ROBB, Chief Judge.
DeLage Landen Financial Services ("DLL") filed a complaint for breach of contract against Community Mental Health Center, Inc. ("CMHC"), and subsequently sought summary judgment in its favor. DLL appeals the trial court's denial of its motions to strike CMHC's response to DLL's motion for summary judgment and the trial court's denial of its motion for summary judgment. Concluding the trial court abused its discretion in considering CMHC's late-filed response on
CMHC leased seven copy machines and related accessories pursuant to a written lease agreement with Pitney Bowes Credit Corporation ("Pitney Bowes"). On December 6, 2010, DLL, as assignee-lessor, filed a complaint against CMHC seeking contract damages and other relief. CMHC filed an answer and asserted certain affirmative defenses.
On March 15, 2011, DLL 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
Following the trial court's order denying CMHC an enlargement of time to respond to the motion for summary judgment, DLL filed a motion to strike CMHC's response to summary judgment as untimely and CMHC requested Trial Rule 60(B) relief from the trial court's June 3, 2011, order. On June 24, 2011, the trial court denied DLL's motion to strike, allowing CMHC's response to stand and therefore, effectively granting CMHC's requested Trial Rule 60(B) relief. DLL filed a motion to reconsider the trial court's June 24, 2011, order. The trial court vacated its June 24, 2011, order and set DLL's motion to reconsider for a hearing. Following the hearing, the trial court denied DLL's motion to strike CMHC's response to summary judgment, granted CMHC permission to file its belated response, and denied DLL's motion for summary judgment:
Appellant's Appendix at 7. DLL now appeals. Additional facts will be supplied as necessary.
DLL first contends the trial court erred in granting CMHC's Rule 60(B) motion for relief from the June 3, 2011, order denying an enlargement of time to file its summary judgment response and allowing CMHC to file a belated response to summary judgment.
Indiana Trial Rule 60(B) provides:
The burden is on the movant for relief from judgment to demonstrate that the relief is both necessary and just. In re Paternity of M.W., 949 N.E.2d 839, 842 (Ind.Ct.App.2011). Trial Rule 60(B) "affords relief in extraordinary circumstances which are not the result of any fault or negligence on the part of the movant." Goldsmith v. Jones, 761 N.E.2d 471, 474 (Ind.Ct.App.2002).
Our review of a trial court's grant or denial of a motion for relief from judgment pursuant to Trial Rule 60(B) is limited to determining whether the trial court committed an abuse of discretion. Citimortgage, Inc. v. Barabas, 950 N.E.2d 12, 15 (Ind.Ct.App.2011). A trial court abuses its discretion when its ruling is clearly against the logic and effect of the facts and circumstances before the court. TacCo Falcon Point, Inc. v. Atlantic Ltd. P'ship XII, 937 N.E.2d 1212, 1218 (Ind.Ct.App. 2010).
The propriety of the trial court's grant of relief from judgment ultimately relates back to whether the trial court should consider CMHC's response to DLL's motion for summary judgment. Trial Rule 56 states, in pertinent part:
In Seufert v. RWB Med. Income Props. I Ltd. P'ship, 649 N.E.2d 1070, 1073 (Ind. Ct.App.1995), this court held that a trial court has discretion to order a continuance pursuant to Trial Rule 56(F) or alter time limits pursuant to Trial Rule 56(I) only where the non-movant has responded or
In HomEq, our supreme court considered whether the trial court erred in declining to consider the non-movants' joint affidavit in opposition to summary judgment, filed over one year after the motion for summary judgment. The non-movants argued on appeal that the trial court has discretion to consider late-filed responses and should have done so in this case. Our supreme court acknowledged the then-recent inconsistent authority, but characterized the Desai decision as providing a bright line rule precluding late filing. Id. at 98. The court also stated that "[a]ny residual uncertainty was resolved . . . when we cited Desai with approval" in a 2005 case. Id. (citing Borsuk v. Town of St. John, 820 N.E.2d 118 (Ind.2005)). In Borsuk, the court stated:
820 N.E.2d at 124 n. 5. Pursuant to this authority, DLL argues the trial court had no discretion to grant relief and allow the consideration of CMHC's late-filed response.
CMHC contends that HomEq can be distinguished by its facts and procedural history. In HomEq, the plaintiff filed a motion for summary judgment on April 15, 2004. Although the defendants sought a series of continuances of the summary judgment hearing, at no time within thirty days after service of the motion for summary judgment did they request alteration of the time limits imposed by Trial Rule 56. A summary judgment hearing was ultimately held on May 9, 2005, on which date the defendants filed a joint affidavit in opposition to summary judgment. The trial court declined to consider the affidavit and granted the plaintiff's motion for summary judgment. Our supreme court concluded, based on the rule discussed above, that the trial court did not err in refusing to consider the affidavit and affirmed the grant of summary judgment. HomEq, 883 N.E.2d at 99.
CMHC distinguishes this case from HomEq by noting first, the non-movant in HomEq never requested an enlargement of time under the Indiana Trial Rules whereas CMHC requested an enlargement of time pursuant to Trial Rule 6(B)(2), and second, the affidavit in HomEq was filed thirteen months after the motion for summary judgment (and one year after a response was due) whereas CMHC's materials were submitted approximately two months after DLL's motion for summary judgment (or slightly over one month after they were due).
CMHC argues that, despite the holding in HomEq with respect to Trial Rule 56, Trial Rule 6(B)(2) "on its face allows the trial court discretion to allow an enlargement of time as long as the court finds excusable neglect. . . ." Brief of Appellee at 24. CMHC notes that Trial Rule 56(I) restates Trial Rule 6(B)(1), and that because Trial Rule 56 is not one of the rules specifically exempted from the operation of Trial Rule 6(B)(2), an enlargement of time is allowed.
When trial rules conflict, we apply the principles of statutory construction under which rules are to be construed together and in harmony when possible. Carter-McMahon v. McMahon, 815 N.E.2d 170, 175 (Ind.Ct.App.2004). Thus, when two rules cover the same subject matter and one does so generally where the other does so specifically, the more specific rule prevails. Daugherty v. Robinson Farms, Inc., 858 N.E.2d 192, 197 (Ind.Ct.App.2006), trans. denied. The parties disagree over which rule-Trial Rule 6 or Trial Rule 56-is more specific. We recognize, as CMHC has pointed out, that Trial Rule 56 is not one of the rules Trial Rule 6(B)(2) specifically exempts from its operation. However, none of the rules that are specifically exempted from Trial Rule 6(B)(2) have their own enlargement of time provision and would thus be subject to Trial Rule 6(B)(2) without the exemption. Because Trial Rule 56 has its own enlargement of time provision, which applies only to Trial Rule 56 and is therefore the more specific of the two rules, it does not need to be exempted from Trial Rule 6(B)(2) because it is not subject to Trial Rule 6(B)(2) in the first instance. Thus, the fact that CMHC filed a motion for enlargement of time pursuant to Trial Rule 6(B)(2) and the non-movant in HomEq did not is not a pertinent distinction because Trial Rule 6(B)(2) does not apply to summary judgment materials.
CMHC also points out that the nonmovant in HomEq tried to file its response one year after it was due, whereas CMHC attempted to file its response only approximately one month after it was due. Given that the rule announced in HomEq is not a substantial compliance rule, the length of time that passes between the date a response to a motion for summary judgment is due and the date a response is filed is immaterial. In Thayer v. Gohil, 740 N.E.2d 1266 (Ind.Ct.App.2001), trans. denied, the non-movant timely requested and was granted two extensions of time to respond to a motion for summary judgment. The second extension allowed her until November 29, 1999, to file her response.
Because CMHC failed to file a response or request an extension within the prescribed time, the trial court had no discretion to alter the time limits in Trial Rule 56. CMHC's belated response should have been stricken and the trial court abused its discretion when it granted CMHC relief from its earlier judgment and allowed CMHC's response to be filed and considered on summary judgment.
DLL also contends the trial court erred in denying its motion for summary judgment. We review a trial court's decision to grant or deny summary judgment de novo, standing in the same position as the trial court and considering only the properly designated evidence in evaluating the summary judgment motion. Liberty Country Club v. Landowners, 950 N.E.2d 754, 757 (Ind.Ct.App.2011). A party seeking summary judgment has the burden to make a prima facie showing through its designated evidence that there are no genuine issues of material fact and the party is entitled to judgment as a matter of law. Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 526 (Ind.Ct.App.2004), trans. denied. The non-moving party may not then rest on the allegations of its pleadings to demonstrate the existence of a genuine issue for trial, but must designate specific facts so showing. Id. The court must accept as true those facts alleged by the non-moving party, construe the evidence in favor of the non-movant, and resolve all doubts against the moving party. Id. This means, however, that "only those facts alleged by the respondent/nonmovant and supported by affidavit or other evidence `must be taken as true.'" McDonald v. Lattire, 844 N.E.2d 206, 212 (Ind.Ct.App.2006). We have determined the trial court erred when it allowed CMHC to respond and designate evidence in opposition to DLL's motion. Accordingly, we will look only to the evidence designated by DLL in reviewing the trial court's denial of summary judgment.
DLL sued CMHC for monthly rental payments due and not paid, for possession of the equipment, and for attorney fees. On summary judgment, DLL designated
McAllister avers in his affidavit that he has been a Litigation Recovery Specialist at DLL since 2008 and that he has personal knowledge of the facts asserted therein. He further avers that:
Appellant's App. at 21-22. Attached as exhibits to McAllister's affidavit are copies of the lease and maintenance agreement, seven statements of account, and the written demand letter from DLL to CMHC for payment. The lease shows that CMHC is to lease equipment described as seven model "IM3511" copiers and accessories described as "1-4510, 3-3510, 9-DL185, and 5-DL250," and make sixty monthly payments of $1,933. Id. at 26. The "terms and conditions" of the lease provide:
Appellant's App. at 26.
DLL asserts this designated evidence— as we have determined above, the only properly-designated evidence to be considered—shows there are no genuine issues of material fact and it is entitled to summary judgment as a matter of law, in the form of a judgment for the outstanding balance, attorney fees, and an order for possession of the equipment. CMHC contends that even considering only DLL's evidence, there remain questions of fact precluding summary judgment.
CMHC first argues that the lease was between it and Pitney Bowes, and although the lease provides Pitney Bowes can assign its rights, the only designated evidence indicating Pitney Bowes had in fact assigned its rights to DLL is the "vague assertion" in McAllister's affidavit that the lease had been assigned. Brief of Appellee at 16. Trial Rule 56(E) provides, in pertinent part:
Mere assertions in an affidavit of conclusions of law or opinions will not suffice. City of Indianapolis v. Duffitt, 929 N.E.2d 231, 239 (Ind.Ct.App.2010). "An affidavit need not contain an explicit recital of personal knowledge when it can be reasonably inferred from its contents that the material parts thereof are within the affiant's personal knowledge." Decker v. Zengler, 883 N.E.2d 839, 844 (Ind.Ct.App.2008), trans. denied. However, CMHC cannot meet its burden of showing a genuine issue of material fact for trial simply by attempting to discredit McAllister's affidavit on appeal. McAllister's affidavit includes a specific recitation that he has personal knowledge of the facts related therein. That he is familiar with the CMHC lease and the corresponding accounts can also be inferred from his position with DLL as a Litigation Recovery Specialist. See, e.g., Skaggs v. Merchants Retail Credit Ass'n, Inc., 519 N.E.2d 202, 203 (Ind.Ct.App. 1988) (averments that affiant was employed by phone company and responsible for customer billing and collections sufficient to conclude recital of payments and credits made by phone service customer were based on personal knowledge). This is all that is required by Trial Rule 56(E).
CMHC admitted in its answer— which was designated by DLL as evidence in support of its motion for summary judgment—that it entered into the lease and was obligated to make monthly rental payments. CMHC has designated no evidence to refute McAllister's affidavit stating that an assignment of the lease was made from Pitney Bowes to DLL or that CMHC stopped making payments thereon. And CMHC has designated no evidence supporting its affirmative defenses of breach or termination of the lease excusing lack of payment.
McAllister's affidavit, together with CMHC's answer, is sufficient to make a prima facie showing that DLL, as Pitney Bowes assignee, has a lease agreement with CMHC, that CMHC has failed to
CMHC also argues that the statements of account that purport to show the balance CMHC allegedly owes DLL are not linked to and in fact contradict the lease. CMHC points out that the lease is for seven model "IM 3511" copiers, but the statements of account are for model "IM 3510" copiers and two of the statements of account show the same serial number. These discrepancies were not designated as specific facts precluding summary judgment, and even if they had been, do not rise to the level of a genuine issue of material fact when it is undisputed that CMHC leased seven copiers and owed monthly rent thereon. McAllister averred that CMHC owed DLL $53,185.08 for the rental of the equipment, specifically incorporating the statements of account "for each copy machine leased by CMHC pursuant to the Lease." Appellant's App. at 22. In short, DLL alleged there was no issue of material fact, designating evidence making a prima facie case that it was entitled to judgment as a matter of law, and CMHC has failed to meet its burden of demonstrating an issue of fact. DLL was entitled to entry of summary judgment in its favor.
The trial court abused its discretion in considering CMHC's late-filed response to DLL's motion for summary judgment, and considering only the properly designated evidence, the trial court erred in denying summary judgment to DLL. The judgment of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
NAJAM, J., and VAIDIK, J., concur.
