                                                                                       FILED
                                                                                  Feb 17 2020, 9:23 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Curtis T. Hill, Jr.                                        David E. Mosley
      Attorney General of Indiana                                Jeffersonville, Indiana

      Benjamin M. L. Jones
      Deputy Attorney General
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana ex rel. Curtis T.                         February 17, 2020
      Hill, Jr., Attorney General of                             Court of Appeals Case No.
      Indiana,                                                   19A-PL-588
      Appellant-Plaintiff,                                       Appeal from the Crawford Circuit
                                                                 Court
              v.                                                 The Honorable Sabrina R. Bell,
                                                                 Judge
      Tonia Jones-Elliott,                                       Trial Court Cause No.
      Appellee-Defendant.                                        13C01-1711-PL-13




      Najam, Judge.


                                         Statement of the Case
[1]   The State sued Tonia Jones-Elliott, a payroll clerk for Crawford County, for

      having allegedly failed to withhold certain employee insurance contributions

      from her own paychecks. The State moved for summary judgment and

      Court of Appeals of Indiana | Opinion 19A-PL-588 | February 17, 2020                            Page 1 of 10
      designated as evidence admissions that the State had served on Jones-Elliott

      and to which she had not timely responded. After three continuances, Jones-

      Elliott moved for a fourth continuance to respond to the State’s motion for

      summary judgment and to have her admissions withdrawn, but those motions

      were filed with the trial court three days after the court’s deadline to respond to

      the State’s summary judgment motion. Nonetheless, over the State’s

      objections, the trial court granted both of Jones-Elliott’s motions.


[2]   The issue in this appeal is whether the trial court abused its discretion in

      granting Jones-Elliott’s untimely motions. We hold that it did. Our Supreme

      Court has made clear that the Indiana Trial Rules impose a “bright-line rule” in

      summary judgment proceedings such that, even where the summary judgment

      nonmovant is “merely one day late” in serving a response to the summary

      judgment motion, “the trial court ha[s] no discretion to allow [the nonmovant]

      to file [her] response and designated evidence.” Mitchell v. 10th and The Bypass,

      LLC, 3 N.E.3d 967, 972-73 (Ind. 2014) (quoting Starks Mech. Inc. v. New Albany-

      Floyd Cty. Consol. Sch. Corp., 854 N.E.2d 936, 940 (Ind. Ct. App. 2006)).

      Accordingly, we reverse and remand for further proceedings on the State’s

      motion for summary judgment.


                                   Facts and Procedural History
[3]   On November 2, 2017, the State filed its civil complaint against Jones-Elliott.

      In its complaint, the State alleged that Jones-Elliott, a payroll clerk for

      Crawford County, had failed to withhold more than $1,000 in employee


      Court of Appeals of Indiana | Opinion 19A-PL-588 | February 17, 2020          Page 2 of 10
      insurance contributions from her own paychecks. The State further alleged that

      Jones-Elliott’s actions entitled the State to treble damages, costs, and fees.


[4]   After Jones-Elliott filed her answer, the State served her with requests for

      admissions pursuant to Indiana Trial Rule 36. Those requests included the

      following two statements:


              REQUEST NO. 14: As a Payroll Clerk for the County, you
              committed acts of malfeasance, misfeasance, and/or
              nonfeasance.


                                             *        *       *


              REQUEST NO. 15: During the audit period, as Payroll Clerk
              for the County, you misappropriated $1,118.82 in public funds by
              failing to withhold employee contributions from your paycheck
              on 13 occasions.


      Appellant's App. Vol. 2 at 52-53 (bold removed). Jones-Elliott did not respond

      to those requests within thirty days. Accordingly, on March 20, 2018, the State

      filed its notice with the trial court that, pursuant to Rule 36, the requests were

      deemed admitted.


[5]   On July 30, the State moved for summary judgment on its complaint. The

      State designated Jones-Elliott’s failure to respond to the State’s requests for

      admissions as evidence that there were no genuine issues of material fact. And,

      in its brief to the trial court, the State substantially relied on Jones-Elliott’s

      failure to respond to the requests for admissions in asserting that it was entitled

      to judgment as a matter of law.
      Court of Appeals of Indiana | Opinion 19A-PL-588 | February 17, 2020          Page 3 of 10
[6]   Two weeks after the State filed its motion for summary judgment, Jones-Elliott

      moved for an extension of time in the amount of sixty days in which to hire

      new counsel and respond to the State’s motion. The State did not object, and

      the trial court granted the request. Thereafter, the State also moved to continue

      the summary judgment proceedings for an additional thirty days to continue

      settlement negotiations with Jones-Elliott, which request the court granted.

      The court ordered Jones-Elliott to file her response to the State’s summary

      judgment motion by December 1.


[7]   On November 27, Jones-Elliott, now represented by new counsel, moved for a

      third extension of time in which to respond to the State’s summary judgment

      motion. The State again did not object, and the trial court granted the motion.

      The court ordered Jones-Elliott to respond to the State’s motion no later than

      Monday, December 31.


[8]   Jones-Elliott did not respond by or on Monday, December 31. Instead, three

      days later on Thursday, January 3, 2019, Jones-Elliott filed two new motions

      with the trial court. First, Jones-Elliott moved for a fourth extension of the

      deadline for her to respond to the State’s motion for summary judgment.

      According to that motion, Jones-Elliott’s delay in responding to the State’s

      summary judgment motion had been based on “serious good faith efforts by the

      parties to reach a resolution by agreement,” that “there was regular attention to

      this matter by the defense,” including a “follow up” email to the State on

      December 4, 2018, and that the State “did not . . . reply” to that email “until the



      Court of Appeals of Indiana | Opinion 19A-PL-588 | February 17, 2020     Page 4 of 10
       afternoon of December 31. At that time, defense counsel was out of the office

       and remained so until 1-2-2019.” Id. at 188-89.


[9]    Second, Jones-Elliott moved to withdraw her admissions. According to that

       motion, Jones-Elliott had received the requests for admissions “in person and

       answered and delivered them to her attorney prior to the expiration of the time

       for answering said Requests in March of 2018.” Id. at 171. However, her prior

       attorney had failed to submit her answers to the State.


[10]   The State objected to Jones-Elliott’s requests for an additional extension of time

       and to withdraw her admissions. The trial court overruled the State’s

       objections and granted both of Jones-Elliott’s motions. The court then certified

       its orders for interlocutory appeal, which we accepted.


                                       Discussion and Decision
[11]   We review a trial court’s decisions on continuances and discovery for an abuse

       of discretion. E.g., Bedolla v. State, 123 N.E.3d 661, 666 (Ind. 2019); Gibson v.

       State, 43 N.E.3d 231, 236 (Ind. 2015). An abuse of discretion occurs when the

       trial court’s decision is against the logic and effect of the facts and

       circumstances before it. Mitchell, 3 N.E.3d at 970. A trial court also abuses its

       discretion when it misinterprets the law. Id.


[12]   With respect to summary judgment practice, our Supreme Court has said:


               Trial Rule 56 governs motions for summary judgment and
               provides in pertinent part:


       Court of Appeals of Indiana | Opinion 19A-PL-588 | February 17, 2020      Page 5 of 10
                 (C) Motion and proceedings. The motion and any
                 supporting affidavits shall be served in accordance with the
                 provisions of Rule 5. An adverse party shall have thirty
                 (30) days after service of the motion to serve a response
                 and any opposing affidavits. The court may conduct a
                 hearing on the motion. However, upon motion of any
                 party made no later than ten (10) days after the response
                 was filed or was due, the court shall conduct a hearing on
                 the motion which shall be held not less than ten (10) days
                 after the time for filing the response. At the time of filing
                 the motion or response, a party shall 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 purposes of the
                 motion.


        Apart from the text of Rule 56 itself, our case authority has
        established the procedure governing the admissibility of evidence
        that may be considered on a motion for summary judgment. In
        Borsuk v. Town of St. John, 820 N.E.2d 118 (Ind. 2005), we first
        acknowledged a rule prohibiting the consideration of new
        evidence that had not been previously designated within the 30-
        day time limit imposed by Trial Rule 56(C). The trial court in
        that case entered summary judgment in favor of the Town upon
        the landowner’s contention that a rezoning request amounted to
        an unconstitutional taking of the landowner’s property.
        Although affirming the decision of the trial court on grounds that
        there was no taking, we nonetheless addressed a procedural point
        adverse to the Town:


                 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. Since th[e] affidavit

Court of Appeals of Indiana | Opinion 19A-PL-588 | February 17, 2020          Page 6 of 10
                 [submitted by the Town] was untimely filed, the trial court
                 improperly admitted it into evidence. Even further, since
                 the 30-day period lapsed with no filings, the trial court
                 should not have admitted any of the Town’s subsequent
                 briefs or affidavits.


        Id. at 124 n.5 (citing Desai v. Croy, 805 N.E.2d 844, 850 (Ind. Ct.
        App. 2004), trans. denied).


        Three years later, in HomEq Servicing Corp. v. Baker, 883 N.E.2d
        95 (Ind. 2008), the Court acknowledged that “prior case law
        ha[d] been somewhat inconsistent regarding the authority of a
        trial judge to consider affidavits filed after the thirty-day deadline
        in Rule 56(C).” Id. at 98 (citing cases). We noted however that
        “[a]ny residual uncertainty” about the inconsistent case law was
        resolved in Borsuk when, citing Desai with approval, the Court
        declared: “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.” Id. at 98-99 (quoting Borsuk, 820 N.E.2d at 124 n.5). In
        essence, HomEq reaffirmed the bright-line rule first declared in Desai
        which precludes the late filing of responses in opposition to a motion for
        summary judgment. See, e.g., Starks Mech. Inc. v. New Albany-Floyd
        Cnty. Consol. Sch. Corp., 854 N.E.2d 936, 940 (Ind. Ct. App. 2006)
        (noting the “bright-line rule” and declaring, “even though [the
        non-movant] was merely one day late [in serving his response to
        a summary judgment motion], Desai stands for the proposition
        that the trial court had no discretion to allow [the non-movant] to
        file its response and designated evidence”).


        Now firmly entrenched as an article of faith in Indiana law, this
        bright-line rule provides clarity and certainty to an area of the law
        that for too long lacked both. . . .

Court of Appeals of Indiana | Opinion 19A-PL-588 | February 17, 2020            Page 7 of 10
       Id. at 971-73 (footnotes omitted; alterations in original).


[13]   Here, the State filed its motion for summary judgment on July 30, 2018,

       triggering the initial thirty-day deadline for Jones-Elliott’s response. Within

       that initial timeframe, Jones-Elliott filed the first motion for an extension of

       time. The State then filed the second motion, and Jones-Elliott filed the third

       motion, both of which were filed within the extended timeframes. At that

       point, Jones-Elliott had through December 31, 2018, to respond to the State’s

       motion for summary judgment.


[14]   Jones-Elliott did not file her response by that date, nor did she request an

       additional continuance by that date. Again, “[w]hen a nonmoving party fails to

       respond to a motion for summary judgment . . . by either filing a response” or

       by “requesting a continuance” within the established timeframe, “the trial court

       cannot consider summary judgment filings of that party subsequent” to that

       timeframe. Id. (quoting HomEq Servicing Corp., 883 N.E.2d at 98-99).

       Accordingly, the trial court erred as a matter of law when it granted Jones-

       Elliott’s untimely motion to continue the summary judgment proceedings.


[15]   The same analysis holds for the court’s consideration of Jones-Elliott’s motion

       to withdraw her admissions. In Mitchell, our Supreme Court held that,

       “although a trial court may . . . make material modifications to a non-final

       summary judgment order, it must do so based on the timely submitted materials

       already before the court . . . .” 3 N.E.3d at 973 (emphasis added). As the Court

       explained: “To hold otherwise would allow a party to avoid the strict timelines


       Court of Appeals of Indiana | Opinion 19A-PL-588 | February 17, 2020       Page 8 of 10
       for designating evidence under Rule 56 and would resurrect the uncertainty the

       Desai line of cases sought to eliminate.” Id.


[16]   Here, after the deadline to respond to the State’s summary judgment motion

       had already lapsed, Jones-Elliott sought to alter the body of designated evidence

       that had been timely submitted to the trial court by moving the court to

       withdraw her admissions. But our Supreme Court has made clear that

       “material modifications” to the summary judgment record must be “based on

       the timely submitted materials . . . .” Id. To allow Jones-Elliott to make an

       untimely motion to withdraw her admissions would enable litigants to

       circumvent our “firmly entrenched” Rule 56 timeframes. Id. at 973. An

       objection to the designated evidence is a response to the designated evidence.

       Thus, we hold that an objection to designated evidence must be included in a

       timely response and is subject to the same time limitations as any other

       response to designated evidence under Trial Rule 56. Jones-Elliott’s motion to

       withdraw her admissions designated by the State was untimely. Accordingly,

       the trial court erred as a matter of law when it granted her motion to withdraw

       her admissions.


[17]   In sum, we reverse the trial court’s decision to grant Jones-Elliott’s January 3,

       2019, motions to continue the summary judgment proceedings and to withdraw

       her admissions. We remand for further proceedings on the State’s summary

       judgment motion not inconsistent with this opinion.


[18]   Reversed and remanded.


       Court of Appeals of Indiana | Opinion 19A-PL-588 | February 17, 2020       Page 9 of 10
Bailey, J., and May, J., concur.




Court of Appeals of Indiana | Opinion 19A-PL-588 | February 17, 2020   Page 10 of 10
