Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-389 | March 6, 2015 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Robert G. Grant

T. Blake Orner

Grant & Grant

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Allstate Insurance Company as 

Subrogee of Elaine Weiman,

Appellant-Plaintiff,

v.

Cleve W. Hatfield, and

Michael W. Hatfield,

Appellees-Defendants.

March 6, 2015

Court of Appeals Case No.

49A04-1408-CT-389

Appeal from the Marion County 

Superior Court; The Honorable 

Robert R. Altice, Jr., Judge;

49D05-1301-CT-3140

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-389 | March 6, 2015 Page 2 of 6

[1] Allstate appeals the denial of its motion to strike and motion for summary 

judgment. The trial court’s denial of the motion to strike violated Indiana Trial 

Rule 56(C) and, without the document that should have been stricken, there 

existed no genuine issue of material fact to prevent entry of summary judgment 

for Allstate. 

[2] We reverse and remand.

Facts and Procedural History

[3] On March 7, 2012, Cleve Hatfield and Elaine Weiman were involved in an 

automobile accident that injured Weiman. Allstate was Weiman’s insurer, and 

it paid her $10,000 for medical expenses pursuant to her policy provisions.

[4] On January 25, 2013, Allstate, as subrogee of Weiman, sued Cleve Hatfield and 

Michael Hatfield.1 After a series of extensions and failure to comply with 

Allstate’s discovery requests, the trial court issued an order for sanctions on 

January 31, 2014, against Cleve2for failure to comply with Allstate’s discovery 

requests and declared Cleve at fault for the accident.

[5] On May 23, 2014, Allstate filed a motion for summary judgment. On June 27, 

2014, Cleve filed his response and motion to strike an affidavit Allstate 

designated in its motion for summary judgment. On July 7, 2014, Allstate 

 

1 Cleve was the driver of the vehicle involved in the accident, and Michael owned it.

2

It is not clear from the record why Cleve is the only named party in this appeal and in all court rulings 

subsequent to the Order for Sanctions.
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moved to strike Cleve’s response because it was not filed within the thirty day 

time limit required by T.R. 56(C). On July 8, the trial court denied Allstate’s 

motion for summary judgment by jacket entry stating, “Court receives and 

reviews defendant’s response to motion to [sic] Summary judgment and motion 

to strike. The Court now hereby denies plaintiff’s motion for summary 

judgment regarding damages as there are genuine issues of material [sic]. The 

Court denies [Cleve’s] motion to strike.” (App. at 7.) The next day the trial 

court denied Allstate’s motion to strike.

[6] The trial court granted Allstate’s motion to certify the matter for interlocutory 

appeal pursuant to Indiana Appellate Rule 14(B)(1) and we accepted 

jurisdiction.

Discussion and Decision

[7] We first note Cleve did not file a brief. When an appellee does not submit a 

brief, we do not undertake the burden of developing arguments for that party. 

Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead, we 

apply a less stringent standard of review and may reverse if the appellant 

establishes prima facie error. Id. Prima facie error is “error at first sight, on first 

appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216, 

221 (Ind. Ct. App. 2006). 

1. Motion to Strike

[8] We review a decision regarding a motion to strike for abuse of discretion. 

Halterman v. Adams Cty. Bd. of Com’rs, 991 N.E.2d 987, 990 (Ind. Ct. App. 2013). 
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An abuse of discretion occurs when the trial court’s decision is clearly against 

the logic and effect of the facts and circumstances before it. Id.

[9] T.R. 56(C) states a party opposing summary judgment “shall have thirty (30) 

days after service of the motion to serve a response and any opposing 

affidavits.” If the non-moving party does not 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.” HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 

2008). 

[10] Allstate filed its motion for summary judgment on May 23, 2014. Cleve did not 

respond until thirty-five days later, nor did he file for an extension of time. 

Allstate moved to strike Cleve’s response as not timely filed. Allstate has 

demonstrated prima facie error on appeal because Cleve did not file his response 

to Allstate’s motion for summary judgment within thirty days as required by 

T.R. 56(C). Therefore, we reverse the denial of Allstate’s motion to strike.

2. Summary Judgment

[11] We review summary judgment de novo, applying the same standard as the trial 

court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Drawing all 

reasonable inferences in favor of the non-moving party, we will find summary

judgment appropriate if the designated evidence shows there is no genuine issue 

as to any material fact and the moving party is entitled to judgment as a matter 
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of law. Id. 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.

[12] The initial burden is on the summary-judgment movant to demonstrate there is 

no genuine issue of fact as to a determinative issue, at which point the burden 

shifts to the non-movant to come forward with evidence showing there is an 

issue for the trier of fact. Id. While the non-moving party has the burden on 

appeal of persuading us a summary judgment was erroneous, we carefully 

assess the trial court’s decision to ensure the non-movant was not improperly 

denied his day in court. Id. 

[13] Allstate claimed Cleve was liable for Weiman’s injuries because he was at fault 

for the vehicle accident, and thus the Hatfields should pay Allstate $10,000.00, 

the amount Allstate paid for Weiman’s medical bills. The trial court found 

Cleve liable for the accident as part of an Order of Sanctions premised on 

Cleve’s failure to comply with Allstate’s discovery requests. Thus, the only 

issue remaining was the amount of damages. 

[14] In its motion for summary judgment, Allstate designated detailed medical 

statements regarding Weiman’s treatment and Allstate’s payment therefor. As 

the trial court should have stricken Cleve’s response to Allstate’s motion for 

summary judgment, the only evidence properly before the trial court was 

Allstate’s evidence of Weiman’s medical expenses. As there was no genuine 
Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-389 | March 6, 2015 Page 6 of 6

issue of material fact, the trial court should have granted Allstate’s motion for 

summary judgment, and we must accordingly reverse.

Conclusion

[15] The trial court should have stricken as untimely Cleve’s response to Allstate’s 

motion for summary judgment. Without Cleve’s response, there was no 

genuine issue of material fact, and the trial court should have entered summary 

judgment for Allstate and awarded damages as requested in Allstate’s motion 

for summary judgment. We reverse and remand for proceedings consistent 

with this opinion.

[16] Reversed and remanded.

Barnes, J., and Pyle, J., concur.