Homeq Servicing Corp. v. Baker

Decision Date26 March 2008
Docket NumberNo. 25S03-0710-CV-00459.,25S03-0710-CV-00459.
Citation883 N.E.2d 95
PartiesHOMEQ SERVICING CORPORATION, f/k/a TMS Mortgage, Inc. d/b/a The Money Store, Appellant (Plaintiff below), v. Bradley J. BAKER and Constance D. Baker, Appellees (Defendants below).
CourtIndiana Supreme Court

DICKSON, Justice.

In this appeal, we address two issues. First, we hold that cross-error is available to appeal issues presented in a motion to correct error that is belatedly granted contrary to the "deemed denied" provisions of Ind. Trial Rule 53.3(A). Second, we hold that a trial court may not consider untimely filed materials opposing summary judgment.

In this mortgage foreclosure action the trial court initially granted summary judgment in favor of the plaintiff lender and against the defendant property owners. The defendants filed a motion to correct error, which was not ruled on within thirty days after the hearing, and was therefore subject to the "deemed denied" provisions of T.R. 53.3(A). Thirty-eight days after the hearing, however, the trial court entered an order purporting to grant the motion and vacate summary judgment. The plaintiff filed a notice of appeal of that order within thirty days, and the defendants cross-appealed, asserting error in the denial of their motion to correct error. The Court of Appeals reversed the trial court's grant of the defendants' motion to correct error, holding that the motion was automatically denied thirty days after the hearing pursuant to Rule 53.3(A), and that the defendants' appeal was untimely because it was initiated more than thirty days after the "deemed denied" date. HomEq Servicing Corporation v. Baker, 863 N.E.2d 1262 (Ind.Ct.App.2007).

The defendants sought transfer, correctly asserting that the Court of Appeals did not address their cross-appeal claim that they were entitled to appeal of the merits of their motion to correct error. We granted transfer and now hold that the exception recognized in footnote 4 of Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285, 289 (Ind.2000), applies to permit the defendants to raise that issue on appeal.

The defendants' claim on the merits is that the trial court should have considered an affidavit filed by the defendants after the thirty days provided for response to a notice for summary judgment, and without a timely motion for extension of that time. We hold that the trial court correctly disregarded the defendants' untimely affidavit opposing summary judgment, and therefore did not err in granting summary judgment to the plaintiff.

1. Challenging a Deemed Denied Motion to Correct Error by Cross-Appeal

The relevant facts are undisputed. On June 24, 2005, the defendants filed a motion to correct error challenging the trial court's grant of the plaintiffs motion for summary judgment. On June 29, 2005, the trial court scheduled the motion to correct error for a hearing on August 1, 2005, but a series of continuances resulted in the hearing not taking place until June 19, 2006. Thirty-eight days then elapsed after this hearing, and on July 27, 2006, the trial court granted the motion to correct error and vacated its prior order granting summary judgment. The plaintiff then commenced this appeal on August 24, 2006.

Trial Rule 53.3(A) provides:

In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct error is deemed denied.

T.R. 53.3(A). When trial courts purport to grant a motion to correct error belatedly, that is, after the expiration of the thirty-day "deemed denied" deadline in the rule, we have recognized that issues arise regarding the efficient judicial administration and fairness to litigants, including potential "unnecessary, impractical, harsh, and unfair consequences." Cavinder Elevators, 726 N.E.2d at 289.

To address these problems, this Court in Cavinder Elevators adopted a two-part rule. First, if the opponent of a motion to correct error fails to timely appeal a belated grant of the motion, such opponent cannot claim on appeal that the trial court violated the time deadlines in T.R. 53.3(A). Second, if the proponent of the motion to correct error fails to timely appeal when it is deemed denied under T.R. 53.3(A), such proponent cannot by cross-appeal later raise the issues presented by its motion to correct error. Cavinder Elevators, 726 N.E.2d at 289. This second aspect of the rule was subjected to a limited exception, however, in circumstances when a trial court belatedly grants a motion to correct error before the expiration of the time within which the proponent of the motion may appeal the merits motion to correct error that is deemed denied under T.R. 53.3(A). In footnote 4, we explained:

If the trial court belatedly grants a motion to correct error before the party filing the motion to correct error initiates an appeal but during the time period within which such party is entitled to appeal from the deemed denial, the party may assert as cross-error the issues presented in its "deemed denied" motion to correct error.

Cavinder Elevators, 726 N.E.2d at 289 n. 4. This exception recognizes the probable correctness of a trial court's decision modifying its own previous ruling and permits the proponent of the belatedly-granted motion to delay initiating a possibly unnecessary appeal until ascertaining whether the opponent of the motion chooses to acquiesce in the belated ruling. If the opponent appeals, however, seeking to invoke the "deemed denied" provision of T.R. 53.3(A), the proponent may then by cross-appeal seek appellate review of the merits of its motion to correct error.

In the present case, the defendants fell within the limited exception provided by footnote 4. The trial court had timely scheduled a hearing for the motion to correct error, but it failed to rule within thirty days after the hearing. The motion was thus deemed denied pursuant to T.R. 53.3(A), and the defendants had thirty days to initiate an appeal of the deemed denial. Cavinder Elevators, 726 N.E.2d at 289. Just eight days into that period, however, the trial court belatedly granted the motion to correct error. The footnote 4 exception thus permitted the defendants to initially forego commencing an appeal to see if the plaintiff would agree with the merits of the trial court's belated ruling and choose not to assert its invalidity on grounds of tardiness. When, to the contrary, the plaintiff brought this appeal, the defendants were entitled to proceed by cross-appeal to obtain appellate review of the merits of the issues raised in the motion to correct error.

2. Untimely Filed Affidavit Opposing Summary Judgment

In their cross-appeal, the defendants contend that the trial court erred in granting the plaintiffs motion for summary judgment, arguing that their belatedly-filed affidavit in opposition to summary judgment could have and should have been considered, and that it establishes significant disputed issues of fact to preclude summary judgment.

The plaintiff filed its motion for summary judgment on April 15, 2004, and the trial court scheduled it for hearing on September 13, 2004. The defendants sought, and the trial court granted, a series of four continuances, with the hearing ultimately occurring on May 9, 2005. At no time within thirty days after service of the plaintiffs motion for summary judgment did the defendants request any alteration of the time limits imposed by Indiana Trial Rule 56. Nor did the defendants at any time before the hearing seek a continuance to permit affidavits to be obtained...

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