I respectfully dissent.
According to Ind.Trial Rule 56(C), summary judgment is appropriate if 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. Where, as here, the defendant is the party moving for summary judgment, the defendant is entitled to judgment as a matter of law when it demonstrates undisputed material facts which negate at least one element of the plaintiff's claim. Pitcock v. Worldwide Recycling, Inc. (1991), Ind.App., 582 N.E.2d 412, 416. The majority opinion states that BFC failed to show undisputed facts negating an element of Rosi's claim that an enforceable agreement existed; however, the evidentiary matter Rosi specifically designated to the trial court concerned only the PAR document. As BFC notes, it was not until Rosi's Motion to Reconsider Ruling on Motions for Summary Judgment that he put forth the alleged oral agreement as an alternative theory of recovery. Under TR. 56(H), this Court cannot reverse summary judgment on the ground that there is a genuine issue of material fact unless the material fact and the evidence relevant thereto were specifically designated to the trial court.
I agree with the trial court's finding that the PAR document was merely an interoffice memorandum rather than an employment contract. I also agree with the trial court's finding that, due to the lack of an agreement as to compensation for profits acquired after termination of employment, Rosi had no entitlement to such compensation. Therefore, I would affirm the trial court's grant of summary judgment in favor of BFC. j