dissenting.
I respectfully dissent from the majority's conclusion that the trial court had discretion under Indiana Trial Rule 56(I) to grant Acton additional time to respond to Simon's second motion for summary judgment.
The principal issue here concerns whether the trial court had the discretion under Trial Rule 56(I) to allow Acton to respond to Simon's second motion for summary judgment after the thirty day period provided for in Trial Rule 56(C) had elapsed. Trial Rule 56(C) provides in relevant part:
An adverse party shall have thirty (80) days after service of the motion to serve a response and any opposing affidavits. ... At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto.
We have previously stated that Trial Rule 56(C) is "intended to aid the efficiency of summary judgment proceedings by ensuring that opposing parties, trial courts and appellate courts are not required to search the record in an effort to discern whether genuine issues of material fact exist." Nobles v. Cartwright, 659 N.E.2d 1064, 1070 (Ind.Ct.App.1995).
However, Trial Rule 56(I), at the time Simon filed its second motion for summary judgment, provided that a trial court, for cause found, could alter any time limit set forth in Trial Rule 56. In Desai v. Croy, 805 N.E.2d 844, 850 (Ind.Ct.App.2004), trans. denied, we had the opportunity to consider Trial Rule 56(ID), and we stated:
[WJlhere a nonmoving party fails to respond within thirty days by either (1) filing affidavits showing issues of material fact, (2) filing his own affidavit under [Trial] Rule 56(F) indicating why the facts necessary to justify his opposition are unavailable, or (8) requesting an extension of time in which to file his response under [Trial Rule] 56(I), the trial court lacks discretion to permit that par*1242ty to thereafter file a response. In other words, a trial court may exercise discretion and alter time limits under [Trial Rule] 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.
Effective January 1, 2005, Trial Rule 56(I) was amended and now states, "For cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit."
Acton argues that the trial court had the discretion pursuant to Trial Rule 56(I) to allow it to respond to Simon's second motion for summary judgment even though the thirty-day period provided for in Trial Rule 56(C) had elapsed. To support its position, Acton relies upon Justice v. Clark Mem'l Hosp., 718 N.E.2d 1217 (Ind.Ct.App.1999), trans. denied. In that case, the hospital filed a motion for summary judgment, and Justice filed a response and a designation of evidence. The trial court denied the hospital's motion for summary Judgment. Later, the hospital renewed its motion for summary judgment. Justice failed to respond to this motion or designate any evidence within the thirty days provided for in Trial Rule 56(C), and the trial court granted the hospital's motion. On appeal, the hospital argued that the trial court's order granting summary judgment in its favor should be affirmed because Justice failed to file a timely response to the second motion for summary judgment. We began by noting that "a trial court may properly exclude from its consideration materials filed in response to a motion for summary judgment more than thirty days after the motion." Id. at n. 2. Despite that, we declined to affirm the grant of summary judgment in favor of the hospital on that basis "where, as here, the Justices had already designated evidence in response to the Hospital's original motion." Id. We concluded that
[als long as a trial court is aware of the materials a party relies upon in opposition to a motion for summary judgment, the designation requirement is met. It thus would not further the purpose of the designation provision to require that a party in the position of the Justices continually re-designate its evidence in response to successive motions for summary judgment when it has already offered those materials to the trial court.
Id. (citation omitted). Thus, in Justice, we determined, as the majority correctly states, that a party opposing successive motions for summary judgment is not required to re-designate its evidence. Id.
However, Justice is distinguishable. In Justice, the key fact was that the hospital's second motion for summary judgment was a renewal of its first motion for summary judgment, to which Justice had already responded and designated evidence. Because the hospital's second motion for summary judgment dealt with the same claim and substantially the same issues, we concluded that it was unnecessary for Justice to re-designate his evidence. Here, although Simon's two motions for summary judgment are successive in the sense that one was filed after the other, Simon's second motion for summary judgment is in no way merely a renewal of its first motion for partial summary judgment. In Simon's first motion for partial summary judgment, Simon argued that it was entitled to summary judgment on Acton's counterclaim. In this motion, Simon contended (1) that it did not breach any of the leases; (2) that, pursuant to a clause in the leases, Acton was not entitled to rely upon any of Simon's representations other than those found within the leases; and (8) that its conduct did not constitute intentional interference with a business relationship. *1243In Simon's second motion for summary judgment, though, Simon argued that it was entitled to summary judgment on its claim that Acton breached the leases. Simon argued that Acton breached each of the four leases by failing to pay rent, closing its businesses, and vacating the premises. Simon also engaged in an extensive discussion about the various types of damages it was entitled to. Unlike the motions for summary judgment in Justice, Simon's motions for summary judgment do not relate to the same claim or address the same issues. Because of this, I believe that if Acton wanted to contest Simon's second motion for summary judgment it could not simply rely upon the evidence it had already designated in response to Simon's first motion for partial summary judgment, and, instead, had to timely submit a new response and designation of evidence specifically tailored to address Simon's second motion for summary judgment. - Otherwise, the trial court would be forced to comb through the record in order to determine whether any genuine issues of material fact existed, which is contrary to the purpose of Trial Rule 56(C). See Nobles, 659 N.E.2d at 1070.
The majority seems to agree that Justice is not directly on point. However, the majority also determined, I believe erroneously, that Desai does not apply here because Simon filed successive motions for summary judgment. Op. at 1240. The majority goes on to note that "[the factual disputes discernable to the trial court from Bernard's deposition, in the context of proceedings on Simon's motion for partial summary judgment, are the same factual disputes relevant to the second motion for summary judgment." Id. at 1240 The majority concludes:
The trial court, presented with successive motions for summary judgment and materials in opposition to summary judgment, relevant to the same factual circumstances, had discretion to grant Acton additional time to respond to the second summary judgment motion. Inasmuch as Action's materials were timely, the trial court properly considered them in ruling on the motion for summary judgment.
Id. at 1240. Thus, for the majority, the reason the trial court had the discretion under Trial Rule 56(I) to grant Acton additional time to respond is because Simon filed successive motions for summary judgment that dealt with or involved the same factual circumstances.
I disagree with this rationale. As already stated, Simon's motions for summary judgment are only successive in the sense that one was filed after the other. Simon's second motion for summary judgment is not a renewal of its first motion for partial summary judgment because it deals with different legal claims and legal issues. Simon's motions for summary judgment then are separate and. independent motions. Furthermore, it is only natural that both of Simon's motions for summary judgment would address some of the same factual cireumstances because both Acton's counterclaim and Simon's claim arose out of the same events. Simon's first motion for partial summary judgment, though, primarily focuses on the facts surrounding Simon's own actions, while Simon's second motion for summary judgment focuses on Acton's actions.
Because Simon's second motion for summary judgment deals with different legal claims and issues from its first motion for partial summary judgment, I see no reason why the rule in Desai should not apply here. Pursuant to Desai, the trial court only had discretion to alter the time limits under Trial Rule 56(D) if Acton filed a response or sought an extension within thirty days from the date that Simon filed *1244its second motion for summary judgment. Acton did not file a response or seek an extension within thirty days after Simon filed its second motion for summary judgment. Therefore, the trial court did not have the discretion under Trial Rule 56(I) to grant Acton additional time to respond to Simon's second motion for summary judgment, and the trial court improperly considered Acton's response and designation of evidence when it ruled on Simon's motion. Thus, I would reverse the trial court's order denying Simon's second motion for summary judgment and remand for further proceedings.