Rueth Development Company and Rueth Development Company d/b/a Superior Lumber Company v. H&H Rueth, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 17 2017, 5:34 am

court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Daniel A. Medrea Stephen M. Maish
Lucas, Holcomb & Medrea Maish & Mysliwy
Merrillville, Indiana Hammond, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Rueth Development Company April 17, 2017
and Rueth Development Court of Appeals Case No.
Company d/b/a Superior 45A03-1608-CP-1821
Lumber Company, Appeal from the Lake Superior
Appellant-Plaintiff, Court
The Honorable John M. Sedia,
v. Judge
Trial Court Cause No.
H & H Rueth, Inc., 45D01-9209-CP-1103
Appellee-Defendant.

Bradford, Judge.

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 Case Summary
[1] On September 11, 1992, Appellant-Plaintiff Rueth Development Company and

Rueth Development d/b/a Superior Lumber Company (“RDC”) filed a

complaint against Appellee-Defendant H&H Rueth, Inc. (“H&H”) alleging that

H&H owed RDC money. Prior to trial, the parties entered into a written

release and settlement agreement. RDC, however, did not dismiss the case per

the agreement, prompting H&H to file a motion for summary judgment. RDC

never filed a response to the motion. After a hearing on August 10, 1995, the

trial court took the motion under advisement. The trial court, however,

ultimately failed to rule on H&H’s motion.

[2] RDC did not file a response to the motion until April of 2016. A hearing was

held on H&H’s motion for summary judgment in July of 2016. The trial court

again took the motion under advisement. On July 13, 2016, the trial court

issued an order granting H&H’s motion for summary judgment. The trial court

also found that it could not consider any of RDC’s untimely materials filed in

response to the motion.

[3] On appeal, the parties raise the following restated issue: whether the trial court

correctly found that H&H was entitled to summary judgment based upon its

1995 motion for summary judgment and the documents H&H filed with said

motion. Because the trial court correctly found that RDC’s untimely response

and corresponding documents could not be considered, we affirm the trial

court’s order granting summary judgment in favor of H&H.

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 Facts and Procedural History
[4] On September 11, 1992, RDC initiated this case by filing a complaint against

H&H alleging that H&H owed RDC various amounts for building materials

and residential lots purchased from RDC. After obtaining additional time to

plead, H&H filed a timely answer on October 29, 1992. The case was

scheduled for a three-day jury trial in June of 1995. On or about May 18, 1995,

the parties entered into a written release and final settlement agreement to fully

resolve the case. RDC, however, failed to dismiss the case with prejudice as the

settlement agreement required. In response, H & H filed a verified summary

judgment motion and to vacate the scheduled trial date.

[5] On June 2, 1995, the trial court entered an order that vacated the three-day jury

trial and set H&H’s summary judgment motion for hearing on August 10, 1995.

RDC requested an extension of time to respond to H&H’s summary judgment

motion in a motion for expedited hearing and extension of time filed on June

19, 1995. The trial court granted the motion and extended RDC’s time to

respond to July 14, 1995.

[6] On July 19, 1995, RDC filed a second motion for extension of time. The trial

court granted the request giving RDC until August 10, 1995, despite the fact

that the first extension expired on July 14, 1995. On July 28, 1995 and August

2, 1995, H&H filed objections to the second motion for an extension.

[7] According to a transcript, a hearing was held on August 10, 1995, to discuss the

summary judgment motion. During the hearing, RDC indicated that it would

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 be filing a response, but there is no record of such response ever being filed.

H&H also objected to the filing of any untimely response to its motion. At the

conclusion of the hearing, the trial court took H&H’s summary judgment

motion under advisement.1 According to the chronological case summary, the

motion was never ruled on by the then-presiding judge, Special Judge Daniel J.

Molter. The docket also shows that no response was ever filed by RDC.

[8] On October 29, 2015, Judge John M. Sedia, the current presiding judge, set a

hearing for February 19, 2016, on the response issue relating to H&H’s

summary judgment motion. On February 19, 2016, H&H filed a trial brief and

related documents to address the response issue. The February 19, 2016,

hearing was continued to June 17, 2016.

[9] On April 1, 2016, RDC filed various documents. H & H filed its reply to

RDC’s documents on April 11, 2016. The trial court judge then continued the

June 17, 2016 hearing date to July 12, 2016. The hearing was held on July 12,

2016. On July 13, 2016, the trial court entered an order granting H&H’s

summary judgment motion.

Discussion and Decision

1
Although the court failed to rule upon the summary judgment motion for over twenty years until the
current judge set it for hearing, neither party filed a “lazy judge” motion pursuant to Indiana Trial Rule 53.1
(1994).

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[10] RDC appeals the trial court’s order granting summary judgment to H & H.

“We first observe that a trial court’s order granting summary judgment comes

to us ‘cloaked with a presumption of validity.’” DiMaggio v. Rosario, 52 N.E.2d

896, 903 (Ind. Ct. App. 2016) (internal citations omitted). Our Supreme Court

has set forth the following standard of review:

We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of ... the non-moving parties, summary judgment is
appropriate ‘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.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). However, we will affirm

the “trial court’s entry of summary judgment if it can be sustained on any

theory or basis in the record.” DiMaggio, 52 N.E.3d at 904.

[11] RDC did not file a timely response to H & H’s motion despite receiving two

extensions. In fact, RDC did not respond to H & H’s motion for summary

judgment for over twenty years. After the trial court held a hearing on July 12,

2016, it declined to consider RDC’s untimely filed response and corresponding

documents and granted H&H’s motion for summary judgment.

[12] Pursuant to Indiana Trial Rule 56(c), a party opposing a motion for summary

judgment has thirty days to serve a response or any other opposing affidavits.

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 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.

Borsuk v. Town of St. John, 820 N.E.2d 118, 124 n.5 (Ind. 2005) (emphasis

added). In Borsuk, our Supreme Court held that sixty days was untimely for a

party to file an affidavit opposing a summary judgment motion and it could not

be considered when determining summary judgment. Id. Consequently, it is

not a stretch to say that a response and the corresponding documents filed over

twenty years late are extremely untimely and the trial court did not err when it

determined that it could not consider such materials.

[13] RDC asserts that even if it did not submit an “opposing affidavit or other

evidence to contradict H&H’s motion, H&H was not entitled to summary

judgment.” Corrected Appellant’s Br. p. 37. Because its response and

supporting documents could not be considered by the trial court, RDC has not

provided a factual basis for opposing summary judgment and it has not met its

burden of establishing the existence of a genuine issue of material fact that

would preclude summary judgment.

[14] We affirm the trial court’s order granting summary judgment in favor of H&H.

Vaidik, C.J., and Brown, J., concur.

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