MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                          Mar 06 2015, 9:48 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT
Robert G. Grant
T. Blake Orner
Grant & Grant
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Allstate Insurance Company as                            March 6, 2015
Subrogee of Elaine Weiman,                               Court of Appeals Case No.
                                                         49A04-1408-CT-389
Appellant-Plaintiff,
                                                         Appeal from the Marion County
        v.                                               Superior Court; The Honorable
                                                         Robert R. Altice, Jr., Judge;
                                                         49D05-1301-CT-3140
Cleve W. Hatfield, and
Michael W. Hatfield,
Appellees-Defendants.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-389 | March 6, 2015         Page 1 of 6
[1]   Allstate appeals the denial of its motion to strike and motion for summary

      judgment. The trial court’s denial of the motion to strike violated Indiana Trial

      Rule 56(C) and, without the document that should have been stricken, there

      existed no genuine issue of material fact to prevent entry of summary judgment

      for Allstate.


[2]   We reverse and remand.


                                     Facts and Procedural History
[3]   On March 7, 2012, Cleve Hatfield and Elaine Weiman were involved in an

      automobile accident that injured Weiman. Allstate was Weiman’s insurer, and

      it paid her $10,000 for medical expenses pursuant to her policy provisions.


[4]   On January 25, 2013, Allstate, as subrogee of Weiman, sued Cleve Hatfield and

      Michael Hatfield.1 After a series of extensions and failure to comply with

      Allstate’s discovery requests, the trial court issued an order for sanctions on

      January 31, 2014, against Cleve2 for failure to comply with Allstate’s discovery

      requests and declared Cleve at fault for the accident.


[5]   On May 23, 2014, Allstate filed a motion for summary judgment. On June 27,

      2014, Cleve filed his response and motion to strike an affidavit Allstate

      designated in its motion for summary judgment. On July 7, 2014, Allstate




      1
          Cleve was the driver of the vehicle involved in the accident, and Michael owned it.
      2
       It is not clear from the record why Cleve is the only named party in this appeal and in all court rulings
      subsequent to the Order for Sanctions.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-389 | March 6, 2015                  Page 2 of 6
      moved to strike Cleve’s response because it was not filed within the thirty day

      time limit required by T.R. 56(C). On July 8, the trial court denied Allstate’s

      motion for summary judgment by jacket entry stating, “Court receives and

      reviews defendant’s response to motion to [sic] Summary judgment and motion

      to strike. The Court now hereby denies plaintiff’s motion for summary

      judgment regarding damages as there are genuine issues of material [sic]. The

      Court denies [Cleve’s] motion to strike.” (App. at 7.) The next day the trial

      court denied Allstate’s motion to strike.


[6]   The trial court granted Allstate’s motion to certify the matter for interlocutory

      appeal pursuant to Indiana Appellate Rule 14(B)(1) and we accepted

      jurisdiction.


                                     Discussion and Decision
[7]   We first note Cleve did not file a brief. When an appellee does not submit a

      brief, we do not undertake the burden of developing arguments for that party.

      Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead, we

      apply a less stringent standard of review and may reverse if the appellant

      establishes prima facie error. Id. Prima facie error is “error at first sight, on first

      appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216,

      221 (Ind. Ct. App. 2006).


                                          1.       Motion to Strike

[8]   We review a decision regarding a motion to strike for abuse of discretion.

      Halterman v. Adams Cty. Bd. of Com’rs, 991 N.E.2d 987, 990 (Ind. Ct. App. 2013).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-389 | March 6, 2015   Page 3 of 6
       An abuse of discretion occurs when the trial court’s decision is clearly against

       the logic and effect of the facts and circumstances before it. Id.


[9]    T.R. 56(C) states a party opposing summary judgment “shall have thirty (30)

       days after service of the motion to serve a response and any opposing

       affidavits.” If the non-moving party does not 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.” HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind.

       2008).


[10]   Allstate filed its motion for summary judgment on May 23, 2014. Cleve did not

       respond until thirty-five days later, nor did he file for an extension of time.

       Allstate moved to strike Cleve’s response as not timely filed. Allstate has

       demonstrated prima facie error on appeal because Cleve did not file his response

       to Allstate’s motion for summary judgment within thirty days as required by

       T.R. 56(C). Therefore, we reverse the denial of Allstate’s motion to strike.


                                         2.      Summary Judgment

[11]   We review summary judgment de novo, applying the same standard as the trial

       court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Drawing all

       reasonable inferences in favor of the non-moving party, we will find summary

       judgment appropriate if the designated evidence shows there is no genuine issue

       as to any material fact and the moving party is entitled to judgment as a matter

       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-389 | March 6, 2015   Page 4 of 6
       of law. Id. A fact is material if its resolution would affect the outcome of the

       case, and an issue is genuine if a trier of fact is required to resolve the parties’

       differing accounts of the truth, or if the undisputed material facts support

       conflicting reasonable inferences. Id.


[12]   The initial burden is on the summary-judgment movant to demonstrate there is

       no genuine issue of fact as to a determinative issue, at which point the burden

       shifts to the non-movant to come forward with evidence showing there is an

       issue for the trier of fact. Id. While the non-moving party has the burden on

       appeal of persuading us a summary judgment was erroneous, we carefully

       assess the trial court’s decision to ensure the non-movant was not improperly

       denied his day in court. Id.


[13]   Allstate claimed Cleve was liable for Weiman’s injuries because he was at fault

       for the vehicle accident, and thus the Hatfields should pay Allstate $10,000.00,

       the amount Allstate paid for Weiman’s medical bills. The trial court found

       Cleve liable for the accident as part of an Order of Sanctions premised on

       Cleve’s failure to comply with Allstate’s discovery requests. Thus, the only

       issue remaining was the amount of damages.


[14]   In its motion for summary judgment, Allstate designated detailed medical

       statements regarding Weiman’s treatment and Allstate’s payment therefor. As

       the trial court should have stricken Cleve’s response to Allstate’s motion for

       summary judgment, the only evidence properly before the trial court was

       Allstate’s evidence of Weiman’s medical expenses. As there was no genuine


       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-389 | March 6, 2015   Page 5 of 6
       issue of material fact, the trial court should have granted Allstate’s motion for

       summary judgment, and we must accordingly reverse.


                                                 Conclusion
[15]   The trial court should have stricken as untimely Cleve’s response to Allstate’s

       motion for summary judgment. Without Cleve’s response, there was no

       genuine issue of material fact, and the trial court should have entered summary

       judgment for Allstate and awarded damages as requested in Allstate’s motion

       for summary judgment. We reverse and remand for proceedings consistent

       with this opinion.


[16]   Reversed and remanded.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-389 | March 6, 2015   Page 6 of 6
