Myers v. Irving Materials, Inc.

*1230ROBB, Judge,

dissents with opinion.

I respectfully dissent from the majority's conclusion that the trial court properly granted summary judgment to IML

I agree with the general proposition as stated by the majority that onee a movant for summary judgment has met its initial burden of showing that there is no genuine issue of material fact and it is entitled to judgment as a matter of law, the opponent may not simply rest upon the allegations made in its own pleadings, but must respond with affidavits or other evidence showing that there is a genuine issue of fact in dispute. See op. at 1228. However, I believe that this general proposition is applicable only when the nonmovant is the one to rest exclusively on its own pleadings. In a case such as this, wherein the movant designates the nonmovant's pleadings as part of its own motion for summary judgment, I would hold that the general rule is not applicable for two reasons.

First, IMI designated its Complaint, the Myers' Answer (which included affirmative defenses), the affidavit of an IMI officer, and a brief in support of its motion for summary judgment. The Myers then did not need to designate their Answer in response, because it was already properly before the trial court. Moreover, I do not believe they were required to designate any additional evidence to support the allegations in their Answer and Affirmative Defenses because IMI, by designating those pleadings itself, effectively vouched for the truth of the allegations therein. I thus see a crucial distinction in the result depending upon which party designates the particular pleading.

Second, in line with the observation in Templeton that if the movant fails to make a prima facie showing that there are no genuine issues of material fact, then entry of judgment for the movant is precluded even if the nonmovant does not make a designation in response, 679 N.E.2d at 1371, I believe that by designating the Myers' Answer, IMI failed to meet that burden. IMI did not limit its designation of the Myers' Answer to only certain portions of the Answer; rather, the Answer in its entirety was designated. Taking all of IMI's designated material, including the Myers' Answer, I believe there were several issues of fact that precluded summary judgment. The designated evidence shows either that the Myers have failed to pay IMI for the materials provided, Appellant's Appendix at 12 (Complaint), or that the Myers have paid in full. Appellant's Appendix at 18 (Myers' First Affirmative Defense). The designated evidence also shows either that IMI provided asphalt for the Maplewood Golf Course between October 15 and October 31, 1997, Appellant's Appendix at 27 (Affidavit), or that IMI provided asphalt for the golf course beginning sometime in October 1997 and ending October 23, 1997. Appellant's Appendix at 18 (Myers' Second Affirmative Defense). There also appears to be an issue of fact regarding whether IMI knew that it was providing asphalt for two different jobs at two different locations. Appellant's Appendix at 18-19 (Myers' Third Affirmative Defense) and 27 (Affidavit). Given that resolution of these factual disputes is critical, I would hold that the trial court improperly granted summary judgment to IML.