Indiana Court of Appeals: Failure to Respond to Cross-Motion for Summary Judgment Not Necessarily Fatal

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by: Colin E. Flora

     This week’s discussion is a bit more technical than most of our prior posts, but it is an important issue nonetheless. Today, we look to the recent decision Quirk v. Delaware County, Indiana from the Court of Appeals of Indiana. The issue was whether Indiana’s summary judgment procedure mandated a grant of summary judgment on a cross-claim because the other party failed to file a response within the thirty-day period required by Ind. Trial Rule 56(C).

     Because this post is focused to practitioners we will withhold going into an overview of what is summary judgment. For that, consider our prior post Indiana Court Explains Meaningful Difference Between State & Federal Summary Judgment Standard.

     If there is one thing Indiana litigators should know about Trial Rule 56(C), it is that the thirty-day response deadline is a hard-and-fast rule. Failure to designate evidence in response within thirty days or to obtain an extension from the court can be fatal to a case. As the Indiana Supreme Court has stated:

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.

     Quirk, however, posed an interesting wrinkle to that analysis: what happens when one party has already filed a motion for summary judgment, designating evidence in support, but then fails to file a timely response to a subsequent cross-motion for summary judgment? The answer is fairly simple, and largely what you might expect. Importantly, the thirty-day rule requires a party to place all contrary evidence upon which it seeks to rely into the record in that span, it does not, however, foreclose argument on the evidence that has been submitted. As the Court of Appeals wrote:

An “adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.” T.R. 56(C). If opposing the motion, the adverse party is to “designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for the purposes of the motion.” When a non-moving party does not respond to a summary judgment motion within thirty days, the trial court cannot consider summary judgment filings that party subsequently makes. While a party who does not respond to a motion for summary judgment may be limited to the facts established by the movant’s submissions, such failure to respond does not preclude argument of the relevant law on appeal.

Of course, that quote says “on appeal,” but there would be no sense in requiring the litigant to stand silent in the trial court but get to make the exact same arguments on appeal.

     And the key to the failure to provide contrary evidence is the fact that a party does not win summary judgment simply because it is unopposed:

A trial court is not required to grant an unopposed motion for summary judgment; summary judgment is awarded on the merits of the motion, not on technicalities. See also Ind. Trial Rule 56(C) (“[s]ummary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits of evidence, but the court shall make its determination from the evidentiary matter designated to the court”).

     So that takes us to the unique circumstance of failure to respond to a cross-motion for summary judgment. Inherent in the fact that it is a cross-motion is that summary judgment has already been sought, which means evidence was likely designated in support of that motion. The court found that there is no need to re-designate the same evidence, it gets to be used in opposition to the cross-motion as well:

Quirk’s assertion that Delaware needed to respond to his summary judgment motion to re-designate the same evidence and to advance the same arguments that were provided in Delaware’s original motion for summary judgment is not supported by Reiswerg[ v. Statom] or any other law we found.

     Of course, that will not always be a salve to the wound created by failing to timely file a response. It is entirely possible that the cross-motion is wholly unrelated or includes evidence well beyond what was initially designated, in which case even having the evidence from the initial motion for summary judgment will do little to stave off defeat on the cross-motion. The best practice, of course, is to timely file an response and designate all contrary evidence.

     Join us again next time for further discussion of developments in the law.


*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.

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