FOR PUBLICATION ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
PETER A. VELDE JEFFREY E. STRATMAN Kightlinger & Gray, LLP Aurora, Indiana Indianapolis, Indiana
CRYSTAL G. ROWE Kightlinger & Gray LLP FILED Mar 29 2012, 9:21 am New Albany, Indiana CLERK of the supreme court, court of appeals and tax court
IN THE COURT OF APPEALS OF INDIANA
DELAGE LANDEN FINANCIAL ) SERVICES, INC., ) ) Appellant-Plaintiff, ) ) vs. ) No. 15A05-1107-CC-366 ) COMMUNITY MENTAL HEALTH ) CENTER, INC., ) ) Appellee-Defendant. )
APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Jonathan N. Cleary, Judge Cause No. 15D01-1012-CC-388
March 29, 2012
OPINION - FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issues
DeLage Landen Financial Services (“DLL”) filed a complaint for breach of contract
against Community Mental Health Center, Inc. (“CMHC”), and subsequently sought
summary judgment in its favor. DLL appeals the trial court‟s denial of its motions to strike
CMHC‟s response to DLL‟s motion for summary judgment and the trial court‟s denial of its
motion for summary judgment. Concluding the trial court abused its discretion in
considering CMHC‟s late-filed response on summary judgment and that, considering only the
properly designated evidence, summary judgment should be granted to DLL, we reverse and
remand.
Facts and Procedural History
CMHC leased seven copy machines and related accessories pursuant to a written lease
agreement with Pitney Bowes Credit Corporation (“Pitney Bowes”). On December 6, 2010,
DLL, as assignee-lessor, filed a complaint against CMHC seeking contract damages and
other relief. CMHC filed an answer and asserted certain affirmative defenses.
On March 15, 2011, DLL filed a motion for summary judgment and designation of
evidence. Pursuant to Trial Rule 56(C), CMHC had thirty days – or until April 18, 2011
including the three-day extension for service by mail1 – to file a response. On April 15,
2011, the trial court set DLL‟s motion for a hearing on May 27, 2011. On May 27, 2011,
CMHC filed a motion to continue the hearing, alleging counsel had a family emergency.
That motion was granted. Also on May 27, 2011, CMHC filed a Motion for Enlargement of
1 See Ind. Trial Rule 6(E).
2 Time to File Response to Motion for Summary Judgment, simultaneously filing the
Response. In the Motion for Enlargement of Time, CMHC‟s counsel relied on Trial Rule
6(B)(2), allowing a trial court to permit an act to be done upon motion made after the
expiration of the time period for doing so if the failure to act was the result of excusable
neglect. CMHC‟s counsel stated that he had an inexperienced scheduling secretary who did
not properly calendar the due date for the Response, and that he did not notice the failure to
file a response until he reviewed his calendar for the week of May 27, 2011, and discovered
the summary judgment hearing. DLL objected to the enlargement of time, citing the Indiana
Supreme Court case of HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008),
in support of the proposition that because CMHC failed to respond to the summary judgment
motion in any way within thirty days of its filing the trial court could not consider any filings
made thereafter. On June 3, 2011, the trial court denied the Motion for Enlargement of Time.
Following the trial court‟s order denying CMHC an enlargement of time to respond to
the motion for summary judgment, DLL filed a motion to strike CMHC‟s response to
summary judgment as untimely and CMHC requested Trial Rule 60(B) relief from the trial
court‟s June 3, 2011, order. On June 24, 2011, the trial court denied DLL‟s motion to strike,
allowing CMHC‟s response to stand and therefore, effectively granting CMHC‟s requested
Trial Rule 60(B) relief. DLL filed a motion to reconsider the trial court‟s June 24, 2011,
order. The trial court vacated its June 24, 2011, order and set DLL‟s motion to reconsider for
a hearing. Following the hearing, the trial court denied DLL‟s motion to strike CMHC‟s
3 response to summary judgment, granted CMHC permission to file its belated response, and
denied DLL‟s motion for summary judgment:
Plaintiff, [DLL], having filed its Motion for Summary Judgment and the Court, having considered said motion and being duly advised in the premises, hereby denies the same. The Court further vacates the June 24, 2011 Order denying [DLL‟s] Strike Motion, however the court now reinstates said order after having held a full hearing on said issue on July 8, 2011. Further the Court grants [CMHC] permission to file the summary judgment response pleadings which were filed on or about June 6, 2011.
Appellant‟s Appendix at 7. DLL now appeals. Additional facts will be supplied as
necessary.
Discussion and Decision
I. Motion for Relief from Judgment
DLL first contends the trial court erred in granting CMHC‟s Rule 60(B) motion for
relief from the June 3, 2011, order denying an enlargement of time to file its summary
judgment response and allowing CMHC to file a belated response to summary judgment.
A. Standard of Review
Indiana Trial Rule 60(B) provides:
On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for the following reasons: (1) mistake, surprise, or excusable neglect . . . . *** . . . A movant filing a motion for reason[ ] (1) . . . must allege a meritorious claim or defense.
The burden is on the movant for relief from judgment to demonstrate that the relief is both
necessary and just. In re Paternity of M.W., 949 N.E.2d 839, 842 (Ind. Ct. App. 2011). Trial
4 Rule 60(B) “affords relief in extraordinary circumstances which are not the result of any fault
or negligence on the part of the movant.” Goldsmith v. Jones, 761 N.E.2d 471, 474 (Ind. Ct.
App. 2002).
Our review of a trial court‟s grant or denial of a motion for relief from judgment
pursuant to Trial Rule 60(B) is limited to determining whether the trial court committed an
abuse of discretion. Citimortgage, Inc. v. Barabas, 950 N.E.2d 12, 15 (Ind. Ct. App. 2011).
A trial court abuses its discretion when its ruling is clearly against the logic and effect of the
facts and circumstances before the court. TacCo Falcon Point, Inc. v. Atlantic Ltd. P‟ship
XII, 937 N.E.2d 1212, 1218 (Ind. Ct. App. 2010).
B. Relief from Judgment
The propriety of the trial court‟s grant of relief from judgment ultimately relates back
to whether the trial court should consider CMHC‟s response to DLL‟s motion for summary
judgment. Trial Rule 56 states, in pertinent part:
(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. . . . *** (F) 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) For cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit.
5 In Seufert v. RWB Med. Income Props. I Ltd. P‟ship, 649 N.E.2d 1070, 1073 (Ind. Ct.
App. 1995), this court held that a trial court has discretion to order a continuance pursuant to
Trial Rule 56(F) or alter time limits pursuant to Trial Rule 56(I) only where the non-movant
has responded or sought an extension of time in which to respond within thirty days of the
motion for summary judgment being filed. In Desai v. Croy, 805 N.E.2d 844 (Ind. Ct. App.
2004), trans. denied, this court noted that our cases had consistently followed the Seufert rule
until Farm Credit Servs. v. Tucker, 792 N.E.2d 565 (Ind. Ct. App. 2003), in which this court
held the trial court had discretion under Trial Rule 56(I) to consider the non-movant‟s
designated evidence even when the non-movant had failed to respond within thirty days. Id.
at 848-49 (citing Farm Credit Serv., 792 N.E.2d at 569-70). Nonetheless, Desai followed
Seufert and again held that “a trial court may exercise discretion and alter time limits under
56(I) only if the nonmoving party has responded or sought an extension within thirty days
from the date the moving party filed for summary judgment.” 805 N.E.2d at 850.
In HomEq, our supreme court considered whether the trial court erred in declining to
consider the non-movants‟ joint affidavit in opposition to summary judgment, filed over one
year after the motion for summary judgment. The non-movants argued on appeal that the
trial court has discretion to consider late-filed responses and should have done so in this case.
Our supreme court acknowledged the then-recent inconsistent authority, but characterized
the Desai decision as providing a bright line rule precluding late filing. Id. at 98. The court
also stated that “[a]ny residual uncertainty was resolved . . . when we cited Desai with
6 approval” in a 2005 case. Id. (citing Borsuk v. Town of St. John, 820 N.E.2d 118 (Ind.
2005)). In Borsuk, the court stated:
When a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response, requesting a continuance under Trial Rule 56(I), or filing an affidavit under Trial Rule 56(F), the trial court cannot consider summary judgment filings of that party subsequent to the 30-day period.
820 N.E.2d at 124 n.5. Pursuant to this authority, DLL argues the trial court had no
discretion to grant relief and allow the consideration of CMHC‟s late-filed response.
CMHC contends that HomeEq can be distinguished by its facts and procedural
history. In HomeEq, the plaintiff filed a motion for summary judgment on April 15, 2004.
Although the defendants sought a series of continuances of the summary judgment hearing,
at no time within thirty days after service of the motion for summary judgment did they
request alteration of the time limits imposed by Trial Rule 56. A summary judgment hearing
was ultimately held on May 9, 2005, on which date the defendants filed a joint affidavit in
opposition to summary judgment. The trial court declined to consider the affidavit and
granted the plaintiff‟s motion for summary judgment. Our supreme court concluded, based
on the rule discussed above, that the trial court did not err in refusing to consider the affidavit
and affirmed the grant of summary judgment. HomeEq, 883 N.E.2d at 99.
CMHC distinguishes this case from HomeEq by noting first, the non-movant in
HomeEq never requested an enlargement of time under the Indiana Trial Rules whereas
CMHC requested an enlargement of time pursuant to Trial Rule 6(B)(2), and second, the
affidavit in HomeEq was filed thirteen months after the motion for summary judgment (and
7 one year after a response was due) whereas CMHC‟s materials were submitted approximately
two months after DLL‟s motion for summary judgment (or slightly over one month after they
were due).
As to CMHC‟s reliance on its request for an enlargement of time to distinguish this
case from HomeEq, Trial Rule 6(B)(2) provides:
When an act is required or allowed to be done at or within a specific time by these rules, the court may at any time for cause shown: (1) order the period enlarged, with or without motion or notice, if request therefor is made before the expiration of the period originally prescribed or extended by a previous order; or (2) upon motion made after the expiration of the specific period, permit the act to be done where the failure to act was the result of excusable neglect; but, the court may not extend the time for taking any action for judgment on the evidence under Rule 50(A), amendment of findings and judgment under Rule 52(B), to correct errors under Rule 59(C), statement in opposition to motion to correct error under Rule 59(E), or to obtain relief from final judgment under Rule 60(B), except to the extent and under the conditions stated in those rules.
CMHC argues that, despite the holding in HomeEq with respect to Trial Rule 56, Trial Rule
6(B)(2) “on its face allows the trial court discretion to allow an enlargement of time as long
as the court finds excusable neglect . . . .” Brief of Appellee at 24. CMHC notes that Trial
Rule 56(I) restates Trial Rule 6(B)(1), and that because Trial Rule 56 is not one of the rules
specifically exempted from the operation of Trial Rule 6(B)(2), an enlargement of time is
allowed.
When trial rules conflict, we apply the principles of statutory construction under
which rules are to be construed together and in harmony when possible. Carter-McMahon v.
McMahon, 815 N.E.2d 170, 175 (Ind. Ct. App. 2004). Thus, when two rules cover the same
8 subject matter and one does so generally where the other does so specifically, the more
specific rule prevails. Daugherty v. Robinson Farms, Inc., 858 N.E.2d 192, 197 (Ind. Ct.
App. 2006), trans. denied. The parties disagree over which rule – Trial Rule 6 or Trial Rule
56 – is more specific. We recognize, as CMHC has pointed out, that Trial Rule 56 is not one
of the rules Trial Rule 6(B)(2) specifically exempts from its operation. However, none of the
rules that are specifically exempted from Trial Rule 6(B)(2) have their own enlargement of
time provision and would thus be subject to Trial Rule 6(B)(2) without the exemption.
Because Trial Rule 56 has its own enlargement of time provision, which applies only to Trial
Rule 56 and is therefore the more specific of the two rules, it does not need to be exempted
from Trial Rule 6(B)(2) because it is not subject to Trial Rule 6(B)(2) in the first instance.
Thus, the fact that CMHC filed a motion for enlargement of time pursuant to Trial Rule
6(B)(2) and the non-movant in HomeEq did not is not a pertinent distinction because Trial
Rule 6(B)(2) does not apply to summary judgment materials.
CMHC also points out that the non-movant in HomeEq tried to file its response one
year after it was due, whereas CMHC attempted to file its response only approximately one
month after it was due. Given that the rule announced in HomeEq is not a substantial
compliance rule, the length of time that passes between the date a response to a motion for
summary judgment is due and the date a response is filed is immaterial. In Thayer v. Gohil,
740 N.E.2d 1266 (Ind. Ct. App. 2001), trans. denied, the non-movant timely requested and
was granted two extensions of time to respond to a motion for summary judgment. The
second extension allowed her until November 29, 1999, to file her response. The non-
9 movant filed her response and accompanying affidavits on December 1, 1999, and also filed
a motion for leave to file her response belatedly, alleging she had good cause for not meeting
the deadline. The trial court ultimately struck her response and granted summary judgment to
the movant. On appeal, we held the non-movant‟s failure to show cause for alteration of time
before the November 29, 1999, deadline “must result in a striking of her untimely response.”
Id. at 1268. In so holding, we specifically noted that the non-movant, filing her response
only two days after the deadline, had come “closer to complying with T.R. 56” than in other
cases reaching the same result. Id. Nonetheless, “it is essential that the non[-]movant timely
comply with the dictates of T.R. 56.” Id.; see also Borsuk, 820 N.E.2d at 124 n.5 (noting that
because non-movant filed affidavit two months after motion for summary judgment was filed
without requesting relief within thirty day period allowed to respond, trial court should not
have admitted the affidavit); Desai, 805 N.E.2d at 850 (non-movant failed to respond to
motion for summary judgment for approximately three and one-half months and trial court
therefore erred in allowing non-movant to file opposing affidavits at that time); Seufert, 649
N.E.2d at 1073 (non-movant failed to respond to motion for summary judgment in the three
months between its filing and a hearing thereon and trial court therefore appropriately found
there was no evidence raising an issue of fact and properly granted summary judgment).
Because CMHC failed to file a response or request an extension within the prescribed
time, the trial court had no discretion to alter the time limits in Trial Rule 56. CMHC‟s
belated response should have been stricken and the trial court abused its discretion when it
10 granted CMHC relief from its earlier judgment and allowed CMHC‟s response to be filed
and considered on summary judgment.
II. Summary Judgment
DLL also contends the trial court erred in denying its motion for summary judgment.
We review a trial court‟s decision to grant or deny summary judgment de novo, standing in
the same position as the trial court and considering only the properly designated evidence in
evaluating the summary judgment motion. Liberty Country Club v. Landowners, 950 N.E.2d
754, 757 (Ind. Ct. App. 2011). A party seeking summary judgment has the burden to make a
prima facie showing through its designated evidence that there are no genuine issues of
material fact and the party is entitled to judgment as a matter of law. Coffman v. PSI Energy,
Inc., 815 N.E.2d 522, 526 (Ind. Ct. App. 2004), trans. denied. The non-moving party may
not then rest on the allegations of its pleadings to demonstrate the existence of a genuine
issue for trial, but must designate specific facts so showing. Id. The court must accept as
true those facts alleged by the non-moving party, construe the evidence in favor of the non-
movant, and resolve all doubts against the moving party. Id. This means, however, that
“only those facts alleged by the respondent/nonmovant and supported by affidavit or other
evidence „must be taken as true.‟” McDonald v. Lattire, 844 N.E.2d 206, 212 (Ind. Ct. App.
2006). We have determined the trial court erred when it allowed CMHC to respond and
designate evidence in opposition to DLL‟s motion. Accordingly, we will look only to the
evidence designated by DLL in reviewing the trial court‟s denial of summary judgment.
11 DLL sued CMHC for monthly rental payments due and not paid, for possession of the
equipment, and for attorney fees. On summary judgment, DLL designated CMHC‟s answer
to DLL‟s complaint, and the affidavits of Charles McAllister, a DLL employee, and Peter
Velde, DLL‟s attorney. In its answer, CMHC admitted that in 2005, it entered into a lease
and maintenance agreement with Pitney Bowes, agreeing to make monthly rental payments
for the lease of certain equipment. CMHC also asserted as affirmative defenses that Pitney
Bowes breached the lease and that CMHC had terminated the lease prior to the time it ceased
making payments.
McAllister avers in his affidavit that he has been a Litigation Recovery Specialist at
DLL since 2008 and that he has personal knowledge of the facts asserted therein. He further
avers that:
5. Pursuant to the terms of the Lease, CMHC agreed to lease seven (7) IM3511 copy machines and related accessories from Pitney (collectively referred to as the “Equipment”). In exchange for the Equipment, CMHC agreed to pay $1,933.00 per month to Pitney for sixty (60) consecutive months. 6. Shortly after CMHC‟s execution of the Lease and Maintenance Agreement, Pitney assigned and sold all of its rights, title and interest in and to the Lease to DLL. 7. In February 2009, CMHC discontinued paying the monthly rent required to be paid pursuant to the terms of the Lease. 8. CMHC is currently in default under the terms of the Lease. 9. Under the Lease, CMHC agreed to pay a late payment fee on any untimely monthly payments along with all costs, expenses and attorney fees incurred by DLL in enforcing the terms of the Lease. . . . *** 13. The Lease entitles DLL to the possession of the Equipment leased by CMHC upon CMHC‟s default and allows DLL to dispose of the Equipment by sale. . . . 14. The Lease is unconditional and absolute and cannot be terminated by CMHC. . . .
12 Appellant‟s App. at 21-22. Attached as exhibits to McAllister‟s affidavit are copies of the
lease and maintenance agreement, seven statements of account, and the written demand letter
from DLL to CMHC for payment. The lease shows that CMHC is to lease equipment
described as seven model “IM3511” copiers and accessories described as “1-4510, 3-3510, 9-
DL185, and 5-DL250,” and make sixty monthly payments of $1,933. Id. at 26. The “terms
and conditions” of the lease provide:
this lease cannot be cancelled or terminated for any reason, all payments under this lease [ ] unconditional and absolute and you shall pay them regardless of whether the equipment is damaged, destroy[ ], defective, unusable or becomes obsolete, and regardless of any dispute with, or claims against, [Pitney Bowes], vendor or any other party. Your o[ ]gations under this lease are not subject to defense, setoff, counterclaim, abatement, or reduction for any reason.
Appellant‟s App. at 26.2 “All Payments due under this Lease shall be payable only to [Pitney
Bowes] at . . . Louisville, KY . . . until we direct you otherwise in writing.” Id. at 27. The
lease also allows Pitney Bowes to “sell, assign or transfer all or any part of this Lease and/or
the Equipment. The new owner will have the same rights that we have . . . . You also agree
and acknowledge that any Assignment by us will not materially change your obligations
hereunder.” Id. The seven statements of account for equipment of type “IM 3510” with
various serial numbers each show a date of last payment of February 27, 2009, and various
amounts due, totaling $53,185.08. Id. at 30-36. Velde avers in his affidavit, supported by a
billing information memo, that DLL has incurred or will incur attorney fees of $7,000 in
pursuing this action.
2 The copy of the lease included in the Appellant‟s Appendix is cut off along the right margin and is not entirely legible. The omissions in this quote reflect only what is actually shown on the copy.
13 DLL asserts this designated evidence – as we have determined above, the only
properly-designated evidence to be considered – shows there are no genuine issues of
material fact and it is entitled to summary judgment as a matter of law, in the form of a
judgment for the outstanding balance, attorney fees, and an order for possession of the
equipment. CMHC contends that even considering only DLL‟s evidence, there remain
questions of fact precluding summary judgment.
CMHC first argues that the lease was between it and Pitney Bowes, and although the
lease provides Pitney Bowes can assign its rights, the only designated evidence indicating
Pitney Bowes had in fact assigned its rights to DLL is the “vague assertion” in McAllister‟s
affidavit that the lease had been assigned. Brief of Appellee at 16. Trial Rule 56(E)
provides, in pertinent part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
Mere assertions in an affidavit of conclusions of law or opinions will not suffice. City of
Indianapolis v. Duffitt, 929 N.E.2d 231, 239 (Ind. Ct. App. 2010). “An affidavit need not
contain an explicit recital of personal knowledge when it can be reasonably inferred from its
contents that the material parts thereof are within the affiant‟s personal knowledge.” Decker
v. Zengler, 883 N.E.2d 839, 844 (Ind. Ct. App. 2008), trans. denied. However, CMHC
cannot meet its burden of showing a genuine issue of material fact for trial simply by
attempting to discredit McAllister‟s affidavit on appeal. McAllister‟s affidavit includes a
specific recitation that he has personal knowledge of the facts related therein. That he is
14 familiar with the CMHC lease and the corresponding accounts can also be inferred from his
position with DLL as a Litigation Recovery Specialist. See, e.g., Skaggs v. Merchants Retail
Credit Ass‟n, Inc., 519 N.E.2d 202, 203 (Ind. Ct. App. 1988) (averments that affiant was
employed by phone company and responsible for customer billing and collections sufficient
to conclude recital of payments and credits made by phone service customer were based on
personal knowledge). This is all that is required by Trial Rule 56(E).
CMHC admitted in its answer – which was designated by DLL as evidence in support
of its motion for summary judgment – that it entered into the lease and was obligated to make
monthly rental payments. CMHC has designated no evidence to refute McAllister‟s affidavit
stating that an assignment of the lease was made from Pitney Bowes to DLL or that CMHC
stopped making payments thereon. And CMHC has designated no evidence supporting its
affirmative defenses of breach or termination of the lease excusing lack of payment.
McAllister‟s affidavit, together with CMHC‟s answer, is sufficient to make a prima
facie showing that DLL, as Pitney Bowes assignee, has a lease agreement with CMHC, that
CMHC has failed to make the rental payments it was obligated pursuant to the lease to make,
and that pursuant to the lease DLL is entitled to past due rent amounts, possession of the
equipment, costs and fees.
CMHC also argues that the statements of account that purport to show the balance
CMHC allegedly owes DLL are not linked to and in fact contradict the lease. CMHC points
out that the lease is for seven model “IM 3511” copiers, but the statements of account are for
model “IM 3510” copiers and two of the statements of account show the same serial number.
15 These discrepancies were not designated as specific facts precluding summary judgment,
and even if they had been, do not rise to the level of a genuine issue of material fact when it
is undisputed that CMHC leased seven copiers and owed monthly rent thereon. McAllister
averred that CMHC owed DLL $53,185.08 for the rental of the equipment, specifically
incorporating the statements of account “for each copy machine leased by CMHC pursuant to
the Lease.” Appellant‟s App. at 22. In short, DLL alleged there was no issue of material
fact, designating evidence making a prima facie case that it was entitled to judgment as a
matter of law, and CMHC has failed to meet its burden of demonstrating an issue of fact.
DLL was entitled to entry of summary judgment in its favor.3
Conclusion
The trial court abused its discretion in considering CMHC‟s late-filed response to
DLL‟s motion for summary judgment, and considering only the properly designated
evidence, the trial court erred in denying summary judgment to DLL. The judgment of the
trial court is reversed and this cause is remanded for further proceedings consistent with this
opinion.
Reversed and remanded.
NAJAM, J., and VAIDIK, J., concur.
3 DLL alleges it is entitled, under the terms of the lease, to appellate attorney fees. In entering summary judgment for DLL on remand, the trial court should determine a reasonable fee to which DLL is entitled under the lease, including those for pursuing this successful appeal. Accordingly, we need not address DLL‟s claim that it is also entitled to appellate attorney fees pursuant to Indiana Appellate Rule 66(E).