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Wednesday, March 26, 2008

Ind. Decisions - Supreme Court holds "that the exception recognized in footnote 4 of Cavinder Elevators, Inc. v. Hall, applies to permit the defendants to raise that issue on appeal"

In Homeq Servicing Corp. v. Bradley and Constance Baker, a 6-page, 5-0 opinion, Justice Dickson writes:

In this appeal, we address two issues. First, we hold that cross-error is available to appeal issues presented in a motion to correct error that is belatedly granted contrary to the "deemed denied" provisions of Ind. Trial Rule 53.3(A). Second, we hold that a trial court may not consider untimely filed materials opposing summary judgment. * * *

Conclusion The defendants do not dispute the plaintiff's claim that the defendants' motion to correct error challenging the grant of summary judgment was deemed denied pursuant to T.R. 53.3(A), but the defendants correctly assert that they are entitled to challenge by cross-appeal the summary judgment entered without consideration of the defendants' untimely opposing affidavit. Considering that claim, we conclude that the trial court correctly excluded the untimely affidavit, and we affirm the grant of the plaintiff's motion for summary judgment and remand for entry of judgment consistent with this opinion.

Posted by Marcia Oddi on March 26, 2008 12:57 PM
Posted to Ind. Sup.Ct. Decisions