FOR PUBLICATION                                                                                   Nov 05 2013, 5:50 am




ATTORNEYS FOR APPELLANT:                                  ATTORNEY FOR APPELLEES:

HANNAH L. THOMPSON                                        MICHAEL L. EINTERZ, JR.
MATTHEW DERRINGER                                         Einterz & Einterz
RONALD E. WELDY1                                          Zionsville, Indiana
Weldy & Associates
Indianapolis, Indiana




                                IN THE
                      COURT OF APPEALS OF INDIANA

ANTHONY E. BOYD,                                          )
                                                          )
        Appellant-Plaintiff,                              )
                                                          )
                vs.                                       )        No. 49A05-1303-PL-107
                                                          )
WHTIV, INC. and WALTER TARR, IV,                          )
                                                          )
        Appellees-Defendants.                             )


                       APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Timothy W. Oakes, Judge
                            The Honorable Caryl F. Dill, Magistrate
                              Cause No. 49D13-1209-PL-35995


                                           November 5, 2013

                                 OPINION - FOR PUBLICATION

KIRSCH, Judge

        1
          We note that attorney Ronald E. Weldy (“Weldy”) filed the Notice of Appeal and Appellant’s Brief
in this matter. Pursuant to a subsequently-issued Indiana Supreme Court Order published July 23, 2013 (“July
23 order”), Weldy was suspended from the practice of law for 180 days total, with 90 days to be actively
served and the rest stayed subject to probation, effective August 16, 2013. Appellant’s Reply Brief initially
reflected that service was made and the Reply Brief was filed on August 16, and Employer filed a Motion to
Strike the Reply Brief. Thereafter, Boyd filed a Motion to Correct Scrivener’s Error, indicating the Reply
Brief was served and filed on August 15, prior to Weldy’s suspension. On October 3, 2013 we granted Boyd’s
Motion to Correct Scrivener’s Error and denied Employer’s Motion to Strike the Reply Brief.
       After the trial court denied Anthony E. Boyd’s (“Boyd”) motion for an extension of

time to respond to the summary judgment motion filed by defendants WHTIV, Inc. and

Walter Tarr, IV (collectively “Employer”), and it thereafter granted Employer’s summary

judgment motion, Boyd filed a motion to correct error, which the trial court denied. He now

appeals, raising two issues that we restate as:

       I.     Whether the trial court erred when it determined that Indiana Trial Rule
              6(E), which extends by three days the deadline to respond following
              service by United States mail, did not apply to summary judgment
              proceedings and Boyd’s motion for extension of time to respond to
              Employer’s summary judgment motion therefore was not timely filed;
              and

       II.    Whether Boyd is entitled to appellate attorney fees relative to
              Employer’s Motion for Involuntary Dismissal of Appeal.

       We reverse and remand.

                       FACTS AND PROCEDURAL HISTORY

       In September 2012, Boyd filed a complaint against Employer for actual and statutory

damages pursuant to the Fair Labor Standards Act and the Minimum Wage Act, alleging

that Employer failed to pay him overtime premiums during his employment. On November

7, 2012, Employer filed a motion for summary judgment, and it served Boyd with the

motion by United States mail. Thirty-three days later, on December 10, 2012, Boyd filed a

Motion to Extend Opposition to Defendants’ Motion for Summary Judgment, in which he

sought additional time to respond to the summary judgment motion in order to review and

complete discovery concerning Employer’s motion and Boyd’s response thereto, as well as

determine the appropriateness of filing his own cross-motion for summary judgment.


                                              2
Employer objected to this request for additional time to respond, asserting that because Boyd

did not respond or request additional time within thirty days, i.e. by December 7, his request

was not timely, and his motion must be denied. On December 14, the trial court denied

Boyd’s motion for extension of time, and it also granted Employer’s motion for summary

judgment.

       Thereafter, Boyd filed a motion to correct error, asserting that his December 10

request for additional time to respond to the summary judgment motion was timely because

Indiana Trial Rule 6(E) extended by three days the deadline to respond since the November

7 motion for summary judgment was served upon him by mail. The trial court denied

Boyd’s motion to correct error, stating: “Motion to correct error denied. Motion for

extension of time was untimely.” Appellant’s App. at 5. He now appeals.

                            DISCUSSION AND DECISION

       Boyd appeals from the denial of his motion to correct error. Rulings on motions to

correct error are typically reviewable under an abuse of discretion standard; however we

review the matter de novo when the issue on appeal is purely a question of law. State v.

Gonzalez-Vazquez, 984 N.E.2d 704, 706 (Ind. Ct. App. 2013) (citing Ind. Bureau of Motor

Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind. Ct. App. 2009)), trans. denied. In this case,

as in Gonzales-Vazquez,

       The motion to correct error ultimately relates back to whether the trial court
       should consider [Boyd’s] response to be timely pursuant to Trial Rule 56 and
       Trial Rule 6(E). There is no dispute concerning the dates of service or any of
       the parties’ motions. Accordingly, a legal issue is presented.

984 N.E.2d at 706.

                                              3
              I.      Timeliness of Boyd’s Request for Extension of Time

       This appeal presents the question of whether Indiana Trial Rule 6(E) extends the date

by which the non-movant must respond to a summary judgment motion or request an

extension of time to respond. Employer’s position is that any motion for extension of time

to respond to a motion for summary judgment must comply with the thirty-day deadline

provided in Indiana Trial Rule 56(F) or Trial Rule 56(I) and that the three-day extension of

time provided by Trial Rule 6(E) does not apply. Upon review of the relevant statutes and

recent case law, we disagree.

       Initially, we begin with Indiana Trial Rule 56(C) and observe that it states, in

pertinent part, “An adverse party shall have thirty (30) days after service of the motion to

serve a response and any opposing affidavits.” (Emphasis added.) By its terms, Trial Rule

56(C) recognizes that the response time is not thirty days from the date of the filing of the

motion; rather, it is thirty days from the date of service on the recipient. Likewise, our trial

rules specifically provide for additional time for service by mail. Trial Rule 6(E) states:

       Whenever a party has the right or is required to do some act or take some
       proceedings within a prescribed period after the service of a notice or other
       paper upon him and the notice or paper is served upon him by United States
       mail, three [3] days shall be added to the prescribed period.

Indeed, a review of Indiana case law reveals that Trial Rule 6(E)’s three-day extension of

time is permitted and calculated into the required response time for summary judgment

motions. For instance, in City of Mishawaka v. Kvale, 810 N.E.2d 1129 (Ind. Ct. App.

2004), we recognized,



                                               4
       [B]ecause the Estate served its motion for summary judgment via mail, City
       had an additional three days to respond. See T.R. 6(E). Because City’s
       response and designation of evidence was filed after the thirty-three days had
       expired, the trial court did not abuse its discretion by striking City’s response
       and designated materials.

Id. at 1134. Similarly, in Starks Mech., Inc. v. New Albany-Floyd Cnty. Consol. Sch. Corp.,

854 N.E.2d 936 (Ind. Ct. App. 2006), we recognized,

       Indiana Trial Rule 56(C) provides that the nonmovant has thirty days after
       being served with a motion for summary judgment to serve a response and any
       opposing affidavits. Trial Rule 6(E) provides that when a motion is served by
       mail, an additional three days shall be added to the prescribed period.

Id. at 939.

       Nevertheless, here, Employer asserts that the three-day extension granted by Trial

Rule 6(E) does not apply to Trial Rule 56 motions for summary judgment because Trial

Rule 56 exclusively controls the timing of summary judgment proceedings. In support of

this position, Employer relies on this court’s decision in DeLage Landen Financial Services,

Inc. v. Community Mental Health Center, 965 N.E.2d 693 (Ind. Ct. App. 2012), trans.

denied. There, DeLage, a lessor of copy machines, moved for summary judgment on its

complaint against lessee Community Mental Health Center (“CMHC”). DeLage’s motion

for summary judgment was filed on March 15, 2011. On May 27, 2011, CMHC, the non-

movant, moved for enlargement of time to respond pursuant to Indiana Trial Rule 6(B)(2),

which allows a trial court to permit an act to be done after the expiration of the time period

if the failure to act was the result of excusable neglect, namely to be an inexperienced




                                              5
employee who did not properly schedule the due date for the response.2 The trial court in

DeLage allowed CMHC’s belated response and denied DeLage’s motion for summary

judgment, and DeLage appealed.

        In its analysis, the DeLage court examined our Supreme Court’s decision in HomEq

Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008), where the court 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.

DeLage, 965 N.E.2d at 697. As the DeLage court noted, however, the non-movant in

HomeEq never requested an enlargement of time under Indiana Trial Rules, whereas CMHC

did request an enlargement under Trial Rule 6(B)(2). The DeLage court thus focused on the

conflict, if any, between Trial Rule 56(I), which states that “for cause found, the Court may

alter any time limit set forth in this rule upon motion made within the applicable time limit”

and the extension of time provision of Trial Rule 6(B)(2). The DeLage court ultimately

determined that Trial Rule 6(B)(2) does not apply to summary judgment materials, and

CMHC’s belated response should not have been permitted. DeLage, 965 N.E.2d at 698.




        2
          Indiana Trial Rule 6(B)(2) provides: “When an act is required or allowed to be done at or within a
specific time by these rules, the court may at any time for cause shown: . . .upon motion made after the
expiration of the specific period, permit the act to be done where the failure to act was the result of excusable
neglect; but, the court may not extend the time for taking any action for judgment on the evidence under Rule
50(A), amendment of findings and judgment under Rule 52(B), to correct errors under Rule 59(C), statement
in opposition to motion to correct error under Rule 59(E), or to obtain relief from final judgment under Rule
60(B), except to the extent and under the conditions stated in those rules.”


                                                       6
       One year later, this court in Gonzales-Vazquez addressed the scope of the DeLage

decision in a factual context strikingly similar to the one we face today. There, in post-

conviction proceedings, Vazquez filed a motion for summary judgment on July 17, 2012.

The motion was served on the State by certified mail. On August 20, 2012, the State filed a

request for an extension of time in which to file a response to the motion for summary

judgment. The trial court granted the State’s request, the State thereafter filed a response on

August 24, and Vazquez’s motion for summary judgment was denied. Vazquez filed a

motion for reconsideration arguing that the State’s August 20 request for enlargement of

time and its subsequent response were both untimely. Like Employer in the present case,

Vazquez, relying upon DeLage, argued that Trial Rule 56 exclusively controls timing of

summary judgment filings. The post-conviction court agreed with Vazquez and concluded

that the State had failed to request an enlargement of time within thirty days as provided by

Trial Rule 56(I) and that no days could be added to the thirty-day period due to mail service;

it struck the State’s response and it granted Vazquez’s motion for summary judgment.

       The State filed a motion to correct error, contending that its motion for enlargement

of time, which was filed thirty-four days after the summary judgment motion, was timely

because the State was entitled to add three days for mail service and the thirty-third day had

fallen on a Sunday. The post-conviction court rejected that argument. The State appealed.

       In our Gonzalez-Vazquez decision, we determined that, to the extent that the post-

conviction court had understood DeLage to mean that no provision of Trial Rule 6 could be

applicable in summary judgment proceedings, the post-conviction court had interpreted the


                                               7
import of DeLage “too broadly.” Gonzalez-Vazquez, 984 N.E.2d at 707. Indeed, as the

Gonzalez-Vazquez court noted, the DeLage court had referred to and relied upon Trial Rule

6(E):

        On March 15, 2011 [DeLage] filed a motion for summary judgment and
        designation of evidence. Pursuant to Trial Rule 56(C), CMHC had thirty days
        – or until April 18, 2011 including the three-day extension for service by mail
        – to file a response.

Id. at 708 (quoting DeLage, 965 N.E.2d at 695 and adding emphasis). The DeLage court

footnoted Trial Rule 6(E) as the source of the permitted three-day extension. DeLage, 965

N.E.2d at 695 n.1. The Gonzalez-Vazquez court concluded that the post-conviction court

erred as a matter of law when it excluded the State’s request for an extension of time as

being untimely, and it reversed the grant of summary judgment in favor of Vazquez.

Gonzalez-Vazquez, 984 N.E.2d at 708.

            Gonzalez-Vazquez – which Employer neither distinguishes nor cites to – guides our

decision today, and we hold that the three-day extension of time provided by Trial Rule 6(E)

applies in the context of Boyd’s request for an extension of time to respond to Employer’s

motion for summary judgment. Consequently, as applied here, Boyd’s request for extension

of time to respond was not untimely, and the trial court should not have denied his motion to

correct error.3 See id. (reversing trial court’s denial of State’s motion to correct error).




        3
           As stated, the trial court’s order denying the motion to correct error reflected that the denial was
based upon the fact that the request for an extension of time was not timely filed. Appellant’s App. at 5.
However, to the extent that the trial court’s denial of Boyd’s motion for enlargement of time was based on the
merits of the motion, the trial court abused its discretion; the civil proceedings had just recently commenced,
discovery had timely begun, and the request for more time was reasonable under the circumstances.

                                                      8
        Further, Boyd argues, and we agree, that because he sought, but was denied,

additional time to complete discovery, the trial court’s grant of summary judgment in

Employer’s favor was premature. As we have recognized, summary judgment proceedings

are not substitutes for trials on the merits and motions for summary judgment should only be

granted where the parties have adequate time to complete discovery. Collins v. HSBC Bank

USA, Nat’l Ass’n, 974 N.E.2d 537, 541 (Ind. Ct. App. 2012) (recognizing that trial courts

generally will not grant summary judgment when there are pending discovery requests that

might impact court’s ability to decide motion). Accordingly, we reverse both the trial

court’s denial of Boyd’s motion to correct error and its grant of summary judgment in

Employer’s favor. Gonzales-Vazquez, 984 N.E.2d at 708.

                                        II.     Attorney Fees

        Lastly, we address Boyd’s pending Verified Motion for Appellant Fees (“verified

motion”), in which Boyd seeks to recover attorney’s fees incurred in opposing Employer’s

Motion for Involuntary Dismissal of Appeal (“motion for dismissal”) ,4 which this court

ultimately denied. A brief procedural backdrop is warranted.

        After Boyd filed his notice of appeal with this court, Employer filed the motion for

dismissal, asserting that Boyd had failed to timely file a motion to correct error with the trial

court, and because that motion was not timely, his notice of appeal likewise was not timely,

and his appeal should be dismissed. Specifically, Employer explained, judgment was



        4
           We note that Employer’s motion for dismissal was not initially accepted for filing because it was
defective for failing to file the required number of copies. Upon Notice of Defect from the Clerk, Employer
filed the appropriate number of copies of his motion.

                                                     9
entered in this case on December 14, 2012, and Boyd “attempted to file” a motion to correct

error on January 14, 2013, thirty-one days later, but, Employer maintained, Boyd was

required to file his notice of appeal or motion to correct error no later than January 13, 2013.

Boyd filed a response to Employer’s motion for dismissal, advising that January 13, 2013

was a Sunday, and thus his motion filed on January 14, 2013 was timely pursuant to Indiana

Trial Rule 6(A) and further claiming that Employer’s motion for dismissal was frivolous.

This court denied Employer’s motion for dismissal.

       Following our denial of Employer’s motion for dismissal, Boyd filed the verified

motion pursuant to Indiana Appellate Rule 66, arguing that given Indiana Trial Rule 6(A)’s

directive that a party is given another day to file a pleading if the deadline falls on a Sunday,

Employer’s motion for dismissal “intentionally ignored the Trial Rules” and was “void of all

plausibility,” and Boyd asked this court to order Employer to pay $1,575 incurred in

reviewing the motion for dismissal, communicating with Employer’s counsel to seek a

voluntary withdrawal of the motion, drafting a response to the motion, and drafting the

verified motion. Employer responded and opposed the verified motion. This court ordered

that the motion for attorney fees was to be held in abeyance for later determination by the

writing panel.

       Indiana Appellate Rule 66(E) provides in part that this court “may assess damages if

an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in

the Court’s discretion and may include attorneys’ fees.” Ballaban v. Bloomington Jewish

Cmty., Inc., 982 N.E.2d 329, 339 (Ind. Ct. App. 2013). Our discretion is limited to instances


                                               10
of “meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” Id.

A strong showing is required to justify an award of appellate damages and the sanction is

not imposed to punish mere lack of merit but something more egregious. Harness v.

Schmitt, 924 N.E.2d 162, 168 (Ind. Ct. App. 2010). Upon review, we find that Employer’s

motion for dismissal fits more into the former “lack of merit” category than into the latter

“something more egregious” one.

        The crux of Employer’s motion for dismissal was that Boyd’s motion to correct error

was not timely filed because the time requirements of Trial Rule 59 were not subject to

automatic extension by operation of Trial Rule 6, and consequently, Boyd’s notice of appeal

was not timely filed. Employer’s motion for dismissal thus presented a legal argument,

supported by cogent argument and citation. Although we ultimately did not accept

Employer’s position and denied his motion for dismissal, we are not persuaded that the

motion for dismissal was permeated with vexatiousness or harassment sufficient to support

an award of fees under Appellate Rule 66(A). We thus deny Boyd’s verified motion for

fees.

        Reversed and remanded for further proceedings.

ROBB, C.J., and RILEY, J., concur.




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