MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Apr 17 2017, 5:34 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Daniel A. Medrea                                          Stephen M. Maish
Lucas, Holcomb & Medrea                                   Maish & Mysliwy
Merrillville, Indiana                                     Hammond, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rueth Development Company                                 April 17, 2017
and Rueth Development                                     Court of Appeals Case No.
Company d/b/a Superior                                    45A03-1608-CP-1821
Lumber Company,                                           Appeal from the Lake Superior
Appellant-Plaintiff,                                      Court
                                                          The Honorable John M. Sedia,
        v.                                                Judge
                                                          Trial Court Cause No.
H & H Rueth, Inc.,                                        45D01-9209-CP-1103
Appellee-Defendant.




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CP-1821 | April 17, 2017           Page 1 of 6
                                           Case Summary
[1]   On September 11, 1992, Appellant-Plaintiff Rueth Development Company and

      Rueth Development d/b/a Superior Lumber Company (“RDC”) filed a

      complaint against Appellee-Defendant H&H Rueth, Inc. (“H&H”) alleging that

      H&H owed RDC money. Prior to trial, the parties entered into a written

      release and settlement agreement. RDC, however, did not dismiss the case per

      the agreement, prompting H&H to file a motion for summary judgment. RDC

      never filed a response to the motion. After a hearing on August 10, 1995, the

      trial court took the motion under advisement. The trial court, however,

      ultimately failed to rule on H&H’s motion.


[2]   RDC did not file a response to the motion until April of 2016. A hearing was

      held on H&H’s motion for summary judgment in July of 2016. The trial court

      again took the motion under advisement. On July 13, 2016, the trial court

      issued an order granting H&H’s motion for summary judgment. The trial court

      also found that it could not consider any of RDC’s untimely materials filed in

      response to the motion.


[3]   On appeal, the parties raise the following restated issue: whether the trial court

      correctly found that H&H was entitled to summary judgment based upon its

      1995 motion for summary judgment and the documents H&H filed with said

      motion. Because the trial court correctly found that RDC’s untimely response

      and corresponding documents could not be considered, we affirm the trial

      court’s order granting summary judgment in favor of H&H.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CP-1821 | April 17, 2017   Page 2 of 6
                            Facts and Procedural History
[4]   On September 11, 1992, RDC initiated this case by filing a complaint against

      H&H alleging that H&H owed RDC various amounts for building materials

      and residential lots purchased from RDC. After obtaining additional time to

      plead, H&H filed a timely answer on October 29, 1992. The case was

      scheduled for a three-day jury trial in June of 1995. On or about May 18, 1995,

      the parties entered into a written release and final settlement agreement to fully

      resolve the case. RDC, however, failed to dismiss the case with prejudice as the

      settlement agreement required. In response, H & H filed a verified summary

      judgment motion and to vacate the scheduled trial date.


[5]   On June 2, 1995, the trial court entered an order that vacated the three-day jury

      trial and set H&H’s summary judgment motion for hearing on August 10, 1995.

      RDC requested an extension of time to respond to H&H’s summary judgment

      motion in a motion for expedited hearing and extension of time filed on June

      19, 1995. The trial court granted the motion and extended RDC’s time to

      respond to July 14, 1995.


[6]   On July 19, 1995, RDC filed a second motion for extension of time. The trial

      court granted the request giving RDC until August 10, 1995, despite the fact

      that the first extension expired on July 14, 1995. On July 28, 1995 and August

      2, 1995, H&H filed objections to the second motion for an extension.


[7]   According to a transcript, a hearing was held on August 10, 1995, to discuss the

      summary judgment motion. During the hearing, RDC indicated that it would

      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CP-1821 | April 17, 2017   Page 3 of 6
      be filing a response, but there is no record of such response ever being filed.

      H&H also objected to the filing of any untimely response to its motion. At the

      conclusion of the hearing, the trial court took H&H’s summary judgment

      motion under advisement.1 According to the chronological case summary, the

      motion was never ruled on by the then-presiding judge, Special Judge Daniel J.

      Molter. The docket also shows that no response was ever filed by RDC.


[8]   On October 29, 2015, Judge John M. Sedia, the current presiding judge, set a

      hearing for February 19, 2016, on the response issue relating to H&H’s

      summary judgment motion. On February 19, 2016, H&H filed a trial brief and

      related documents to address the response issue. The February 19, 2016,

      hearing was continued to June 17, 2016.


[9]   On April 1, 2016, RDC filed various documents. H & H filed its reply to

      RDC’s documents on April 11, 2016. The trial court judge then continued the

      June 17, 2016 hearing date to July 12, 2016. The hearing was held on July 12,

      2016. On July 13, 2016, the trial court entered an order granting H&H’s

      summary judgment motion.



                                   Discussion and Decision




      1
        Although the court failed to rule upon the summary judgment motion for over twenty years until the
      current judge set it for hearing, neither party filed a “lazy judge” motion pursuant to Indiana Trial Rule 53.1
      (1994).

      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CP-1821 | April 17, 2017                Page 4 of 6
[10]   RDC appeals the trial court’s order granting summary judgment to H & H.

       “We first observe that a trial court’s order granting summary judgment comes

       to us ‘cloaked with a presumption of validity.’” DiMaggio v. Rosario, 52 N.E.2d

       896, 903 (Ind. Ct. App. 2016) (internal citations omitted). Our Supreme Court

       has set forth the following standard of review:


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of ... the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “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. (internal citations omitted).

       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). However, we will affirm

       the “trial court’s entry of summary judgment if it can be sustained on any

       theory or basis in the record.” DiMaggio, 52 N.E.3d at 904.


[11]   RDC did not file a timely response to H & H’s motion despite receiving two

       extensions. In fact, RDC did not respond to H & H’s motion for summary

       judgment for over twenty years. After the trial court held a hearing on July 12,

       2016, it declined to consider RDC’s untimely filed response and corresponding

       documents and granted H&H’s motion for summary judgment.


[12]   Pursuant to Indiana Trial Rule 56(c), a party opposing a motion for summary

       judgment has thirty days to serve a response or any other opposing affidavits.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CP-1821 | April 17, 2017   Page 5 of 6
               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) (emphasis

       added). In Borsuk, our Supreme Court held that sixty days was untimely for a

       party to file an affidavit opposing a summary judgment motion and it could not

       be considered when determining summary judgment. Id. Consequently, it is

       not a stretch to say that a response and the corresponding documents filed over

       twenty years late are extremely untimely and the trial court did not err when it

       determined that it could not consider such materials.



[13]   RDC asserts that even if it did not submit an “opposing affidavit or other

       evidence to contradict H&H’s motion, H&H was not entitled to summary

       judgment.” Corrected Appellant’s Br. p. 37. Because its response and

       supporting documents could not be considered by the trial court, RDC has not

       provided a factual basis for opposing summary judgment and it has not met its

       burden of establishing the existence of a genuine issue of material fact that

       would preclude summary judgment.


[14]   We affirm the trial court’s order granting summary judgment in favor of H&H.


       Vaidik, C.J., and Brown, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-CP-1821 | April 17, 2017   Page 6 of 6
