Spudich v. Northern Indiana Public Service Co., 45A05-0007-CV-298.

• Decision Date: 04 April 2001
• Docket Number: No. 45A05-0007-CV-298.,45A05-0007-CV-298.
• Citation: 745 N.E.2d 281
• Parties: Ronald SPUDICH, Appellant-Plaintiff, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee-Defendant.
• Court: Indiana Appellate Court

745 N.E.2d 281

Ronald SPUDICH, Appellant-Plaintiff, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee-Defendant.

No. 45A05-0007-CV-298.

Court of Appeals of Indiana.

April 4, 2001.

Rehearing Denied June 14, 2001.

Saul I. Ruman, David W. Holub, David M. Hamacher, Ruman, Clements, Tobin & Holub, P.C., Hammond, IN, Attorneys for Appellant.

David C. Jensen, Paul A. Rake, Alyssa Stamatakos, Eichhorn & Eichhorn, Hammond, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Ronald Spudich appeals from the trial court's grant of summary judgment in favor of Northern Indiana Public Service Company ("NIPSCO") on his complaint for damages arising out of an incident in which Spudich, who was stringing Christmas lights on evergreen trees at East Chicago City Hall, suffered an electrical injury from adjacent power lines owned by NIPSCO. We affirm.

Issues

Spudich raises three issues for our review, which we restate as:

1. Whether Lake County Rule of Civil Procedure 4 ("Local Rule"), which authorizes a reply brief to a motion for summary judgment, is in conflict with Trial Rule 56 and should be declared void, such that NIPSCO's reply brief should not have been allowed in the first instance;

2. If Local Rule 4 is not in conflict with Trial Rule 56, whether the trial court properly allowed NIPSCO to depose a witness unknown to it at the time it filed its motion for summary judgment and designate evidence from that deposition in its reply brief; and

3. Whether the trial court properly granted summary judgment in favor of NIPSCO.

Facts and Procedural History¹

Spudich suffered an electrical injury on December 16, 1996, while stringing Christmas lights on trees in front of the East Chicago Administrative Building.² The trees, owned by East Chicago, were growing on NIPSCO's line easement. NIPSCO owns power lines suspended over the trees, approximately thirty-eight feet above the ground.

Spudich was stringing the lights as part of his employment with J.G.M. Enterprises. Both Spudich and his employer were aware of the presence of NIPSCO's energized power lines over the trees in which Spudich was working, and were also aware of the danger associated therewith. However, J.G.M. did not request assistance from NIPSCO nor did it ask that NIPSCO de-energize the power lines during the work. Spudich used an aerial bucket truck to elevate himself to the top of the trees to do his work. While standing in the bucket on December 16, 1996, Spudich suffered an electrical injury.³

Spudich filed his first amended complaint for damages against NIPSCO and the City of East Chicago on April 14, 1997. NIPSCO answered, and discovery was conducted. Among other discovery, NIPSCO requested, via written interrogatory, that Spudich identify any and all expert witnesses he intended to call at trial and the substance of the witnesses' testimony. On June 25, 1999, NIPSCO filed a motion for summary judgment, designating certain evidence in support thereof, including the affidavits of Larry Russell and Thomas Hawke, both NIPSCO employees, and relevant portions of the depositions of Spudich and Joel Markovich, J.G.M.'s owner and Spudich's supervisor. On July 23, 1999, Spudich filed supplemental answers to the interrogatories described above, identifying Donald Scheer as an expert witness for the first time. Thereafter, Spudich filed his response to NIPSCO's motion for summary judgment, designating, inter alia, the affidavit of Scheer.

On September 8, 1999, NIPSCO filed a motion for extension of time to file a reply to the summary judgment, which the trial court granted that same day. Spudich filed a motion to set aside the order granting additional time. A hearing was held on October 14, 1999, on which date Spudich also filed a designation of additional evidence in opposition to NIPSCO's motion for summary judgment. The trial court ordered NIPSCO to file any reply by November 22, 1999, specifically permitting NIPSCO to depose Scheer. Scheer was in fact deposed, and NIPSCO subsequently filed a timely reply, which referenced Scheer's deposition testimony. Spudich moved to strike NIPSCO's reply.

On December 16, 1999, the trial court held a hearing on the pending motions: NIPSCO's motion for summary judgment and Spudich's motion to strike NIPSCO's reply. The trial court subsequently entered an order denying Spudich's motion to strike and granting NIPSCO's motion for summary judgment. After his motion to correct errors was denied, Spudich initiated this appeal.

Discussion and Decision

I. Conflict Between Local Rule 4 and Trial Rule 56

Spudich contends that Lake County Local Rule 4 is inconsistent with Trial Rule 56 and should be declared void. Local Rule 4 provides that:

All motions filed pursuant to Trial Rules 12 and 56 shall be accompanied by a separate supporting brief. An adverse party shall have thirty (30) days after service of the initial brief in which to serve and file an answer brief, and the moving party shall have ten (10) days after service of the answer brief in which to serve and file a reply brief.

Lake County L.R. 4(A). Trial Rule 56 provides, in pertinent part, that:

(B) A party against whom a claim ... is asserted ... may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof....

(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. 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....

Ind. Trial Rule 56(B) and (C). Spudich contends that because Trial Rule 56 does not specifically provide for the filing of reply briefs on summary judgment, Local Rule 4 is improper and should be declared void and of no effect. Because Trial Rule 56 is silent on the subject of reply briefs, NIPSCO responds that the two rules cannot be inconsistent.

The Indiana Trial Rules specifically authorize the making and amending of local rules of court:

Each local court may from time to time make and amend rules governing its practice not inconsistent with these rules. In all cases not provided for by rule the local court may regulate its practice in any manner not inconsistent with these rules....

T.R. 81. However, the rules of procedure promulgated by our supreme court are binding on all Indiana courts, and no court "can circumvent the rules and thereby avoid their application" by promulgating an inconsistent local rule. Armstrong v. Lake, 447 N.E.2d 1153, 1154 (Ind.Ct.App. 1983) (quoting In re Estate of Moore, 155 Ind.App. 92, 291 N.E.2d 566, 568 (1973)). A local rule which is inconsistent with the Trial Rules is deemed to be without force and effect. Id.

In State v. Bridenhager, 257 Ind. 699, 279 N.E.2d 794 (1972), our supreme court declared the test for determining when a procedural rule enacted by statute is inconsistent with the trial rules:

To be "in conflict" with our rules ..., it is not necessary that the statutory rules be in direct opposition to our rule, so that but one could stand per se. It is only required that they be incompatible to the extent that both could not apply in a given situation.

Id. at 796. In Armstrong, this court held that the same test would apply to a local rule alleged to be inconsistent with the trial rules. 447 N.E.2d at 1154. Thus, in Armstrong, we held that a local rule which provided that "[a]ll [civil] cases ... shall be tried by a six (6) person jury" was in conflict with Trial Rule 48, which provided at that time that "[t]he parties may stipulate that the jury shall consist of any number less than twelve."⁴Id. The local rule was in conflict with the Trial Rule because "a rule which permits stipulations of any number less than twelve makes little or no sense unless one assumes that, in the absence of a stipulation, the jury would consist of twelve." Id. See also Lies v. Ortho Pharmaceutical Corp., 259 Ind. 192, 286 N.E.2d 170, 173 (1972) (holding that a local rule requiring counsel to give a written "reminder" to the trial judge five days prior to the expiration of his time for ruling before moving to withdraw the case from that trial judge pursuant to Trial Rule 53.1 is in conflict with Trial Rule 53.1 because the local rule "purports to attach a condition to its application."); In re the Marriage of Murray, 460 N.E.2d 1023, 1027 (Ind.Ct.App.1984) (holding that a local rule which required Trial Rule 12(B) motions to dismiss to be accompanied by a memorandum in support thereof or be deemed stricken is in conflict with Trial Rule 12(B) because the local rule is "an improper impingement" on motions made pursuant to the Trial Rule, which requires no such memorandum); Midwest Natural Gas Corp. v. Locke Stove Co., Inc., 435 N.E.2d 85, 87 (Ind.Ct.App.1982) (holding that a local rule which provided that all motions were considered submitted for ruling without a hearing unless a hearing was requested by separate motion is in conflict with Trial Rule 56(C) which provides that a trial court "shall conduct a hearing" on a motion for summary judgment).

In this case, Local Rule 4 expressly provides for the filing of a reply brief on a motion for summary judgment. Trial Rule 56 neither expressly permits nor precludes such a reply brief. The supreme court has, in other instances, either expressly permitted or expressly prohibited reply briefs. Compare T.R. 56 with App. R. 54(D) ("Reply briefs on Rehearing are prohibited.") and App. R. 46(C) ("The appellant may file a reply brief responding to the appellee's argument.") In Trial Rule 56, however, the supreme court has remained silent on the specific subject of a reply brief. The Rule does, however, provide for affidavits submitted in support or in opposition to summary judgment to be supplemented or opposed by depositions, answers to interrogatories, and...