dissenting.
According to T.R. 56(C), the trial court’s summary judgment granting the landlord’s lien priority over the secured interest of the bank was correct and should be upheld on appeal if (1) there was no genuine issue of material fact presented, and (2) the landlord’s lien was entitled to priority as a *554matter of law. By law the landlord’s lien was entitled to priority if the landlord perfected that lien while in ignorance of the prior secured interest of the bank. Peoples State Bank v. Thompson (1984), Ind.App., 462 N.E.2d 1068. Here the bank failed to offer any opposing affidavits or testimony addressed to the landlord’s motion for summary judgment, but instead in turn sought summary judgment upon a counterclaim premised on a separate assertion that its secured interest had priority because the landlord had no lien at all. When an opponent, here the bank, fails to offer opposing affidavits or evidence, there may be no factual dispute for trial; nevertheless, the rule requires the court to make its determination from existing affidavits and testimony and cannot grant such an unopposed motion to the movant “as of course.” T.R. 56(C). The pleadings, affidavits and evidence supporting the landlord’s claim of priority ignore the question of its own knowledge. The Court of Appeals perceived some circumstantial evidence in the record of knowledge on the part of the landlord, but that evidence is adventitiously in the record and does not bear on the proper outcome on appeal. In such circumstances, despite the agreement of the parties that there was no material issue of fact, a correct application of the law would require a denial of the landlord’s petition for summary judgment. In such a setting, the result reached by the Court of Appeals, reversing the judgment for the landlord and remanding for further proceedings, seems to follow summary judgment practice.
DICKSON, J., concurs.