dissenting.
I dissent from the majority opinion. Prejudice is presumed on appeal where a trial court fails to follow the mandate of Trial Rule 56 which provides that the trial court fix a time for a hearing on the motion for summary judgment before ruling upon the motion. The fixing of time for a hearing is the cornerstone which supports the equitable operation of Trial Rule 56. It is the notice to the parties that motions to publish depositions must be filed and granted by the trial court before the time fixed if the depositions are to be considered by the trial court. Augustine et al v. First Federal Savings and Loan et al. (1979), Ind., 384 N.E.2d 1018. It is notice to the parties that they must ask for an extension of time if they are contemplating the taking of a deposition which they wish the trial court to consider. If no time is fixed by the trial court, and it renders summary judgment, a party may find that the avenue to further discovery has been closed and that the showing of prejudice is now impossible. I would remand this cause to the trial court for the fixing of a time for a hearing on the motion for summary judgment.
The equitable operation of the Rule contemplates a wide range of options for the trial judge to control and manage litigation and at the same time shorten the fact finding process. This equitable operation of the Rule hinges upon the fixing of time for a hearing when the trial judge can determine whether a hearing is necessary “from the affidavits and testimony offered upon the matters placed in issue by the pleadings or such evidence.” The time fixed for hearing on a motion for summary judgment is a time when the trial judge may dispose of some of the issues or if summary judgment is not issued, the trial judge may interrogate the counsels of the parties “if practicable to ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted.” TR. 56(D) further provides:
“It shall thereupon make an order specifying the facts that appear without substantial controversy including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.”
TR. 56(E) provides that “The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, further affidavits, or, within the discretion of the judge, testimony of witnesses.” If a party wishes to present a witness to the trial court on a particular issue, he would have to know when the time was fixed by the trial court for the hearing so that he could notify the witness or ascertain whether the witness would be available. Without the fixing of time for a hearing, the entire summary judgment procedure would play havoc with the practicing attorney’s efforts to serve his client who is really prejudiced if he is denied his attorney’s considered judgment on matters before the trial court.
I think that it should be noted that the majority opinion does not cite any Indiana cases to support its conclusion that prejudice must be shown before failure to fix a time for hearing on a motion for summary judgment is reversible error on appeal. None of the cases cited are applicable. Furthermore, any change in the plain and unambiguous meaning of the Rule should be made by the Indiana Supreme Court.
I disagree with the Majority Opinion in its attempt to take Mrs. Otte to task for suggesting that she intended to file affidavits on the day before the time fixed for the hearing. Again, the Rule is quite explicit. The Rule gives Mrs. Otte this right. It provides:
*1232“The adverse party prior to the day of hearing may serve opposing affida-vits_”
The Majority Opinion nullifies this right and changes the rule:
“In response to the contention that Otte was denied the opportunity to ‘spring’ her affidavits on defendant the day before the hearing, it should be observed that the day when trial by ambush ruled the courts has long since passed. Surprise as a weapon of attack is not to be sanctioned as the modern rules of procedure were designed to eliminate the old concept of litigation as a battle of wits. A party opposing a motion for summary judgment must be diligent in countering the motion. Otte cannot claim “prejudice from the fact that the trial court took the sporting element out of her lawsuit.”1
The above statement by the Majority Opinion is wrong. If Otte had the right to file affidavits the day before the time fixed for hearing and intended to file affidavits but was prevented from doing so because the trial court failed to fix a time for hearing, she is prejudiced. She has a right to expect that the trial court will follow the Indiana Rules of Procedure with the same spirit and sense of responsibility as all members of the practicing bar are expected to follow the Indiana Rules of Procedure. If the failure to obey the clear, explicit dictates of the Indiana Rules of Procedure can be simply dismissed as harmless error, then, the erosion of an orderly judicial system has begun. If the clear, explicit meaning of the Indiana Rules of Procedure can be re-written by judicial opinion to avoid the consequence of a violation, then, the shroud of confusion will prevent any meaningful, just, and predictable solution to those disputes which must be resolved in our courts. If the clearly mandatory language of the Indiana Rules of Procedure can be rendered a nullity by the judicial opinion of this Court, then, the labors and deliberations of the Rules Committee to draft and recommend rules as well as the efforts expended in the adoption of rules by the Indiana Supreme Court will become mere trumperies.
Therefore, I dissent, and I would remand this cause back to the trial court with instructions to fix a time for a hearing on the motion for summary judgment.
. Indiana Rules of Procedure, TR. 56 is a modern rule of procedure and specifically gives Mrs. Otte the right to file affidavits the day before the hearing. It is designed to establish genuine issues of facts or uncontroverted facts so that judicial time can be conserved in the fact finding process. Where the facts are un-controverted a summary judgment may be appropriate.