Mitchell v. 10th & the Bypass, LLC

• Citation: 973 N.E.2d 606
• Decision Date: 28 August 2012
• Docket Number: No. 53A01–1112–PL–593.,53A01–1112–PL–593.
• Parties: James T. MITCHELL, Appellant, v. 10TH AND the BYPASS, LLC, and Elway, Inc., Appellees.
• Court: Indiana Appellate Court

973 N.E.2d 606

James T. MITCHELL, Appellant,

v.10TH AND the BYPASS, LLC, and Elway, Inc., Appellees.

No. 53A01–1112–PL–593.

Court of Appeals of Indiana.

Aug. 28, 2012.

Michael L. Carmin, Gregory A. Bullman, Andrews Harrell Mann Carmin & Parker, P.C., Bloomington, IN, Attorneys for Appellant.

Donn H. Wray, Nicholas K. Gahl, Stewart & Irwin, P.C., Indianapolis, IN, Stephen Schrumpf, Brown Deprez & Johnson, P.A., Shelbyville, IN, Attorneys for Appellees.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

James T. Mitchell appeals from the trial court's order that vacated partial summary judgment for Mitchell and against 10th and The Bypass, LLC (“the LLC”). The LLC and Elway, Inc. (“Elway”) filed a joint motion to vacate the partial summary judgment and tendered new evidence against Mitchell, and the trial court granted the motion and reinstated Mitchell as a defendant. Mitchell contends that, because the LLC and Elway did not move to alter the thirty-day time limit for the designation of evidence under Trial Rule 56(C) and partial summary judgment was entered, it was too late for the LLC and Elway to designate additional evidence. We conclude that the partial summary judgment was interlocutory under Trial Rule 56(C) and subject to revision under Trial Rule 54(B). Thus, we hold that the trial court did not abuse its discretion when it vacated its previously entered partial summary judgment.

We affirm.

FACTS AND PROCEDURAL HISTORY

On December 30, 2008, the LLC filed a complaint against Mitchell, Elway, J.T. Mitchell, Inc., and Sevan Corporation (collectively “the Defendants”),¹ alleging that the Defendants had caused environmental damage while operating dry cleaning businesses at a site known as 10th and The Bypass in Bloomington owned by the LLC. In relevant part, the complaint alleged that Mitchell was individually liable under the responsible corporate officer doctrine.

On June 30, 2009, Mitchell filed a motion for partial summary judgment, alleging that there was no genuine issue of material fact with respect to his individual liability. On September 3, the LLC filed its cross-motion for partial summary judgment on that question. Mitchell and the LLC each filed replies and, on September 30, the trial court held a hearing on the competing motions. On January 11, 2010, the trial court entered an order granting Mitchell's motion for partial summary judgment and denying the LLC's cross-motion (the “January Order”). In the January Order the trial court did not direct the entry of a final judgment for Mitchell as provided in Indiana Trial Rule 54(B).

Seventeen months later, on June 3, 2011, the LLC and Elway (hereinafter collectively referred to as “the LLC”) filed a joint motion to vacate the partial summary judgment granted to Mitchell in the January Order (“the Motion to Vacate”). With the Motion to Vacate, the LLC tendered a written statement taken January 26, 2011, from Susan Johnson, a former employee of Mitchell's corporation, and the transcript of Johnson's deposition, taken March 22, 2011. The trial court summarized Johnson's statement and deposition as follows:

Ms. Johnson was an employee of J.T. Mitchell, Inc. during the timeframe in which J.T. Mitchell, Inc. operated a dry cleaning facility at the Site; on one occasion, she received a call from James Mitchell stating that he had accidentally left a valve open on the back of a dry cleaning machine that was attached to a 50 gallon perc drum, resulting in a perc spill. Ms. Johnson came to the dry cleaners, where Defendant Mitchell instructed her to mop up the spill and to put a fan on the spill spot so that it would evaporate. Ms. Johnson states that Defendant Mitchell never used an “environmental company” to assist with the spill, and that the manner of clean-up did not comport with environmental regulations. She further states that she sustained certain health problems as a result of her clean-up of the perc spill, and that Defendant Mitchell personally paid for her medical expenses. She also discusses other spills that occurred at other J.T. Mitchell, Inc. locations.

Appellant's App. at 15. Mitchell responded that the Motion to Vacate should be denied because it sought to designate evidence on summary judgment well after the thirty-day time limit contained in Indiana Trial Rule 56(C). Mitchell also argued that the Motion to Vacate should be denied under Indiana Trial Rule 60(B). The trial court concluded that Trial Rule 60(B) applies only to final judgments and, relying on Trial Rule 54(B), vacated the January Order and reinstated Mitchell as a defendant (“the Order to Vacate”).

Thereafter, Mitchell requested the trial court to certify the Order to Vacate for interlocutory appeal, which the trial court did. We accepted jurisdiction in February 2012. The trial court entered a stay of the proceedings pending appeal.

DISCUSSION AND DECISION

This appeal requires that we consider the relationship between Trial Rule 54(B) and Trial Rule 56(C) when new evidence is submitted to the trial court following entry of partial summary judgment. Our standard of review from Trial Rule 54(B) decisions is an abuse of discretion, see Legg v. O'Connor, 557 N.E.2d 675, 676 (Ind.Ct.App.1990), but our standard of review in appeals from a judgment under Trial Rule 56(C) is de novo, see Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269–70 (Ind.2009). Accordingly, we must determine which rule controls the outcome in this appeal.²

Mitchell contends that the designation of new evidence together with the Motion to Vacate, seventeen months after the trial court entered partial summary judgment in Mitchell's favor, violates Trial Rule 56(C). That Rule provides as follows:

The motion [for summary judgment] 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. The court may conduct a hearing on the motion. However, upon motion of any party made no later than ten (10) days after the response was filed or was due, the court shall conduct a hearing on the motion which shall be held not less than ten (10) days after the time for filing the response. At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto. The judgment sought shall be rendered forthwith 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 a judgment as a matter of law. A summary judgment may be rendered upon less than all the issues or claims, including without limitation the issue of liability or damages alone although there is a genuine issue as to damages or liability as the case may be. A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties. The court shall designate the issues or claims upon which it finds no genuine issue as to any material facts. Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.

Ind. Trial Rule 56(C) (emphases added).

According to Mitchell, the thirty-day time limit for a party responding to a motion for summary judgment to designate its evidence is “a hard and fast rule that trial courts must enforce.” Appellant's Br. at 7. In support of that contention, Mitchell relies on our supreme court's decision in HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind.2008). In HomEq, our supreme court affirmed the trial court's refusal to consider designated evidence more than thirty days after the entry of final judgment. 883 N.E.2d at 98–99. Indeed, it is well settled that a party must request an extension of time to designate evidence before the thirty days allowed by Trial Rule 56(C) has expired. See Desai v. Croy, 805 N.E.2d 844, 849 (Ind.Ct.App.2004), trans. denied; see also City of Elkhart v. SFS, LLC, 968 N.E.2d 812, 816 (Ind.Ct.App.2012) (“a trial court may not consider the untimely designation of evidence”); Borsuk v. Town of St. John, 820 N.E.2d 118, 123 n. 5 (Ind.2005) (approving of Desai ). Mitchell contends, in effect, that the LLC's Motion to Vacate is an impermissible attempt to circumvent the Trial Rule 56(C) requirement that an adverse party respond to a motion for summary judgment or request an extension of time within which to file a response within the thirty days allowed under the Rule. See City of Elkhart, 968 N.E.2d at 816.

But the time limitation on the designation of evidence under Trial Rule 56(C) does not end our inquiry. Rule 56(C) also provides that a summary judgment with respect to fewer than all the parties “shall be interlocutory unless the court in writing expressly determines there is no just reason for delay and ... directs entry of judgment....” T.R. 56(C). Here the trial court entered partial summary judgment only for Mitchell and for no other party. The trial court did not direct the entry of final judgment for Mitchell. And HomEq, which enforced the thirty-day time limit for filing an affidavit in opposition to summary judgment, was an appeal from a final judgment and is, therefore, inapposite.³

Rather, as the trial court correctly determined, the Motion to Vacate is controlled by Tr...