Kissell v. Vanes

HOFFMAN, Judge.

Appellants-plaintiffs George M. Kissell and Marlene J. Kissell (collectively “Kissells”) appeal from the grant of summary judgment in favor of defendants-appellees James L. Vanes, Dana Vanes and Mary LaMarr on their amended complaint for rescission of a real estate purchase agreement and for money damages.

The facts relevant to this appeal disclose that the Kissells’ amended complaint was filed on October 9, 1992. On November 9, 1992, the Vanes and LaMarr sought summary judgment against the Kissells on their amended complaint by filing a motion and supporting memorandum with the trial court. After a hearing, the trial court granted their motion.1 This appeal ensued.

The Kissells raise two issues on appeal which we consolidate and restate as: whether the trial court erred by granting summary judgment in favor of the Vanes and LaMarr.

As of the January 1, 1991 amendments to Ind.Trial Rule 56(C), the parties to a summary judgment proceeding must expressly designate to the trial court evidentiary matter which supports their respective positions. T.R. 56(C) provides:

“At the time of filing the motion or response, a party shall designate to the court all parts of the 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 *880and the evidence relevant thereto.... ” (Emphasis added.)

T.R. 56(C). Summary judgment is appropriate only when 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.

As was the ease before the amendments, the initial burden is on the party seeking summary judgment to show the propriety of granting the motion. Babinchak v. Town of Chesterton (1992), Ind.App., 598 N.E.2d 1099, 1101, reh. denied. Relying on specifically designated evidence, the moving party must make a prima facie showing: (1) that there are no issues of material fact; and (2) that the movant is entitled to judgment as a matter of law. Id. Only when these two requirements are met does the burden then shift to the non-moving party who must point to specifically designated facts which establish an issue of material fact. Id.

Because the purpose of the amendments to T.R. 56 is to decrease the amount of evidentiary material trial courts are required to sift through in ruling on summary judgment motions, Pierce v. Bank One-Franklin, NA (1993), Ind.App., 618 N.E.2d 16, 19, trans. denied, neither the trial court nor this Court on appeal can look beyond the evidence specifically designated to the trial court. Midwest Commerce Banking Co. v. Livings (1993), Ind.App., 608 N.E.2d 1010, 1012. Although T.R. 56(C) is silent as to the specificity required for designations, this Court in Pierce explained that a proper designation consists of: (1) a list of the factual matters which are or are not in dispute, (2) supported by a specific designation to their location in the record, and (3) a brief synopsis of why those facts are material. Pierce, 618 N.E.2d at 19. Designating various pleadings, discovery material, and affidavits in their entirety fails to meet the specificity required under the rule. Intelogic Trace Texcom v. Merchants National Bank, et al. (1993), Ind.App., 626 N.E.2d 839, 842 n. 4. Moreover, as the rule itself indicates, the proper time for designating evidence is “[a]t the time of filing the motion or response_” T.R. 56(C).

The Vanes and LaMarr requested summary judgment on November 9, 1992, over a year and a half after the amendment to T.R. 56(C) requiring designation. However, a review of their motion discloses that they made no attempt to designate any evidence in support of their position. Likewise, their supporting memorandum exhibits a mere cursory reference to discovery materials. “It is not within a trial court’s duties to search the record to construct a claim or defense for a party.” Rosi v. Business Furniture Corp. (1993), Ind., 615 N.E.2d 431, 434-5. The Vanes and LaMarr’s motion for summary judgment fails to meet the designation requirements of T.R. 56(C). Failing to meet their initial burden under T.R. 56(C), we need not go any further in the analysis. Summary judgment granted in their favor was in error. The decision of the trial court is reversed.

Reversed.

BAKER, J., concurs in result with opinion, in which STATON, J., concurs.

. In the present case, the trial court entered findings of fact and conclusions of law. Although such findings facilitate appellate review by offering both this Court and the appellants valuable insight into the lower court's rationale, they have no other effect. See Strutz v. McNagny (1990), Ind.App., 558 N.E.2d 1103, 1106. Thus, we will not rely on the findings but will instead review this case according to the T.R. 56(C) standard.