if Plaintiff was a member of Springbrook, then he was required by Article XI of the Operating Agreement to resolve any issues in arbitration proceedings.” Id. at 96. Pursuant to the Indiana Uniform Arbitration Act, whether the parties should have been compelled to arbitrate this matter was a threshold issue, and the court should have ruled on the motion to compel arbitration before ruling on any dispositive motions. See Ind. Code § 34-57-2-3(a) (“On application of a party showing an agreement [to arbitrate], and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration.”) (emphasis added).Here, the trial court should have determined whether Stack was a member of Springbrook subject to the Agreement and then, depending on that determination, potentially rule on Stack's waiver argument. After those determinations, the court could rule on the motion to compel arbitration. It was only then that the court could possibly rule on the motion for summary judgment. However, neither party challenges the court's order denying the motion to compel arbitration. Thus, despite the entanglement of the court's two orders, we limit our review to the arguments made on appeal and do not disturb the court's ruling on the motion to compel arbitration.

10.   While it is not clear from the record by which mechanism the May 14, 2025 hearing came to be scheduled—at the insistence of a party or by the court on its own motion—such a matter is not in dispute. Stack's contention relates only to the substance of the hearing itself.

DeBoer, Judge.

Brown, J., and Altice, J., concur.