Markley Enterprises, Inc. v. Grover, 20A03-9812-CV-498.

• Decision Date: 23 September 1999
• Docket Number: No. 20A03-9812-CV-498.,20A03-9812-CV-498.
• Citation: 716 N.E.2d 559
• Parties: MARKLEY ENTERPRISES, INC., Appellant-Defendant, v. George GROVER and Charlene Grover, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

716 N.E.2d 559

MARKLEY ENTERPRISES, INC., Appellant-Defendant, v. George GROVER and Charlene Grover, Appellees-Plaintiffs.

No. 20A03-9812-CV-498.

Court of Appeals of Indiana.

September 23, 1999.

Roger W. Benko, John D. LaDue, Jody H. Odell, Barnes & Thornburg, South Bend, Indiana, Attorneys for Appellant.

Patrick F. O'Leary, Goshen, Indiana, Attorney for Appellees.

OPINION

NAJAM, Judge

STATEMENT OF CASE

Markley Enterprises, Inc. (the "Company") brings this interlocutory appeal from the trial court's grant of George Grover's and Charlene Grover's (collectively "Grover") motion for extension of time to respond to the Company's motion for summary judgment. The Company also appeals the denial, in part, of its motion for summary judgment on Grover's claim for retaliatory discharge.

We affirm in part, reverse in part and remand.

ISSUES

The Company presents two issues for review which we restate as:

1. Whether the trial court erred when it granted Grover's motion for extension of time.

2. Whether the trial court erred when it denied, in part, the Company's motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to Grover indicate that Grover was employed by the Company from July 7, 1987, until his termination on June 9, 1994. Harold Markley, the president of the Company, hired Grover as a saw operator in the Company wood shop. Also while employed by the Company, Grover worked as a truck driver and in the shipping department.

In June of 1993, Grover informed Markley that he had injured his shoulder while working. Because the injury had actually occurred several months earlier, and Grover had waited so long to inform Markley, the Company and Grover decided not to submit the claim to the Company's worker compensation carrier but instead to allow Grover to continue to be treated by his family doctor. In October of 1993, Grover again approached Markley about his shoulder and the need to file a worker's compensation claim. Markley agreed to send Grover to the Company doctor for evaluation. Upon request, the Company also released Grover's medical records to the Company's worker's compensation carrier. After investigating Grover's records, the worker's compensation carrier reported to Markley that the facts did not support Grover's claim that the shoulder injury occurred at work. Because Markley believed that Grover had attempted to falsify the claim for worker's compensation benefits, Markley disciplined Grover for allegedly attempting to file a false claim in violation of Company rules.¹ As a result of the violation, Grover was given a ten-day suspension from work which was ultimately reduced to three days. Grover was advised by a Company memo that he would be terminated immediately for any repeat violations.

On December 27, 1993, Grover filed an Application for Adjustment of Claim with the Indiana Worker's Compensation Board alleging that he had injured his shoulder on February 26, 1993, while working at the Company. Approximately six months later, on June 24, 1994, the Company terminated Grover's employment allegedly because Grover had, for the second time during his employment, made derogatory comments about the Company to a coworker in violation of Company rules.²

Grover filed his complaint for damages against the Company alleging that: (1) the Company had wrongfully terminated Grover's employment in retaliation for his pursuit of a claim for worker's compensation benefits; and (2) a contract of employment existed between the parties which was breached as a result of the termination. Subsequently, on June 16, 1998, the Company filed a motion for summary judgment. On June 24, 1998, the trial court issued a Chronological Case Summary ("CCS") notice and set the motion for hearing on August 20, 1998. The Clerk deposited the CCS notice in the courthouse mailbox maintained by Grover's counsel.³ However, Grover's counsel neglected to check his courthouse mailbox. Additionally, although the Company had sent Grover's counsel a copy of the summary judgment motion, the document was placed in the case file by staff and not brought to counsel's attention. Almost sixty days after the motion for summary judgment had been filed, counsel checked his courthouse mailbox and realized that the Company had moved for summary judgment. Grover's counsel filed a motion for extension of time to respond on August 19, 1998. The trial court granted the motion for extension of time that same day. Grover filed his responsive designation of evidence in opposition to summary judgment on September 2, 1998. Thereafter, the trial court granted the Company's motion for summary judgment as to the breach of contract claim but denied its motion as to the retaliatory discharge claim. This interlocutory appeal ensued.

DISCUSSION AND DECISION

Issue One: Extension of Time

The Company first contends that the trial court abused its discretion when it granted Grover's motion for extension of time to respond to the Company's summary judgment motion. We agree with the Company.

Indiana Trial Rule 56(C) provides that "[a]n adverse party shall have thirty (30) days after service of [a motion for summary judgment] to serve a response and any opposing affidavits." The rule, however, gives trial courts discretion to order a continuance or to alter any time limits for the party opposing summary judgment to respond. The pertinent parts of Trial Rule 56 state:

(F) When affidavits are unavailable. 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) Alteration of Time. The Court, for cause found, may alter any time limit set forth in this rule.

In Seufert v. RWB Medical Income Properties I Ltd. Partnership, 649 N.E.2d 1070 (Ind.Ct.App.1995), we considered Trial Rule 56 in its entirety, specifically interpreting 56(F) and (I). Despite the non-moving party's argument on appeal that it was within the trial court's discretion to order a continuance or alter any time limits found within Trial Rule 56, we concluded that the remedies provided by Trial Rule 56(F) and (I) were not available to a non-moving party who has failed to oppose or respond to the motion within the thirty-day limit established by Trial Rule 56(C). Seufert, 649 N.E.2d at 1073. Specifically, we held:

T.R. 56 requires an adverse party to respond within 30 days by either (1) filing affidavits showing issues of material fact, (2) filing his own affidavit indicating why the facts necessary to justify his opposition are unavailable, or (3) requesting an extension of time in which to file his response.

Id. Because Seufert had failed to respond in any way within the 30-day time frame, the trial court correctly considered only the evidence designated by the moving party in support of summary judgment. Id.; accord Southwood v. Carlson, 704 N.E.2d 163, 169 (Ind.Ct.App.1999)

.

Similarly, here, Grover did not respond to the Company's motion for summary judgment within thirty days. Nor did he request an extension of time or otherwise explain the cause of his delay within thirty days. Contrary to Grover's argument, the trial court did not have unlimited discretion to expand the time within which he could file his response to summary judgment. Thus, the trial court erred when it granted Grover's motion for extension of time to respond to the Company's motion for summary judgment.⁴

Issue Two: Denial of Summary Judgment

The Company next contends the trial court erred when it denied, in part, the Company's motion for summary judgment on Grover's retaliatory discharge claim. Specifically, the Company argues that the evidence properly designated to the trial court establishes its entitlement to judgment as a matter of law. On this point, we disagree with the Company.

On appeal of a motion for summary judgment, we apply the same standard as the trial court and construe all facts and reasonable inferences drawn from those facts in favor of the non-moving party. Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.1998). Summary judgment is appropriate only if the "designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C). The party moving for summary judgment bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Grubb v. Childers, 705 N.E.2d 180, 182 (Ind.Ct.App.1998). Only if the movant sustains this burden does the burden then shift to the opponent to set forth specific facts showing that there is a genuine issue of material fact. Shell Oil Co.,705 N.E.2d at 984 (citing Ind. Trial Rule 56(E)).

If the non-movant fails to properly respond or designate evidence within the thirty-day period set forth in Trial Rule 56, and the moving party has shown that he is entitled to summary judgment, the trial court is obligated to enter summary judgment against the non-moving party. Morton v. Moss, 694 N.E.2d 1148, 1151-52 (Ind.Ct.App.1998). However, even if the facts are undisputed, summary judgment is inappropriate where the evidence reveals a good faith dispute as to the inferences to be drawn from those facts. Estate of Pflanz v. Davis, 678 N.E.2d 1148, 1150 (Ind.Ct.App.1997). Although this court is bound to consider only those matters which were designated to the trial court, we liberally construe that designated evidentiary matter in the light most favorable to the non-moving party. Id. The party that lost in the trial court has the burden of persuading this court that the trial court erred. Id.

Having concluded that ...