MARTIN v. DLZ CONSTRUCTION LLC LLC LLC (2026)

MEMORANDUM DECISION

Case Summary

[1] Joshua Martin, pro se, appeals the trial court's grant of summary judgment to Shannon Investments, LLC (“Shannon”), Key Renovation LLC (“Key”), and DLZ Construction, LLC (“DLZ”) (collectively, “Defendants”) on all of Martin's claims. Martin raises two issues on appeal, which we consolidate and restate as the following dispositive issue: whether the trial court erred in granting summary judgment because there are genuine issues of material fact regarding Martin's negligence, trespass, and criminal mischief claims. Concluding that there are, we reverse and remand for further proceedings.¹

Facts and Procedural History

[2] Martin owns the property located at 1229 Spruce Street in Indianapolis, and Shannon owns the adjacent property located at 1225 Spruce Street. In July 2023, Shannon entered into a construction contract with Key to perform renovation work at Shannon's property. In January 2024, Key entered into a subcontractor agreement with DLZ to perform drywall installation and finishing work, “which also involved installing a reinforced foundation.” Martin's App. v. 5 at 63-64. In April 2024, Martin discovered that “the copper lines and thermostat wire of his air conditioning unit had been severed and cut off, both at ground level and at the point of entry into his home” and close to where he believed Defendants had dug a trench. Martin's App. v. 2 at 32.

[3] On August 30, 2024, Martin pro se, filed his Complaint against Defendants for damages allegedly resulting from their negligence. On December 17, 2024, Martin filed his Second Amended Complaint against Defendants in which he again raised the negligence claim, including a claim of negligence liability under the doctrine of res ipsa loquitur; a civil criminal mischief claim; and a civil trespass claim.² Martin requested compensatory damages, “plus any additional non-economic damages[,]” on his negligence and trespass claims and treble damages on his criminal mischief claim. Id. at 34.

[4] On May 15, 2025, Key moved for partial summary judgment and asserted that, as a matter of law, Martin's recoverable damages were limited to the cost of repair—not the cost of replacement—of Martin's air conditioning unit.³ Key's designated evidence included an Affidavit of Isaiah Lugo, “the principal member and owner” of Key, which included the following statements:

6. During the construction renovation, at no time did anyone from Key Renovation, LLC or DLZ Construction, LLC enter upon the property of the Plaintiff.

7. At no time during the renovations did any member of Key Renovation, LLC or DLZ Construction, LLC cut the line for the Plaintiff's air conditioning unit.

* * *

10. According to Alberto Nunez of Nunez HVAC, the Plaintiff's air conditioner could be repaired instead of replaced.

Martin's Supp. App. v. 7 at 29, 30.

[5] On June 17, Martin filed his response in opposition to Key's motion for partial summary judgment, including a designation of evidence allegedly showing genuine issues of material fact precluding summary judgment. Martin's designation included his own “Affidavit of Personal Impact” in which he averred that the damage to his air conditioning system on his property “was a direct consequence of the construction work being performed by the Defendants at the adjacent property located at 1225 Spruce Street.” Martin's App. v. 4 at 13-14. Martin's affidavit also stated that Defendants’ actions “caused [him] significant economic losses, severe emotional distress, and a major disruption to [his] life and peaceful enjoyment of [his] property.” Id. at 15. Martin's designated evidence included copies of text messages between him and Shannon's representative, Erica Walters; “Invoices/Receipts” regarding the cost of replacing the air conditioning system, Id. at 3; Martin's affidavit regarding his lost wages; photographs he took of the severed air conditioning lines; and Martin's report to police of the damages to his air conditioning system.

[6] On July 3, Key moved to strike portions of Martin's response in opposition to summary judgment as “improper and impertinent.” Defendants’ Joint App. v. 2 at 34. Specifically, Key moved to strike all of Martin's Affidavit of Personal Impact; Martin's alleged references to settlement negotiations; documents relating to the reports to police; “hearsay statements and legal conclusions”; and “scandalous, inflammatory and unsupported allegations[.]” Id. at 35. On July 7, Martin filed a response to the motion to strike.

[7] On July 20, Martin filed his “Supplemental Designation of Evidence in Opposition to ․ Motion for Partial Summary Judgment[,]” which included his “Supplemental Affidavit” regarding the lack of “an active HVAC contractor license” for Alberto Nunez and Nunez HVAC; Martin's supplemental affidavit regarding “Ongoing Property Impact”; and statements and photographs of his property allegedly showing Defendants’ “ongoing trespass[.]” Martin's App. v. 5 at 35.

[8] On July 21, Key filed a motion for summary judgment on all of Martin's claims. In support, Key designated evidence that included Martin's complaint and amended complaint; Lugo's Affidavit from Key's motion for partial summary judgment; one of Martin's photographs of the fence and property line at the boundary of the two properties; Martin's “Response in Opposition to [Key's] Motion for Partial Summary Judgment”; and Martin's photograph of portions of a text message between him and Walters. Martin's Supp. App. v. 7 at 22. In its summary judgment memorandum, Key asserted that Martin's allegedly cut air conditioning lines “were located outside and exposed—for an extended period of time—to numerous sources of harm unrelated to Key's work.” Id. at 13. Key also asserted that “alternative causes of harm had an ample opportunity to manifest during the approximately ten (10) month time interval spanning Key's commencement of services and [Martin's] discovery of the condition and damages.” Id. And Key asserted that it could not be held liable for any negligence of its subcontractor, DLZ.

[9] On August 8, DLZ also moved for summary judgment against Martin and designated evidence in support, including Martin's Response in Opposition to Key's Motion for Partial Summary Judgment; Martin's June 11, 2025, email to Defendants’ counsel stating that Martin's fence is not on the property line but further in on his property and pointing to “a piece of lumber attached to the fence that is solely on [Martin's] property[,]” id. at 196; and a “[v]ideo recording of the alleged damage produced with [sic] [Martin] on June 26, 2025, [and] correspondence and images captured from the video[,]” id. at 117.⁴ DLZ cited the above evidence as supporting its assertion that the cut wires on Martin's property were “above ground level and ․ outdoors[.]” Id. at 109.

[10] Martin did not file a response to Defendants’ motions for summary judgment beyond what he had already filed in his response to Key's still-pending motion for partial summary judgment. On August 14, the trial court set a hearing for September 10 “on all pending dispositive or partially dispositive motions.” Martin's App. v. 2 at 15. At the beginning of the hearing, the court noted that it had before it “four pending motions; three are Trial Rule 56 motions for summary judgment[⁵ ] and one is a motion to strike corollary to the defendant Key's motion for partial summary judgment.” Tr. at 4. The court heard arguments of the parties on all four motions, took all motions under advisement, and ordered the parties to submit proposed orders on all motions. On September 25, the court issued its order granting summary judgment to Defendants on all of Martin's claims. The court did not rule on the motion to strike or motion for partial summary judgment. This appeal ensued.

Discussion and Decision

[11] Martin appeals the trial court order granting summary judgment to Defendants. We review a grant or denial of a motion for summary judgment under the same standard used by the trial court; that is,

[t]he moving party bears the initial 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. Summary judgment is improper if the movant fails to carry its burden, but if it succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. In determining whether summary judgment is proper, the reviewing court considers only the evidentiary matter the parties have specifically designated to the trial court. See Ind. Trial R. 56(C), (H). We construe all factual inferences in the non-moving party's favor and resolve all doubts as to the existence of a material issue against the moving party.

Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012) (quotation marks and citations omitted). “By definition, cases that hinge upon disputed facts are inappropriate for summary judgment, because weighing evidence—no matter how decisively the scales may seem to tip—is a matter for trial, not summary judgment.” In re Ind. State Fair Litig., 49 N.E.3d 545, 548 (Ind. 2016) (citation modified).

[12] For purposes of summary judgment, 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. Hogan v. Magnolia Health Sys. 41, LLC, 161 N.E.3d 365, 369 (Ind. Ct. App. 2020) (quoting Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)), trans. denied. “In determining whether issues of material fact exist, we neither reweigh evidence nor judge witness credibility but accept as true those facts established by the designated evidence favoring the non-moving party.” Mann v. Amos, 186 N.E.3d 105, 115 (Ind. Ct. App. 2022) (citation modified), trans. denied. In reviewing a summary judgment, we “consider the pleadings, depositions, affidavits, and admissions in a light most favorable to the non-moving party[,]” Short v. Haywood Printing Co., 667 N.E.2d 209, 211 (Ind. Ct. App. 1996), trans. denied, and “[a]ny doubts as to any facts or inferences to be drawn from those facts must be resolved in favor of the nonmoving party[,]” Mann, 186 N.E.3d at 115. We “consciously err on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004. Thus, “summary judgment may be precluded by as little as a non-movant's mere designation of a self-serving affidavit[.]” Abbott v. State, 183 N.E.3d 1074, 1079 (Ind. 2022).

[13] As an initial matter, Defendants contend that they are entitled to summary judgment because Martin failed to file a response to their motions for full summary judgment. In support, they point to Trial Rule 56(C), which gives a nonmovant thirty days after service of the summary judgment motion to file a response, and caselaw describing the “bright-line rule” that a trial court may not consider summary judgment materials that are filed after the thirty-day time limit, “regardless of the circumstances.” Andry v. Thorbecke, 218 N.E.3d 600, 604 (Ind. Ct. App. 2023), trans. denied. However, at the time of Defendants’ motions for summary judgment, Martin had already filed a response and designations of evidence in opposition to Key's still-pending motion for partial summary judgment.⁶ Moreover, in their designations of evidence in support of their motions for full summary judgment, both Key and DLZ designated Martin's response to the motion for partial summary judgment. “A party responding to a motion for summary judgment is entitled to take the motion as the moving party frames it.” Reiswerg v. Statom, 926 N.E.2d 26, 30 (Ind. 2010). Thus, Martin's responses to Key's motion for partial summary judgment, including his designation of evidence, were before the trial court for its consideration when it ruled on the motions for full summary judgment and are before us now on appeal.⁷ Cf., e.g., Benziger v. Radabaugh, 267 N.E.3d 1149, 1155 (Ind. Ct. App. 2025) (disregarding a nonmovant's summary judgment filings that had been filed only after the thirty-day time limit of Rule 56(C)).

[14] Further, the “lack of opposition to another's motion for summary judgment does not result in an automatic summary judgment.” Countrywide Home Loans, Inc. v. Holland, 993 N.E.2d 184, 189 (Ind. Ct. App. 2013). Rather, Martin, as the nonmovant, has no burden of production at all on Defendants’ motions for summary judgment unless and until Defendants carry their initial burden of designating undisputed evidence that affirmatively negates a required element of each of Martin's claims. See, e.g., Estate of Sain v. Sain, 254 N.E.3d 1136, 1140 (Ind. Ct. App. 2025), trans. denied. In addition, we note that, “[w]hile a party who does not respond to a motion for summary judgment may be limited to the facts established by the movant's submissions, such failure to respond does not preclude argument of the relevant law on appeal.” Harkins v. Westmeyer, 116 N.E.3d 461, 469 (Ind. Ct. App. 2018) (citation modified).

[15] Here, Defendants have not carried their initial burden to designate undisputed evidence that negates a required element of each of Martin's negligence, trespass, and criminal mischief claims. We address each such claim in turn.

Negligence

[16] Injured parties may recover for their damages under a negligence claim by proving: (1) the defendant owed them a duty; (2) the defendant breached that duty through conduct that fell below the appropriate level of care; and (3) the defendant's breach caused injury to the plaintiff(s). Cave Quarries, Inc. v. Warex LLC, 240 N.E.3d 681, 685 (Ind. 2024). Summary judgment is rarely appropriate in negligence cases. See, e.g., Kader v. State, Dep't of Corr., 1 N.E.3d 717, 726 (Ind. Ct. App. 2013) (citing Kennedy v. Guess, Inc., 806 N.E.2d 776, 783 (Ind. 2004)). “This is because issues of negligence, contributory negligence, causation, and reasonable care are more appropriately left for the determination of a trier of fact.” Id. (citation modified). While the element of duty is generally a question of law to be determined by the court, the elements of breach and proximate cause “generally present questions of fact that must be determined by a factfinder.” Smith v. Walsh Constr. Co. II, 95 N.E.3d 78, 84 (Ind. Ct. App. 2018), trans. denied. Thus, whether a party breached its duty and thereby proximately caused injury are factual questions “generally not appropriate for summary disposition.” Williams v. Ind. Dep't of Corr., 142 N.E.3d 986, 1008 (Ind. Ct. App. 2020) (internal quotation and citation omitted).

[17] Here, Martin raised a general negligence claim against Defendants. Martin asserted that they “owed a duty of care to [him] to protect his property from damage during the course of construction at the Project site[;]” that they “breached this duty of care by negligently causing damage to [his air conditioning] system”; and “[a]s a direct and proximate cause of Defendants’ negligence, [Martin] suffered damages․.” Martin's App. v. 2 at 33. He further claimed that “[t]he nature and location of the damage, as depicted in [photographs], gave rise to an inference of negligence on the part of the Defendants under the doctrine of res ipsa loquitur.” Id. at 32.

[18] Regarding Martin's general negligence claim, as a matter of law, a contractor has a duty to use reasonable care in both its work and the course of its performance of the work to “those who might reasonably be foreseen as being subject to injury by the breach of the duty.” Briesacher v. Specialized Restoration & Constr., Inc., 888 N.E.2d 188, 192 (Ind. Ct. App. 2008) (citing Peters v. Forster, 804 N.E.2d 736, 742 (Ind. 2004)). Thus, a contractor is liable for injuries to third persons “where the work is reasonably certain to endanger third parties if negligently completed.” Id.

[19] Defendants have failed to designate evidence showing it is undisputed that damage to Martin's air conditioning lines from Defendants’ construction work was not foreseeable. Nor have Defendants designated evidence showing it is undisputed that none of them cut Martin's air conditioning lines during construction. While Lugo avers in his affidavit that no one from Key or DLZ entered onto Martin's property or cut the air conditioning lines, and DLZ stated that it “believe[ed] the excavation work near the damage [to Martin's property] was completed by [the power company],” Martin's App. v. 5 at 64, Martin stated in his affidavit that “the damage to [his] air conditioning system—specifically the severed copper lines and thermostat wire—was a direct consequence of the construction work being performed by the Defendants at the adjacent property․.” Martin's App. v. 4 at 13-14. Such an affidavit, though self-serving, is sufficient to create a genuine issue of material fact precluding summary judgment. See, e.g., Abbott v. State, 183 N.E.3d 1074, 1079 (Ind. 2022). In addition, the type and extent of damages to Martin are also disputed material facts.⁸

[20] Regarding Martin's res ipsa loquitur theory of negligence, Defendants point out that Martin cannot prevail under such a theory unless he can show (1) the injuring instrumentality is under the exclusive control of the defendant “at the time of the alleged negligent act[,]” Rector v. Oliver, 809 N.E.2d 887, 892 (Ind. Ct. App. 2004), trans. denied, and (2) “the accident is one which in the ordinary course of things does not happen if those who control the instrumentality use proper care[,]” Isgrig v. Trs. of Ind. Univ., 256 N.E.3d 1238, 1247 (Ind. 2025). Defendants contend that Martin “cannot prove the requisite elements of res ipsa loquitur[,]” Key's Br. at 12, because he cannot show that Defendants had “exclusive control” over the “severed wiring” that was “above ground and outside [Martin's] home,” DLZ's Br. at 11. Defendants designated evidence, such as photographs of the severed wires, that shows the air conditioning wires were “exposed to all the risks that an outdoor environment creates,” such as “weather,․ animals, passers-by and would-be vandals.” Id.

[21] However, as Martin points out, the “injuring instrumentality” in this case is not the air conditioning wires themselves; those are the property that allegedly was damaged.⁹ Rector, 809 N.E.2d at 892. Rather, Martin alleges that the “injuring instrumentality” is the equipment that Defendants used in the construction project to damage the air conditioning wires. Id. And Defendants have not designated any undisputed evidence showing they did not have “management or exclusive control” of their own equipment during construction work or that they did not use that equipment to dig the trench next to the severed air conditioning wires. Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind. Ct. App. 1994), trans. denied. Whether Defendants had such exclusive control is a disputed issue of material fact precluding summary judgment under the res ipsa loquitur doctrine. See Isgrig, 256 N.E.3d at 1247 (emphases added) (“To prove the element of exclusive control, it is not necessary for the plaintiff to eliminate every other possibility other than the defendant's negligence as a cause․. Therefore, the trier of fact is the one presented with a number of different causes or inferences of negligence, and we leave it to them to make their determination.”).

[22] Keeping in mind that any doubts as to any facts or inferences to be drawn from those facts must be resolved in favor of Martin, the nonmoving party, see Mann, 186 N.E.3d at 115, we conclude that Defendants have failed to carry their initial burden of making a prima facie showing that there are no genuine issues of material fact regarding Martin's negligence claim. Therefore, the trial court erred in granting Defendants’ motions for summary judgment on that claim.

Trespass

[23] Martin also raised a claim that Defendants trespassed onto his property when they dug the trench and thereby caused damage to the AC lines without Martin's consent. One commits trespass when one “knowingly or intentionally interferes with the possession or use of the property of another person without the person's consent[.]” Ind. Code § 35-43-2-2(b)(4). One who “suffers a pecuniary loss as a result of a violation of [the law against trespass]․ may bring a civil action against the person who caused the loss for [damages].” I.C. § 34-24-3-1. To be liable for a trespass, “ ‘it is not necessary that the trespasser intend to commit a trespass or even that he know that his act will constitute a trespass[.]’ ” Garner v. Kovalak, 817 N.E.2d 311, 314 (Ind. Ct. App. 2004) (quoting Hawke v. Maus, 226 N.E.2d 714, 716 (Ind. Ct. App. 1967)). All that is required for trespass is “ ‘that there be an intentional act and an intent to do the very act which results in the trespass.’ ” Id.

[24] Martin's trespass claim is that Defendants intentionally entered onto his property to dig the trench, and that he suffered damages as a result of that trespass. Although Defendants’ designated evidence includes Lugo's sworn statements that Defendants did not enter onto Martin's property during construction and that Martin's fence is where the border to his property line begins, they have failed to show that those alleged facts are undisputed. Rather, it is clear from the designated evidence that the following material facts are disputed: whether the trench is on Martin's property; whether Defendants entered onto Martin's property; whether Defendants dug the trench; and whether Defendants’ construction work caused the damage to Martin's air conditioning lines. The trial court erred when it granted summary judgment to Defendants on Martin's trespass claim.

Criminal Mischief

[25] Finally, Martin raises a claim that Defendants committed criminal mischief when they damaged his air conditioning system without his consent during their construction. One commits criminal mischief when one “recklessly, knowingly, or intentionally damages or defaces property of another person without the other person's consent.” I.C. § 35-43-1-2(a). One who “suffers a pecuniary loss as a result of a violation of [the law against trespass]․ may bring a civil action against the person who caused the loss for [damages].” I.C. § 34-24-3-1.

[26] Defendants have failed to carry their initial burden of showing that there are no genuine issues of material fact regarding Martin's criminal mischief claim, and, Court of Appeals of Indiana | Memorandum Decision 25A-CT-2444 | March 5, 2026 Page 16 of 18 again, it is clear from the designated evidence that the relevant facts are very much in dispute. Martin asserts that Defendants damaged his air conditioning wires when they dug a trench close to those wires, causing him to suffer a pecuniary loss. Defendants assert that they did not dig the trench next to the air conditioning wires and that they did not cut the wires. These are genuine issues of material fact that must be resolved by a trier of fact. The trial court erred in granting summary judgment on the criminal mischief claim.

Conclusion

[27] Because Defendants have failed to carry their initial burden of designating evidentiary matter that shows there is no genuine issue as to any material fact regarding Martin's negligence, trespass, and criminal mischief claims, the trial court erred in granting summary judgment to Defendants on those claims. Therefore, we reverse and remand for additional proceedings consistent with this decision.

[28] Reversed and remanded.

FOOTNOTES

1.   Because we reverse summary judgment, we do not address Martin's claim that he should not be penalized on summary judgment for Defendants’ procedural and discovery delays.

2.   Martin's amended complaint did not include the “breach of contract” and “duty to warn” claims he had raised in his original complaint. Martin's Supp. App. v. 7 at 27.

3.   Key's memorandum and designation of evidence in support of its motion for partial summary judgment are not included in the record on appeal. We were able to access those documents in the trial court's record via the Odyssey case management system.

4.   The video to which DLZ referred is not in the record on appeal.

5.   The three motions were Key's motion for partial summary judgment, Key's motion for summary judgment, and DLZ's motion for summary judgment.

6.   Martin asserts that he did not file additional summary judgment materials because they were unnecessary, as he relied on his prior filings.

7.   While Defendants had previously moved to strike portions of Martin's response to the motion for partial summary judgment, the trial court did not rule on that motion, and Defendants have relied on Martin's response in their own motions for full summary judgment.

8.   The trial court did not rule on Key's motion for partial summary judgment in which it alleged that it could be liable only for limited damages. However, we note that the extent of damage to Martin's air conditioning system is disputed.

9.   We note that Defendants also failed to designate undisputed evidence that the air conditioning wires were exposed to the outdoors before Defendants dug the trench. Rather, it appears from Key's statements that the time period during which the wires were exposed was “the approximately ten (10) month time interval spanning Key's commencement of services and [Martin's] discovery of the condition and damages.” Martin's Supp. App. v. 7 at 13. Thus, there is a genuine issue of material fact regarding whether Defendants were the ones who exposed the air conditioning wires to potential harm from weather, animals, passers-by, and would-be vandals.

Bailey, Judge.

Vaidik, J., and Scheele, J., concur.