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Money Store Investment Corp. v. Summers2/9/2005
ly," and therefore, the trial court "erred in finding Summers personally liable for the debts of his corporation." Money Store's Br. at 20. Money Store asserts on appeal that the evidence before the trial court - and specifically the lack of "evidence . . . that Summers fled the country" or "absconded with any corporate funds" - did not warrant "piercing the corporate veil" and "granting Phillips a first mortgage claim for the $5,181 in corporate overdrafts, plus interest." Id. at 21, 22.
However, in response to Phillips' motion for summary judgment, Money Store did not make this argument. Rather, Money Store argued to the trial court that Summers could not be held liable for the overdraft indebtedness based on a provision of the U.C.C. In its motion to correct error, Money Store asserted for the first time that the trial court's action of piercing the corporate veil to hold Summers liable as to the overdrafts was "not supported by sufficient evidence." (App. 386). But the assertion in that regard did not cite any legal authority or develop an argument.
As discussed above, bank officer Lust of National City averred that he was "the officer responsible for the credit administration of the loan and other accounts of Mangy Moose Enterprises, Inc. and Neal Summers, its President," and that on the date National City assigned mortgages to Phillips, "Mangy Moose Enterprises, Inc. and Neal Summers owed to National City" $5,181.25 in overdrafts and fees and $2,000 in collection charges. (App. 207). We earlier found that the officer's personal knowledge established a foundation for his admissible testimony that Summers was liable to National City for the overdraft indebtedness. This is admissible evidence that Summers was liable for the overdraft debt and could be considered by the trial court.
The grant of summary judgment may be affirmed "on any legal basis supported by the designated evidence." Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1264 (Ind. Ct. App. 2002), trans. denied. In fact, we have stated that if the trial court's grant of summary judgment can be sustained on any theory or basis in the record, "we must affirm." Ebersol v. Mishler, 775 N.E.2d 383, 378 (Ind. Ct. App. 2002). In essence, the affidavit of the bank officer sufficed to establish Summers' liability for the overdraft debt. Therefore, the trial court did not err in granting Phillips a first mortgage claim for that debt.
5. Attorney's Fees
Finally, Money Store argues that the trial court erred in awarding attorney's fees to Phillips, citing Bank of New York v. Nally, 809 N.E.2d 405 (Ind. Ct. App. 2004), for the proposition that "a mortgage holder may not recover an award of its attorney's fees incurred in litigating with another mortgage holder over the priority of its mortgage." Money Store's Br. at 22. We first note that Nally has been vacated, as our supreme court granted transfer on May 21, 2004. 812 N.E.2d 806. See Ind. Appellate Rule 58(A). Further, in Nally, we noted the absence of any language in the mortgage documents that expressly authorized entitlement to attorney's fees "for all litigation regarding their note and mortgage." 809 N.E.2d at 408 (emphasis in original).
Here, at least one of Phillips' assigned mortgages contains such express authorization. The mortgage executed by Summers on October 2, 1992, which contained a dragnet clause, states as follows:
That in case the Mortgagee shall become a party to any suit or legal proceedings, relating to the above described property or any part thereof, all costs, expenses and attorney's fees necessarily incurred therein by the Mortgagee to protect the lien of this mortgage or any of the Mortgagee's
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