DOUGHERTY v. NEW CASTLE COMMUNITY SCHOOL CORPORATION (2025)

MEMORANDUM DECISION

Case Summary

[1] Marc and Jennifer Dougherty (collectively, “Doughertys”) brought a claim of negligence against the New Castle Community Schools Education Foundation, Inc. d/b/a New Castle Community School Corporation (“NCCS”), its Board of Trustees, the Indiana Department of Transportation (“INDOT”), and bus driver Marta Davis.¹ On appeal, the Doughertys raise a number of issues which center on whether the trial court erred in declining to consider the Doughertys’ late-filed response when ruling on INDOT's motion for summary judgment. We affirm.

Facts and Procedural History

[2] On March 7, 2020, NCCS employee Davis was driving on State Road 46 in Bartholomew County when she crossed the double-yellow-centerline and collided with Marc's vehicle. Marc sued to recover damages for injuries suffered during the collision. Marc's wife, Jennifer, joined the suit seeking to recover for loss of consortium. Their claim against INDOT alleged the department was negligent in designing, constructing, and maintaining the road where the crash occurred.

[3] On June 3, 2024, INDOT moved for summary judgment. Three days later, on June 6, the trial court issued the following order:

IT IS THEREFORE ORDERED that pursuant to Trial Rule 56, the parties shall have 30 days to respond to Defendant, Indiana Department of Transportation's Motion for Summary Judgment.

Id. at 29. The Doughertys attempted to respond to INDOT's summary judgment motion on July 8 but failed to do so because of technological problems. The next day they filed a motion for leave to respond, explaining the technological issues and maintaining good cause existed to justify the belated filing.

[4] On September 11, the trial court granted INDOT's motion for summary judgment as unopposed and entered judgment for the department. The court struck the Doughertys’ late response and adopted INDOT's statement of material facts, explaining:

There was no motion filed by any party under Trial Rule 56(I), within the applicable time limit of Trial Rule 56(C) to show any cause why the time limits pursuant to Trial Rule 56(C) should have been altered. The Court did not set forth any cause found to extend the time limit of Trial Rule 56(C), but made it clear the time limit was “pursuant to Trial Rule 56.”

Id. at 24. On the merits, the trial court found INDOT's designated evidence established there was no breach of the duty of care. And because there was no genuine issue of material fact, the trial court found INDOT was entitled to judgment as a matter of law. The Doughertys filed a motion to correct error asking the trial court to vacate its judgment, allow submission of their response, and give “due consideration” to their filing. Id. at 51. The court denied the motion.

Indiana Trial Rule 56 imposes a bright-line deadline, so the trial court did not err in rejecting the late response.

[5] Trial Rule 56 governs procedures for summary judgment and provides in pertinent part:

(C) Motion and Proceedings Thereon. 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.

* * *

(I) Alteration of Time. For cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit.

[6] Trial Rule 56 establishes a bright-line rule: “When a nonmoving party fails to respond to a motion for summary judgment within 30 days ․ the trial court cannot consider summary judgment filings of that party subsequent to the 30-day period.” Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d 967, 972 (Ind. 2014). The strict deadline imposed by Trial Rule 56(C) applies unless a party requests an extension of time under Trial Rule 56(I). See id.

[7] Here, INDOT moved for summary judgment on June 3; therefore, the Doughertys’ response was due thirty days later, on July 3. The Doughertys argue the trial court's June 6 order extended the deadline to July 6. See Appellants’ Br. at 10. And because that date fell on a Saturday, they had until Monday, July 8, to respond. Id. But the trial court's June 6 order clearly stated the timeline to respond was “pursuant to Trial Rule 56.” Appellants’ App. Vol. 2 at 29. The Doughertys’ argument that the phrase “shall have” as found in the June 6 order indicated a “prospective responsive time” as of that date is not determinative. Appellants’ Br. at 9. At no point did the Doughertys seek an extension of time as set out in Trial Rule 56(I). The trial court lacked “discretion to permit a nonmoving party who [had] not responded in some way within thirty days to thereafter file designated evidence opposing summary judgment.” Desai v. Croy, 805 N.E.2d 844, 849 (Ind. Ct. App. 2004), trans. denied. Because Trial Rule 56 lays out a bright-line rule “both for trial courts and the parties” litigating summary judgment motions, the court appropriately rejected the late filings. Id.

On appeal, the Doughertys fail to argue the grant of summary judgment was erroneous as a matter of law.

[8] Although a “party who does not respond to a motion for summary judgment may be limited to the facts established by the movant's submissions, such failure to respond does not preclude argument of the relevant law on appeal.” Murphy v. Curtis, 930 N.E.2d 1228, 1234 (Ind. Ct. App. 2010), trans. denied. Even so, when litigating a motion for summary judgment, the non-moving party has the burden of persuading the appellate court the grant of summary judgment was erroneous. See Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

[9] The Doughertys’ brief on appeal fails to address why the trial court's grant of summary judgment to INDOT was erroneous as a matter of law. We cannot become an advocate for a party or address non-existent arguments. See Stark v. State, 204 N.E.3d 957, 963 (Ind. Ct. App. 2023). Similarly, although the reply brief claims the grant of summary judgment was erroneous as a matter of law, it neglects to explain why. See Appellants’ Reply Br. at 12–13. At any rate, we cannot consider the Doughertys’ attempt to argue the issue for the first time in their reply brief. See Wang v. Sun, 212 N.E.3d 1252, 1257 n.4 (Ind. Ct. App. 2023) (holding party waived argument for not raising it until their reply brief).

[10] In this case, the trial court found INDOT's designated evidence showed the department did not breach the duty of care. In the absence of any evidence or arguments to the contrary, we will not hold otherwise. See Ramon v. Glenroy Constr. Co., 609 N.E.2d 1123, 1128 (Ind. Ct. App. 1993) (“The failure of the non-movant to offer evidence in opposition to the undisputed facts shown by the evidentiary materials or designate facts establishing a question of fact for trial will permit summary judgment to be entered against him.”).

Conclusion

[11] The trial court did not err in denying the Doughertys’ late response and granting summary judgment to INDOT.

[12] Affirmed.

FOOTNOTES

1.   Based on the 11/1/2024 entry on the CCS, the Doughertys dismissed their claims against NCCS, the Board of Trustees, and Davis. Appellants’ App. Vol. 2 at 21.

Kenworthy, Judge.

Foley, J., and Scheele, J., concur.