## FOR PUBLICATION

ATTORNEY S FOR APPELLANT : ATTORNEY FOR APPELLEE S : HANNAH L. THOMPSON MICHAEL L. EINTERZ, JR. MATTHEW DERRINGER Einterz & Einterz RONALD E. WELDY 1 Zionsville, Indiana Weldy & Associates Indianapolis, Indiana



## IN THE

COURT OF A PPEALS OF INDIANA

ANTHONY E. BOYD , ) ) Appellant

- Plaintiff , ) ) vs. ) No. 49A05

- 1303

- PL

- 107 ) WHTIV, INC. and WALTER TARR, IV , ) ) Appellee s - Defendants

. )

APPEAL FROM THE MARION SUPERIOR COURT T he Honorable Timothy W. Oakes , Judge The Honorable Car yl F. Dill, Magistrate Cause No. 49D13

- 1209

- PL

- 35995
November 5, 2013 OPINION
- FOR PUBLICATION KIRSCH, Judge

1 We note that attorney Ronald E. Weldy (“Weldy”) filed the Notice of Appeal and Appellant’s Brief i n this matter. Pursuant to a subsequently

- issued Indiana Supreme Court Order published July 23, 2013 (“July 23 order”), Weldy was suspended from the practice of law for 180 days total, with 90 days to be actively served and the rest stayed subject to prob ation, effective August 16, 2013. Appellant’s Reply Brief initially reflected that service was made and the Reply Brief was filed on August 16, and Employer filed a Motion to Strike the Reply Brief. Thereafter, Boyd filed a Motion to Correct Scrivener’s Error, indicating the Reply Brief was served and filed on August 15, prior to Weldy’s suspension. On October 3 , 2013 we granted Boyd’s Motion to Correct Scrivener’s Error and denied Employer’s Motion to Strike the Reply Brief.2

A fter the trial court denied Anthony E. Boyd’s (“Boyd ” ) motion for an extension of time to respond to the summary judgment motion filed b y defendants WHTIV, Inc. and Walter Tarr , IV ( collectively “Employer”), and it thereafter granted Employer’s summary judgment motion, Boyd filed a motion to correct error, which the trial court denied. He now appeals, raising two issues that we restate as : I. Whether the trial court erred when it determined that Indiana Trial Rule 6(E), which extends by three days the deadline to respond following service by United States mail, did not apply to summary judgment proceedings and Boyd’s motion for extension o f time to respond to Employer’s summary judgment motion therefore was not timely filed ; and
II

. Whether Boyd is entitled to appellate attorney fees relative to Employer’s Motion for Involuntary Dismissal of Appeal

. We reverse and remand.

FACTS AND PROCE DURAL HISTORY In September 2012, Boyd filed a complaint against Employer for actual and statutory damages pursuant to the Fair Labor Standards Act and the Minimum Wage Act, alleging that Employer failed to pay him overtime premiums during his employment. On November 7, 2012, Employer filed a motion for summary judgment, and it served Boyd wi th the motion by United States m ail. Thirty

- three days later, o n December 10, 2012, Boyd filed a Motion to Extend Opposition to Defendants’ Motion for Summary Judgmen t, in which he sought additional time to respond to the summary judgment motion in order to review and complete discovery concerning Employer’s motion and Boyd’ s response thereto, as well as determine the appropriateness of filing his own cross

- motion for summary judgment

.3

Employer objected to this request for additional time to respond , asserting that because Boyd did not respond or request additional time within thirty days, i.e. by December 7, his request was not timely , and his motion must be denied

. On December 14, the trial court denied Boyd’s motion for extension of time , and it also granted Employer’s motion for summary judgment. Thereafter, Boyd filed a motion to correct error, asserting that his December 10 request for additional time to respon d to the summary judgment motion was timely because Indiana Trial Rule 6(E) extended by three days the deadline to respond since the November
7 motion for summary judgment was served upon him by mail. The trial court denied Boyd’s motion to correct error , stating: “Motion to correct error denied. Motion for extension of time was untimely.” Appellant’s App . at 5. He now appeals. DISCUSSION AND DECISION Boyd appeals from the denial of his motion to correct error. Rulings on motions to
correct error ar e typically reviewable under an abuse of discretion standard; however we review the matter de novo when the issue on appe al is purely a question of law. State v. Gonzalez

- Vazquez , 984 N.E.2d 704, 706 (Ind. Ct. App. 2013) (citing Ind. Bureau of Motor Vehic les v. Charles , 919 N.E.2d 114, 116 (Ind. Ct. App. 2009) ) , trans. denied

. In this case, as in Gonzales

- Vazquez , The motion to correct error ultimately relates back to whether the trial court should consider [Boyd’s] response to be timely pursuant to Tria l Rule 56 and Trial Rule 6(E). There is no dispute concerning the dates o f service or any of the parties’ motions. Accordingly, a legal issue is presented. 984 N.E.2d at 706.4 I. Timeliness of Boyd’s Request for Extension of Time This appeal presents t he question of whether Indiana Trial Rule 6(E) extends the date by which the non

- movant must respond to a summary judgment motion or request an extension of time to respond. Employer ’s position is that any motion for extension of time to respond to a moti on for summary judgment must comply with the thirty

- day deadline provided in Indiana Trial Rule 56(F) or Trial Rule 56(I) and that the three

- day extens ion of time provided by Trial Rule 6(E) does not apply. Upon review of the relevant statutes and
recent case law, we disagree. Initially, we begin with Indiana Trial Rule 56 (C) and observe that it states, in pertinent part , “ An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits. ” (Emphasi s added.) By its terms, Trial Rule 56(C) recognizes that the response time is not thirty days from the date of the filing of the motion; rather, it is thirty days from the date of service on the recipient . Likewise, our trial rules specifically provide f or additional time for service by mail. Trial Rule 6(E) states : Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by United States mail, three [3] days shall be added to the prescribed period. Indeed, a review of Indiana case law reveals that Trial Rule 6(E) ’s three

- day extension of time is permitted and calculated into the required response time f or summary judgment motions

. For instance, in City of Mishawaka v. Kvale , 810 N.E.2d 1129 (Ind. Ct. App. 2004) , we recognized ,5

[B] ecause the Estate served its motion for summary judgment via mail, City had an ad ditional three days to respond. See T.R. 6 (E). Because City’ s response and designation of evidence was filed after the thirty

- three days had expired, the trial court did not abuse its discretion by striking City’ s response and designated materials

. Id

. at 1134. Similarly, in S tarks Mech., Inc. v. New Albany

- Floyd Cnty. Consol. Sch. Corp. , 854 N.E.2d 936 (Ind. Ct. App. 2006) , we recognized, Indiana Trial Rule 56(C) provides that the nonmovant has thirty days after being served with a motion for summary judgment to serve a response and any opposin g affidavits. Trial Rule 6(E) provides that when a motion is served by mail, an additional three days shall be added to the prescribed period. Id . at 939. Nevertheless, here, Employer asserts that the three

- day extension granted by Trial Rule 6(E) does n ot apply to Trial Rule 56 motions for summary judgment because Trial Rule 56 exclusively controls the timing of summary judgment proceedings . In support of this position , Employer relies on this court’s decision in DeLage Landen Fin ancial Serv ice s, Inc. v . C om m uni ty Mental Health C en t e r , 9 65 N.E.2d 693 (Ind. Ct. App. 2012) , trans. denied

. Ther e, DeLage, a lessor of copy machines , moved for summary judgment on its complaint against lessee Community Mental Health Center (“CMHC”)

. DeLage’s motion for summar y judgment was filed on March 15, 2011. On May 27, 2011, CMHC, the non

movant , moved for enlargement of time to respond pursuant to Indiana Trial Rule 6(B)(2) , which allows a trial court to permit an act to be done after the expiration of the time period if the failure to act was the result of excusable neglect, namely to be an inexperienced6

employee who did not properly schedule the due date for the response

. 2 The trial court in DeLage allowed CMHC’s be lated response and denied DeLage ’s motion for summar y judgment, and DeLage appealed. In its analysis, t he DeLage court examined our S upreme C ourt’s decision in HomEq Servicing Corp. v. Baker , 883 N.E.2d 95, 98

- 99 (Ind. 2008) , where th e court stated : When a nonmoving party fails to 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 pe riod. DeLage , 965 N.E.2d at 697. As the DeLage court noted, however, the non

- movant in HomeEq never requested an enlargement of time under Indiana Trial Rules, whereas CMHC did request an enlargement under Tri al Rule 6(B)(2). T he DeLage court thus focus ed on the conflict , if any, between Trial Rule 56(I) , which states that “f or cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit ” and the extension of time provision of Trial Rule 6(B)(2)

. T he DeLage court ultimately determined that Trial Rule 6(B)(2) does not apply to summary judgment materials , and CMHC’s belated response should not have been permitted

. DeLage , 965 N.E.2d at 698.

2 Indiana Trial Rule 6(B)(2) provides: “When an act is required or allowed to be done at or within a specific time by these rules, the court may at any time for cause shown:

. . . upon motion made after the expiration of the specific period, permit the act to be done where the failur e to act was the result of excusable neglect; but, the court may not extend the time for taking any action for judgment on the evidence under Rule 50(A), amendment of findings and judgment under Rule 52(B), to correct errors under Rule 59(C), statement in opposition to motion to correct error under Rule 59(E), or to obtain relief from final judgment under Rule 60(B), except to the extent and under the conditions stated in those rules.”7

One year later, this court in Gonzales

- Vazquez addresse d the scope of the DeLage decision in a factual context strikingly similar to the one we face today. There, in post

conviction proceedings, Vazquez filed a motion for summary judgment on July 17, 2012. The motion was served on the State by certified mail . On August 20, 2012, the State filed a request for an extension of time in which to file a response to the motion for summary judgment. The trial court granted the State’s request, the State thereafter filed a response on August 24, and Vazquez’s motion for summary judgment was denied. Vazquez filed a motion for reconsideration arguing that the State’s August 20 request for enlargement of time and its subsequent response were both untimely

. Like Employer in the present case , Vazquez, relying u pon DeLag e , argue d that Trial Rule 56 exclusively controls timing of summary judgment filings. The post

- conviction court agreed with Vazquez and concluded that the State had failed to request an enlargement of time within thi rty days as provided by Trial Rule 56(I ) and that no days could be added to the thirty

- day period due to mail service ; it struck the State’s response and it granted Vazquez’s motion for summary judgment

. The State filed a motion to correct error, contending that its motion for enlargement of time, which was filed thirty

- four days after the summary judgment motion, was timely because the State was entitled to add three days for mail service and the thirty

- third day had fallen on a Sunday. The post

- conviction court rejected that argument. The State appealed.
In our Gonzalez

- Vazquez decision, we determined tha t, to the extent that the post

conviction court had understood DeLage to mean that no provision of Trial Rule 6 could be applicable in summary judgment proce edings, the post

- conviction co urt had interpreted the8

import of DeLage “too broadly.” Gonzalez

- Vazquez , 984 N.E.2d at 707

. Indeed, as the Gonzalez

- Vazquez court noted, the DeLage court had referred to and relied upon Trial Rule 6(E) : On March 15, 2011 [DeLage] filed a motion for su mmary 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

– to file a response

. Id . at 708 (quoting DeLage , 965 N.E.2d at 695 and adding emphasis ). T he DeLage court footnot ed Trial Rule 6(E) as the source of the permitted three

- day extension. DeLage , 965 N.E.2d at 695 n.1. T he Gonzalez

- Vazquez court concluded that the post

- conviction court erred as a matter of law when it excluded the St ate’s request for an extension of time as being untimely, and it reversed the grant of summary judgment in favor of Vazquez. Gonzalez

- Vazquez , 984 N.E.2d at 708

. Gonzalez

- Vazquez

– which Employer neither distinguishes n or cites to

– guides our decisi on today, and we hold that the three

- day extens ion of time provided by Trial Rule 6(E) applies in the context of Boyd’s request for an extension of time to respond to Employer’s motion for summary judgment. Consequently, as applied here, Boyd’s request fo r extension of time to respond was not untimely, and the trial court should not have denied his motion to
correct error. 3 See id

. ( revers ing trial court’s denial of S tate’s motion to correct error ).

3 As stated, the trial court’s order denying the motion to correct erro r reflected that the denial was based upon the fact that the request for an extension of time was not timely filed. Appellant’s App . at 5. However, to the extent that the trial court’s denial of Boyd’s motion for enlargement of time was based on the mer its of the motion, the trial court abused its discretion; the civil proceedings had just recently commenced, discovery had timely begun, and the request for more time was reaso nable under the circumstances.9

Further, Boyd argues, and we agree, that because he s ought , but was denied , additi onal time to complete discovery, the trial court’s grant of summary judgment in Employer’s favor was premature. As we have recognized, summary judgment proceedings are not substitutes for trials on the merits and motions for s ummary judgment should only be granted where the parties have adequate time to complete discovery. Col lins v. HSBC Bank USA, Nat ’l Ass’ n , 974 N.E.2d 537 , 541 (Ind. Ct. App. 2012) ( recognizing that t rial courts generally will not grant summary judgment whe n there are pending discovery requests that might impact court’ s ability to decide motion )

. Accordingly, we reverse both the trial court’s denial of Boyd’s motion to correct error and its grant of summary judgment in Employer’s favor. Gonzales

- Vazquez , 9 84 N.E.2d at 708

. I I . Attorney Fees Lastly, we address Boyd’s pending Verified M otion fo r A ppella nt F ees (“verified motion”) , in which Boyd seeks to recover attorney’s fees incurred in opposing Employer’s Motion for Involuntary Dismissa l of Appeal (“mot ion for dismissal”) , 4 which this court ultimately denied. A brief procedural backdrop is warranted.
A fter Boyd filed his n otice of a ppeal with this court, Employer filed the motion for dismissal, asserting that Boyd had failed to timely file a motion to correct error with the trial
court , and because that motion was not timely, his notice of appeal likewise was not timely, and his appeal should be dismissed. Specifically, Employer explained , judgment was

4 We note that Employer’s m otion for d i smissal wa s not initially accepted for filing because it was defective for failing to file the required number of copies. Upon Notice of Defect from the Clerk, Employer filed the appropriate number of copies of his motion.10

entered in this case on December 14, 2012 , and Boyd “attempted to file” a motion to correct error on January 14, 201 3 , thirty

- one days later , but, Employer maintain ed, Boyd was required to file his notice of appeal or motion to correct error no later than January 13, 2013. Boyd filed a response to Empl oyer’s motion for dismissal , advising that January 13, 2013 was a Sunday, and thus his motion filed on January 14, 2013 was timely pursuant to Indiana Trial Rule 6(A) and further claiming that Employer’s motion for dismiss al was frivolous

. T his c ourt deni ed Employer’s motion for dismiss al

. Following our denial of Employer’s motion for dismissal , Boyd filed the v erified

m otion pursuant to Indiana Appellate Rule 66, arguing that given Indiana Trial Rule 6(A)’s directive that a party is given another day to file a pleading if the deadline falls o n a Sunday, Employer’s motion for dismiss al “ intentionally ignored the Trial R ules” and was “void of all plausibility , ” and Boyd asked this court to order Employer to pay $1 , 575 incurred in reviewing the motion for di smiss al , communicating with Employer’s counsel to seek a voluntary withdrawal of the motion , drafting a response to the motion, and drafting the verified motion. Employer responded and opposed the verified motion. This court ordered that t he motion for a ttorney fees was to be held in abeyance for later determination by the writing panel. Indiana Appellate Rule 66(E) provides in part that this court “may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court ’ s discretion and may include attorneys ’ fees.” Ballaban v. Bloomington Jewish Cmty., Inc. , 982 N.E.2d 329, 339 (Ind. Ct. App. 2013) . Our discretion is limited to instances11

of “meritlessness, bad faith, frivolity, harassment, vexatio usness, or purpose of delay.” Id

. A strong showing is required to justify an award of appellate damages and the sanction is not imposed to punish mere lack of meri t but something more egregious. Harness v. Schmitt , 924 N.E.2d 162, 168 (Ind. Ct. App. 201 0). Upon review , we find that Employer’s
motion for dismissal fit s more into the former “lack of merit” category than into the latter “something more egregious ” one. The crux of Employer’s motion for dismissal was that Boyd’s motion to correct error

w as not timely filed because the time requirements of Trial Rule 59 were not subject to automatic extension by operation of Trial Rule 6 , and consequently , Boyd’s notice of appeal

was not timely filed. Employer’s motion for dismissal thus presented a legal argument , supported by cogent argument and citation. Although we ultimately did not accept Employer’s position and denied his motion for dismiss al, we are not persuaded that the motion for dismissal was permeated with vexatiousness or harassment sufficie nt to support an award of fees under Appellate Rule 66(A). We thus deny Boy d’s verified motion for
fees. Reversed and remanded for further proceedings. ROBB, C.J., and RILEY, J., concur.