ATTORNEY FOR APPELLANT APPELLEES PROCEEDING WITHOUT ATTORNEY
Christine M. Stach
Rothberg Logan & Warsco LLP
Fort Wayne, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court FILED
Mar 26 2008, 11:06 am
_________________________________
No. 25S03-0710-CV-00459 CLERK
of the supreme court,
court of appeals and
tax court
HOMEQ SERVICING CORPORATION, F/K/A TMS MORTGAGE, INC.
D/B/A/ THE MONEY STORE, Appellant (Plaintiff below),
v.
BRADLEY J. BAKER AND CONSTANCE D. BAKER, Appellees (Defendants below).
_________________________________
Appeal from the Fulton Superior Court, No. 25D01-0306-MF-89
The Honorable Wayne E. Steele, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 25A03-0608-CV-383
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March 26, 2008
Dickson, Justice.
In this appeal, we address two issues. First, we hold that cross-error is available to appeal
issues presented in a motion to correct error that is belatedly granted contrary to the "deemed de-
nied" provisions of Ind. Trial Rule 53.3(A). Second, we hold that a trial court may not consider
untimely filed materials opposing summary judgment.
In this mortgage foreclosure action the trial court initially granted summary judgment in
favor of the plaintiff lender and against the defendant property owners. The defendants filed a
motion to correct error, which was not ruled on within thirty days after the hearing, and was
therefore subject to the "deemed denied" provisions of T.R. 53.3(A). Thirty-eight days after the
hearing, however, the trial court entered an order purporting to grant the motion and vacate
summary judgment. The plaintiff filed a notice of appeal of that order within thirty days, and the
defendants cross-appealed, asserting error in the denial of their motion to correct error. The
Court of Appeals reversed the trial court’s grant of the defendants’ motion to correct error, hold-
ing that the motion was automatically denied thirty days after the hearing pursuant to Rule
53.3(A), and that the defendants’ appeal was untimely because it was initiated more than thirty
days after the “deemed denied” date. Homeq Servicing Corporation v. Baker, 863 N.E.2d 1262
(Ind. Ct. App. 2007).
The defendants sought transfer, correctly asserting that the Court of Appeals did not ad-
dress their cross-appeal claim that they were entitled to appeal of the merits of their motion to
correct error. We granted transfer and now hold that the exception recognized in footnote 4 of
Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285, 289 (Ind. 2000), applies to permit the defen-
dants to raise that issue on appeal.
The defendants’ claim on the merits is that the trial court should have considered an affi-
davit filed by the defendants after the thirty days provided for response to a notice for summary
judgment, and without a timely motion for extension of that time. We hold that the trial court
correctly disregarded the defendants’ untimely affidavit opposing summary judgment, and there-
fore did not err in granting summary judgment to the plaintiff.
1. Challenging a Deemed Denied Motion to Correct Error by Cross-Appeal
The relevant facts are undisputed. On June 24, 2005, the defendants filed a motion to
correct error challenging the trial court's grant of the plaintiff's motion for summary judgment.
On June 29, 2005, the trial court scheduled the motion to correct error for a hearing on August 1,
2005, but a series of continuances resulted in the hearing not taking place until June 19, 2006.
Thirty-eight days then elapsed after this hearing, and on July 27, 2006, the trial court granted the
motion to correct error and vacated its prior order granting summary judgment. The plaintiff
then commenced this appeal on August 24, 2006.
2
Trial Rule 53.3(A) provides:
In the event a court fails for forty-five (45) days to set a Motion to Correct Error for
hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was
heard or forty-five (45) days after it was filed, if no hearing is required, the pending Mo-
tion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the
notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to
Correct error is deemed denied.
T.R. 53.3(A). When trial courts purport to grant a motion to correct error belatedly, that is, after
the expiration of the thirty-day "deemed denied" deadline in the rule, we have recognized that
issues arise regarding the efficient judicial administration and fairness to litigants, including po-
tential "unnecessary, impractical, harsh, and unfair consequences." Cavinder Elevators, 726
N.E.2d at 289.
To address these problems, this Court in Cavinder Elevators adopted a two-part rule.
First, if the opponent of a motion to correct error fails to timely appeal a belated grant of the mo-
tion, such opponent cannot claim on appeal that the trial court violated the time deadlines in T.R.
53.3(A). Second, if the proponent of the motion to correct error fails to timely appeal when it is
deemed denied under T.R. 53.3(A), such proponent cannot by cross-appeal later raise the issues
presented by its motion to correct error. Cavinder Elevators, 726 N.E.2d at 289. This second
aspect of the rule was subjected to a limited exception, however, in circumstances when a trial
court belatedly grants a motion to correct error before the expiration of the time within which the
proponent of the motion may appeal the merits motion to correct error that is deemed denied un-
der T.R. 53(A). In footnote 4, we explained:
If the trial court belatedly grants a motion to correct error before the party filing the
motion to correct error initiates an appeal but during the time period within which such
party is entitled to appeal from the deemed denial, the party may assert as cross-error the
issues presented in its "deemed denied" motion to correct error.
Cavinder Elevators, 727 N.E.2d at 289 n.4. This exception recognizes the probable correctness
of a trial court's decision modifying its own previous ruling and permits the proponent of the be-
latedly-granted motion to delay initiating a possibly unnecessary appeal until ascertaining
whether the opponent of the motion chooses to acquiesce in the belated ruling. If the opponent
appeals, however, seeking to invoke the "deemed denied" provision of T.R. 53.3(A), the propo-
nent may then by cross-appeal seek appellate review of the merits of its motion to correct error.
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In the present case, the defendants fell within the limited exception provided by footnote
4. The trial court had timely scheduled a hearing for the motion to correct error, but it failed to
rule within thirty days after the hearing. The motion was thus deemed denied pursuant to T.R.
53.3(A), and the defendants had thirty days to initiate an appeal of the deemed denial. Cavinder
Elevators, 726 N.E.2d at 289. Just eight days into that period, however, the trial court belatedly
granted the motion to correct error. The footnote 4 exception thus permitted the defendants to
initially forego commencing an appeal to see if the plaintiff would agree with the merits of the
trial court's belated ruling and choose not to assert its invalidity on grounds of tardiness. When,
to the contrary, the plaintiff brought this appeal, the defendants were entitled to proceed by
cross-appeal to obtain appellate review of the merits of the issues raised in the motion to correct
error.
2. Untimely Filed Affidavit Opposing Summary Judgment
In their cross-appeal, the defendants contend that the trial court erred in granting the
plaintiff's motion for summary judgment, arguing that their belatedly-filed affidavit in opposition
to summary judgment could have and should have been considered, and that it establishes sig-
nificant disputed issues of fact to preclude summary judgment.
The plaintiff filed its motion for summary judgment on April 15, 2004, and the trial court
scheduled it for hearing on September 13, 2004. The defendants sought, and the trial court
granted, a series of four continuances, with the hearing ultimately occurring on May 9, 2005. At
no time within thirty days after service of the plaintiff's motion for summary judgment did the
defendants request any alteration of the time limits imposed by Indiana Trial Rule 56. Nor did
the defendants at any time before the hearing seek a continuance to permit affidavits to be ob-
tained pursuant to T.R. 56(F). On the day of the hearing, the defendants filed their joint affidavit
in opposition to summary judgment—their only designated materials opposing summary judg-
ment. The trial court declined to consider the defendants' affidavit and granted the plaintiff's mo-
tion for summary judgment. In their affidavit, in their motion to correct error, and on cross-
appeal, the defendants assert that the plaintiff and its counsel have repeatedly ignored or stalled
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in complying with the defendants' requests for documents and other discovery relevant to the
plaintiff's defenses. Citing JSV, Inc. v. Hene Meat Co. Inc., 794 N.E.2d 555 (Ind. Ct. App.
2003), trans. not sought, the defendants urge that a conflict exists in the case law as to whether
the trial court can consider late-filed affidavits, and they assert that "[u]nder the circumstances in
this case it would be appropriate for the Court to do so." Appellee's and Cross-Appellant's Br. at
9.
Trial Rule 56(C) provides that a party opposing a motion for summary judgment has
thirty days to serve a response or any other opposing affidavits. We acknowledge that prior case
law has been somewhat inconsistent regarding the authority of a trial judge to consider affidavits
filed after the thirty-day deadline in Rule 56(C). Compare, e.g. Thayer v. Gohil, 740 N.E.2d
1266, 1269 (Ind. Ct. App. 2001), trans. denied; Markley Enters., Inc. v. Grover, 716 N.E.2d 559,
563 (Ind. Ct. App. 1999), trans. not sought; Morton v. Moss, 694 N.E.2d 1148, 1151-52 (Ind. Ct.
App. 1998), trans. not sought; Brown v. Banta, 682 N.E.2d 582, 585 (Ind. Ct. App. 1997), trans.
denied; Seufert v. RWB Medical Income Properties I Ltd. Partnership, 649 N.E.2d 1070, 1073
(Ind. Ct. App. 1995), trans. not sought (cases requiring adverse party to file within thirty days
any opposing affidavits and materials or seek extension of time within which to file same); with
JSV, 794 N.E.2d at 558; Farm Credit Servs. v. Tucker, 792 N.E.2d 565, 569 (Ind. Ct. App.
2003), trans. not sought. This inconsistency was recently addressed by the Court of Appeals in
Desai v. Croy, 805 N.E.2d 844, 849 (Ind. Ct. App. 2004), trans. denied, which found that the
rule precluding late filing had been more consistently followed and provided a bright line rule.
The Desai court concluded that:
[W]here a nonmoving party fails to respond within thirty days by either (1) filing affida-
vits showing issues of material fact, (2) filing his own affidavit under Rule 56(F) indicat-
ing why the facts necessary to justify his opposition are unavailable, or (3) requesting an
extension of time in which to file his response under 56(I), the trial court lacks discretion
to permit that party to thereafter file a response. In other words, a trial court may exer-
cise discretion and alter time limits under 56(I) only if the nonmoving party has re-
sponded or sought an extension within thirty days from the date the moving party filed
for summary judgment.
Id. at 850. Any residual uncertainty was resolved in 2005 when we cited Desai with approval
and declared:
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When a nonmoving party fails to respond to a motion for summary judgment within 30
days by either filing a response, requesting a continuance under Trial Rule 56(I), or filing
an affidavit under Trial Rule 56(F), the trial court cannot consider summary judgment
filings of that party subsequent to the 30-day period.
Borsuk v. Town of St. John, 820 N.E.2d 118, 124 n.5 (Ind. 2005). In Borsuk, the party opposing
judgment filed an affidavit approximately sixty days after the filing of the motion, and we held
that, since the affidavit was untimely filed, the trial court improperly considered it in determining
summary judgment. Id.
In view of the facts and circumstances of this case, the express provisions of Rule 56, and
the well-developed caselaw interpreting and applying it, we conclude that the trial court did not
err in refusing to consider the defendants' affidavit—their only factual basis for opposing sum-
mary judgment—filed on the day of the hearing thirteen months after the filing of the plaintiff's
motion for summary judgment.
Conclusion
The defendants do not dispute the plaintiff's claim that the defendants' motion to correct
error challenging the grant of summary judgment was deemed denied pursuant to T.R. 53.3(A),
but the defendants correctly assert that they are entitled to challenge by cross-appeal the sum-
mary judgment entered without consideration of the defendants' untimely opposing affidavit.
Considering that claim, we conclude that the trial court correctly excluded the untimely affidavit,
and we affirm the grant of the plaintiff's motion for summary judgment and remand for entry of
judgment consistent with this opinion.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
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