Delage Landen Fin. Servs., Inc. v. Cmty. Mental Health Ctr., Inc., 15A05–1107–CC–366.

• Decision Date: 29 March 2012
• Docket Number: No. 15A05–1107–CC–366.,15A05–1107–CC–366.
• Parties: DeLAGE LANDEN FINANCIAL SERVICES, INC., Appellant–Plaintiff, v. COMMUNITY MENTAL HEALTH CENTER, INC., Appellee–Defendant.
• Court: Indiana Appellate Court

965 N.E.2d 693

DeLAGE LANDEN FINANCIAL SERVICES, INC., Appellant–Plaintiff,

v.COMMUNITY MENTAL HEALTH CENTER, INC., Appellee–Defendant.

No. 15A05–1107–CC–366.

Court of Appeals of Indiana.

March 29, 2012.

Peter A. Velde, Kightlinger & Gray, LLP, Indianapolis, IN, Crystal G. Rowe, Kightlinger & Gray LLP, New Albany, IN, Attorneys for Appellant.

Jeffrey E. Stratman, Aurora, IN, Attorney for Appellee.

ROBB, Chief Judge.

Case Summary and Issues

DeLage Landen Financial Services ("DLL") filed a complaint for breach of contract against Community Mental Health Center, Inc. ("CMHC"), and subsequently sought summary judgment in its favor. DLL appeals the trial court's denial of its motions to strike CMHC's response to DLL's motion for summary judgment and the trial court's denial of its motion for summary judgment. Concluding the trial court abused its discretion in considering CMHC's late-filed response on summary judgment and that, considering only the properly designated evidence, summary judgment should be granted to DLL, we reverse and remand.

Facts and Procedural History

CMHC leased seven copy machines and related accessories pursuant to a written lease agreement with Pitney Bowes Credit Corporation ("Pitney Bowes"). On December 6, 2010, DLL, as assignee-lessor, filed a complaint against CMHC seeking contract damages and other relief. CMHC filed an answer and asserted certain affirmative defenses.

On March 15, 2011, DLL filed a motion for summary judgment and designation of evidence. Pursuant to Trial Rule 56(C), CMHC had thirty days—or until April 18, 2011 including the three-day extension for service by mail¹ —to file a response. On April 15, 2011, the trial court set DLL's motion for a hearing on May 27, 2011. On May 27, 2011, CMHC filed a motion to continue the hearing, alleging counsel had a family emergency. That motion was granted. Also on May 27, 2011, CMHC filed a Motion for Enlargement of Time to File Response to Motion for Summary Judgment, simultaneously filing the Response. In the Motion for Enlargement of Time, CMHC's counsel relied on Trial Rule 6(B)(2), allowing a trial court to permit an act to be done upon motion made after the expiration of the time period for doing so if the failure to act was the result of excusable neglect. CMHC's counsel stated that he had an inexperienced scheduling secretary who did not properly calendar the due date for the Response, and that he did not notice the failure to file a response until he reviewed his calendar for the week of May 27, 2011, and discovered the summary judgment hearing. DLL objected to the enlargement of time, citing the Indiana Supreme Court case of HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98–99 (Ind.2008), in support of the proposition that because CMHC failed to respond to the summary judgment motion in any way within thirty days of its filing the trial court could not consider any filings made thereafter. On June 3, 2011, the trial court denied the Motion for Enlargement of Time.

Following the trial court's order denying CMHC an enlargement of time to respond to the motion for summary judgment, DLL filed a motion to strike CMHC's response to summary judgment as untimely and CMHC requested Trial Rule 60(B) relief from the trial court's June 3, 2011, order. On June 24, 2011, the trial court denied DLL's motion to strike, allowing CMHC's response to stand and therefore, effectively granting CMHC's requested Trial Rule 60(B) relief. DLL filed a motion to reconsider the trial court's June 24, 2011, order. The trial court vacated its June 24, 2011, order and set DLL's motion to reconsider for a hearing. Following the hearing, the trial court denied DLL's motion to strike CMHC's response to summary judgment, granted CMHC permission to file its belated response, and denied DLL's motion for summary judgment:

Plaintiff, [DLL], having filed its Motion for Summary Judgment and the Court, having considered said motion and being duly advised in the premises, hereby denies the same.

The Court further vacates the June 24, 2011 Order denying [DLL's] Strike Motion, however the court now reinstates said order after having held a full hearing on said issue on July 8, 2011. Further the Court grants [CMHC] permission to file the summary judgment response pleadings which were filed on or about June 6, 2011.

Appellant's Appendix at 7. DLL now appeals. Additional facts will be supplied as necessary.

Discussion and Decision

I. Motion for Relief from Judgment

DLL first contends the trial court erred in granting CMHC's Rule 60(B) motion for relief from the June 3, 2011, order denying an enlargement of time to file its summary judgment response and allowing CMHC to file a belated response to summary judgment.

A. Standard of Review

Indiana Trial Rule 60(B) provides:

On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect....

* * *

... A movant filing a motion for reason[ ](1) ... must allege a meritorious claim or defense.

The burden is on the movant for relief from judgment to demonstrate that the relief is both necessary and just. In re Paternity of M.W., 949 N.E.2d 839, 842 (Ind.Ct.App.2011). Trial Rule 60(B) "affords relief in extraordinary circumstances which are not the result of any fault or negligence on the part of the movant." Goldsmith v. Jones, 761 N.E.2d 471, 474 (Ind.Ct.App.2002).

Our review of a trial court's grant or denial of a motion for relief from judgment pursuant to Trial Rule 60(B) is limited to determining whether the trial court committed an abuse of discretion. Citimortgage, Inc. v. Barabas, 950 N.E.2d 12, 15 (Ind.Ct.App.2011). A trial court abuses its discretion when its ruling is clearly against the logic and effect of the facts and circumstances before the court. TacCo Falcon Point, Inc. v. Atlantic Ltd. P'ship XII, 937 N.E.2d 1212, 1218 (Ind.Ct.App.2010).

B. Relief from Judgment

The propriety of the trial court's grant of relief from judgment ultimately relates back to whether the trial court should consider CMHC's response to DLL's motion for summary judgment. Trial Rule 56 states, in pertinent part:

(C) The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits....

* * *

(F) Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

* * *

(I) For cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit.

In Seufert v. RWB Med. Income Props. I Ltd. P'ship, 649 N.E.2d 1070, 1073 (Ind.Ct.App.1995), this court held that a trial court has discretion to order a continuance pursuant to Trial Rule 56(F) or alter time limits pursuant to Trial Rule 56(I) only where the non-movant has responded or sought an extension of time in which to respond within thirty days of the motion for summary judgment being filed. In Desai v. Croy, 805 N.E.2d 844 (Ind.Ct.App.2004), trans. denied, this court noted that our cases had consistently followed the Seufert rule until Farm Credit Servs. v. Tucker, 792 N.E.2d 565 (Ind.Ct.App.2003), in which this court held the trial court had discretion under Trial Rule 56(I) to consider the non-movant's designated evidence even when the non-movant had failed to respond within thirty days. Id. at 848–49 (citing Farm Credit Serv., 792 N.E.2d at 569–70). Nonetheless, Desai followed Seufert and again held that "a trial court may exercise discretion and alter time limits under 56(I) only if the nonmoving party has responded or sought an extension within thirty days from the date the moving party filed for summary judgment." 805 N.E.2d at 850.

In HomEq, our supreme court considered whether the trial court erred in declining to consider the non-movants' joint affidavit in opposition to summary judgment, filed over one year after the motion for summary judgment. The non-movants argued on appeal that the trial court has discretion to consider late-filed responses and should have done so in this case. Our supreme court acknowledged the then-recent inconsistent authority, but characterized the Desai decision as providing a bright line rule precluding late filing. Id. at 98. The court also stated that "[a]ny residual uncertainty was resolved ... when we cited Desai with approval" in a 2005 case. Id. (citing Borsuk v. Town of St. John, 820 N.E.2d 118 (Ind.2005) ). In Borsuk, 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(I), 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.

820 N.E.2d at 124 n. 5. Pursuant to this authority, DLL argues the trial court had no discretion to grant relief and allow the consideration of CMHC's late-filed response.

CMHC contends that HomEq can be distinguished by its facts and procedural history. In HomEq, the plaintiff filed a motion for summary judgment on April 15, 2004. Although the defendants sought a series of continuances of the summary judgment hearing, at no time within thirty days after service of the motion for summary judgment did they request alteration of the time limits imposed by Trial Rule 56. A summary judgment hearing was ultimately held on May 9, 2005, on which date the defendants filed a joint affidavit in opposition to summary judgment. The trial court declined to consider the affidavit and...