concurring.
I agree that the trial court did not err in permitting Bank to file its supplemental materials in response to the Motion for Summary Judgment filed by FCS. In doing so I would merely make an additional observation.
Wfiiether or not Bank had even tendered or filed such designated materials addressed to the Motion of FCS prior to the expiration of the thirty day provision of T.R. 56(C), i.e. January 10, 2002, it is my view that such would not have been necessary to make the granting of FCS’s Motion inappropriate.
Prior to the time of the hearing upon FCS’s Motion, i.e. May 1, 2002, Bank had filed its own Motion for Summary Judgment on January 18, 2002. Although this Motion was arguably deficient in its supporting documentation, the Motion and its accompanying material were adequate to at least disclose a genuine issue of fact as to the priority of the respective liens. Such state of the record as of that date would therefore disclose that FCS had not carried its burden under T.R. 56(C) to demonstrate its entitlement “to a judgment as a matter of law.” The subsequently filed supplemental materials merely further weakened the argument of FCS that it was entitled to summary judgment.
It may additionally be noted that at the point in time that the trial court was considering the propriety of FCS’s Motion for Summary Judgment, at the May 1, 2002 hearing, it would have been appropriate based upon the state of the record at that time to enter a summary judgment in favor of the Bank even if Bank had not filed its own Motion for Summary Judgment. See T.R. 56(B).
Despite these additional comments, I fully concur in the majority opinion.