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Party Who Doesn't Respond to a Motion for Summary Judgment in 30 Days Is Not Saved by Filing Cross-Motion

April 29, 2011

Last year, we warned you to always file your 56(F) motion because the Indiana Court of Appeals held that there were no exceptions if you failed to either file a response to a motion for summary judgment or seek an extension of time within 30 days after the motion was filed. Yesterday, the Indiana Court of Appeals sent that same message once again in Life v. F.C. Tucker Co., Inc., ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 49A02-1008-CC-93, when it stated that filing a cross-motion for summary judgment after the 30-day period expires does not change the rule.

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In this case, the Lifes contracted to have a home built. Eventually, a dispute arose and the Lifes brought suit for breach of the construction contract and negligent construction of the home. On March 30, 2010, F.C. Tucker filed a motion for summary judgment. The Lifes did not file a Rule 56(F) motion and did not file their response until May 12, 2011, in a document titled "Plaintiff's Response to Tucker's Motion for Summary Judgment and Plaintiff's Motion for Partial Summary Judgment." F. C. Tucker moved to strike the Lifes' response and the material designated in response. The trial court granted that motion, denied the Lifes' motion for partial summary judgment, and granted F.C. Tucker's motion for summary judgment.

On appeal, the Court held that the fact that the Lifes filed their own partial motion for summary judgment did not excuse their failure to respond to F.C. Tucker's motion in a timely manner.

That the Lifes' response and attached affidavits are also attached to a motion for partial summary judgment is of no moment. The rule of Desai [v. Croy, 805 N.E.2d 844 (Ind. Ct. App. 2004),] is a "bright line rule both for trial courts and the parties who litigate summary judgment motions." While we certainly acknowledge that Trial Rule 56(a) allows for claimants to move for partial summary judgment "at any time after the expiration of twenty [20] days from the commencement of the action or after service of a motion for summary judgment by the adverse party," (emphasis supplied), the Lifes may not be permitted to bypass established rules of trial procedure by cloaking their response in another procedural mechanism. Doing so would render meaningless Trial Rule 56(C)'s time limit of thirty days and allow litigants to respond to summary judgment motions at their leisure so long as they also included their own such motion.

The Court ultimately affirmed the trial court's decision granting summary judgment to F.C. Tucker.

This case simply repeats what we said last fall - always file your 56(F) motion. Courts will not excuse your failure to do so.

Lessons:

Be assured that your response to a motion for summary judgment will be stricken if you do not file it or a Rule 56(F) motion in a timely manner. NO EXCUSES.

Brad A. Catlin
Price Waicukauski & Riley, LLC
Learn more about Brad and contact us
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Party Who Doesn't Respond to a Motion for Summary Judgment in 30 Days Is Not Saved by Filing Cross-Motion

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