Biggs v. Marsh , 446 N.E.2d 977 ( 1983 )

STATON, Judge,

concurring in result.

I concur with the result reached by the Majority but for a different reason. I do not concur with the Majority's interpretation of Ind. Rules of Procedure, Trial Rule 58.8. If the Rule had been applied as it was intended by the Indiana Supreme Court, the Majority's Opinion would have been much shorter and this Opinion would never have been written. The Majority's interpretation is specious and flawed. It assumes that as long as the litigation is in fieri the trial court can act on any repetitious motion. Inherent power of the trial court is not in issue here. The trial court did not act sua sponte. It acted upon a second motion for summary judgment after five days had expired. It acted contrary to the dictates of Trial Rule 53.3 which is designed to avoid delay by repetitious motions and to expedite the litigation process before trial so that the judicial system can truly serve the needs of society rather than frustrate them. Therefore, I concur in result.

Trial Rule 58.8 is clear and explicit. It provides:

"(B) Effect of court's delay in ruling upon repetitive motion or motion to reconsider ruling on a motion. Unless such a motion is ruled upon within five (5) days it shall be deemed denied, and entry of service of notice of such denial shall not be required...."

This rule applies to Trial Rule 56, summary judgments. The only exclusions from the rule are Trial Rules 50, 52(B), 59, and 60.

In this case, a motion for summary judgment was denied by one trial judge. Later, a change of judge was granted and a second motion for summary judgment was filed for a second trial judge to rule upon. After the expiration of five days, the party opposing the motion for summary judgment should have a clear signal under our Rules of Procedure so that he can proceed with the preparation of his case for trial. Otherwise, the expense and time of trial preparation by the opposing party is an unreasonable gamble and fosters unpreparedness for trial. The opposing party should feel free to take further depositions, arrange for travel of out-of-state witnesses, interview and pay expert witnesses, and any other necessary trial preparation to expedite the litigation. The Majority's interpretation of TR. 58.3 blunts the cutting edge of the rule and turns the clock back to the days of code pleading.

I would have reversed the trial court for the reason that the motion for summary judgment was no longer available for ruling due to the five day limitation imposed by TR. 58.8(B). This does not mean that the trial court could not have sua sponte exercised its inherent power and changed its ruling upon the motion for summary judgment. If this had been the course of action taken by the trial court, this Court would only be reviewing the reasoning of the trial court for invoking its inherent power and any abuse of discretion.