Boyd v. Whtiv, Inc.

• Decision Date: 12 December 2013
• Docket Number: No. 49A05–1303–PL–107.,49A05–1303–PL–107.
• Parties: Anthony E. BOYD, Appellant–Plaintiff, v. WHTIV, INC. and Walter Tarr, IV, Appellees–Defendants.
• Court: Indiana Appellate Court

997 N.E.2d 1108

Anthony E. BOYD, Appellant–Plaintiff,

v.WHTIV, INC. and Walter Tarr, IV, Appellees–Defendants.

No. 49A05–1303–PL–107.

Court of Appeals of Indiana.

Nov. 5, 2013.

Rehearing Denied Dec. 12, 2013.

Hannah L. Thompson, Matthew Derringer, Ronald E. Weldy, ¹ Weldy & Associates Indianapolis, IN, Attorneys for Appellant.

Michael L. Einterz, Jr., Einterz & Einterz, Zionsville, IN, Attorney for Appellees.

OPINION

KIRSCH, Judge.

After the trial court denied Anthony E. Boyd's (“Boyd”) motion for an extension of time to respond to the summary judgment motion filed by defendants WHTIV, Inc. and Walter Tarr, IV (collectively “Employer”), and it thereafter granted Employer's summary judgment motion, Boyd filed a motion to correct error, which the trial court denied. He now appeals, raising two issues that we restate as:

I. Whether the trial court erred when it determined that Indiana Trial Rule 6(E), which extends by three days the deadline to respond following service by United States mail, did not apply to summary judgment proceedings and Boyd's motion for extension of time to respond to Employer's summary judgment motion therefore was not timely filed; and

II. Whether Boyd is entitled to appellate attorney fees relative to Employer's Motion for Involuntary Dismissal of Appeal.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

In September 2012, Boyd filed a complaint against Employer for actual and statutory damages pursuant to the Fair Labor Standards Act and the Minimum Wage Act, alleging that Employer failed to pay him overtime premiums during his employment. On November 7, 2012, Employer filed a motion for summary judgment, and it served Boyd with the motion by United States mail. Thirty-three days later, on December 10, 2012, Boyd filed a Motion to Extend Opposition to Defendants' Motion for Summary Judgment, in which he sought additional time to respond to the summary judgment motion in order to review and complete discovery concerning Employer's motion and Boyd's response thereto, as well as determine the appropriateness of filing his own cross-motion for summary judgment. Employer objected to this request for additional time to respond, asserting that because Boyd did not respond or request additional time within thirty days, i.e. by December 7, his request was not timely, and his motion must be denied. On December 14, the trial court denied Boyd's motion for extension of time, and it also granted Employer's motion for summary judgment.

Thereafter, Boyd filed a motion to correct error, asserting that his December 10 request for additional time to respond to the summary judgment motion was timely because Indiana Trial Rule 6(E) extended by three days the deadline to respond since the November 7 motion for summary judgment was served upon him by mail. The trial court denied Boyd's motion to correct error, stating: “Motion to correct error denied. Motion for extension of time was untimely.” Appellant's App. at 5. He now appeals.

DISCUSSION AND DECISION

Boyd appeals from the denial of his motion to correct error. Rulings on motions to correct error are typically reviewable under an abuse of discretion standard; however we review the matter de novo when the issue on appeal is purely a question of law. State v. Gonzalez–Vazquez, 984 N.E.2d 704, 706 (Ind.Ct.App.2013) (citing Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind.Ct.App.2009)), trans. denied. In this case, as in Gonzalez–Vazquez,

The motion to correct error ultimately relates back to whether the trial court should consider [Boyd's] response to be timely pursuant to Trial Rule 56 and Trial Rule 6(E). There is no dispute concerning the dates of service or any of the parties' motions. Accordingly, a legal issue is presented.

984 N.E.2d at 706.

I. Timeliness of Boyd's Request for Extension of Time

This appeal presents the question of whether Indiana Trial Rule 6(E) extends the date by which the non-movant must respond to a summary judgment motion or request an extension of time to respond. Employer's position is that any motion for extension of time to respond to a motion for summary judgment must comply with the thirty-day deadline provided in Indiana Trial Rule 56(F) or Trial Rule 56(1) and that the three-day extension of time provided by Trial Rule 6(E) does not apply. Upon review of the relevant statutes and recent case law, we disagree.

Initially, we begin with Indiana Trial Rule 56(C) and observe that it states, in pertinent part, “An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.” (Emphasis added.) By its terms, Trial Rule 56(C) recognizes that the response time is not thirty days from the date of the filing of the motion; rather, it is thirty days from the date of service on the recipient. Likewise, our trial rules specifically provide for additional time for service by mail. Trial Rule 6(E) states:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by United States mail, three [3] days shall be added to the prescribed period.

Indeed, a review of Indiana case law reveals that Trial Rule 6(E)'s three-day extension of time is permitted and calculated into the required response time for summary judgment motions. For instance, in City of Mishawaka v. Kvale, 810 N.E.2d 1129 (Ind.Ct.App.2004), we recognized,

[B]ecause the Estate served its motion for summary judgment via mail, City had an additional three days to respond. SeeT.R. 6(E). Because City's response and designation of evidence was filed after the thirty-three days had expired, the trial court did not abuse its discretion by striking City's response and designated materials.

Id. at 1134. Similarly, in Starks Mech., Inc. v. New Albany–Floyd Cnty. Consol. Sch. Corp., 854 N.E.2d 936 (Ind.Ct.App.2006), we recognized,

Indiana Trial Rule 56(C) provides that the nonmovant has thirty days after being served with a motion for summary judgment to serve a response and any opposing affidavits. Trial Rule 6(E) provides that when a motion is served by mail, an additional three days shall be added to the prescribed period.

Id. at 939.

Nevertheless, here, Employer asserts that the three-day extension granted by Trial Rule 6(E) does not apply to Trial Rule 56 motions for summary judgment because Trial Rule 56 exclusively controls the timing of summary judgment proceedings. In support of this position, Employer relies on this court's decision in DeLage Landen Financial Services, Inc. v. Community Mental Health Center, 965 N.E.2d 693 (Ind.Ct.App.2012), trans. denied. There, DeLage, a lessor of copy machines, moved for summary judgment on its complaint against lessee Community Mental Health Center (“CMHC”). DeLage's motion for summary judgment was filed on March 15, 2011. On May 27, 2011, CMHC, the nonmovant, moved for enlargement of time to respond pursuant to Indiana Trial Rule 6(B)(2), which allows a trial court to permit an act to be done after the expiration of the time period if the failure to act was the result of excusable neglect, namely to be an inexperienced employee who did not properly schedule the due date for the response.² The trial court in DeLage allowed CMHC's belated response and denied DeLage's motion for summary judgment, and DeLage appealed.

In its analysis, the DeLage court examined our Supreme Court's decision in HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98–99 (Ind.2008), where the court stated:

When a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response, requesting a continuance under Trial Rule 56(1), or filing an affidavit under Trial Rule 56(F), the trial court cannot consider summary judgment filings of that party subsequent to the 30–day period.

DeLage, 965 N.E.2d at 697. As the DeLage court noted, however, the non-movant in HomeEq never requested an enlargement of time under Indiana Trial Rules, whereas CMHC did request an enlargement under Trial Rule 6(B)(2). The DeLage court thus focused on the conflict, if any, between Trial Rule 56(I), which states that “for cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit” and the extension of time provision of Trial Rule 6(B)(2). The DeLage court ultimately determined that Trial Rule 6(B)(2) does not apply to summary judgment materials, and CMHC's belated response should not have been permitted. DeLage, 965 N.E.2d at 698.

One year later, this court in Gonzalez–Vazquez addressed the scope of the DeLage decision in a factual context strikingly similar to the one we face today. There, in postconviction proceedings, Vazquez filed a motion for summary judgment on July 17, 2012. The motion was served on the State by certified mail. On August 20, 2012, the State filed a request for an extension of time in which to file a response to the motion for summary judgment. The trial court granted the State's request, the State thereafter filed a response on August 24, and Vazquez's motion for summary judgment was denied. Vazquez filed a motion for reconsideration arguing that the State's August 20 request for enlargement of time and its subsequent response were both untimely. Like Employer in the present case, Vazquez, relying upon DeLage, argued that Trial Rule 56 exclusively controls timing of summary judgment filings. The post-conviction court agreed with Vazquez and concluded that the State had failed to request an enlargement of time within thirty days as provided by Trial Rule 56(I) and that no days could be added to the thirty-day period due to mail service; it struck the State's response and it granted Vazquez's motion for summary judgment.

The State filed a motion to correct error, contending that its motion for enlargement of time, which was filed...