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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. ATTORNEY FOR APPELLANT: MARK D. OSTERMAN Osterman Law, LLC Muncie, Indiana

FILED
Aug 12 2011, 9:31 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLEE: MATTHEW J. HAGENOW Newby, Lewis, Kaminski & Jones, LLP LaPorte, Indiana

IN THE COURT OF APPEALS OF INDIANA
KEVIN J. BYERS, Appellant-Plaintiff, vs. CONSOLIDATED UNION, INC., Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 52A04-1012-CT-767

APPEAL FROM THE MIAMI CIRCUIT COURT The Honorable Robert A. Spahr, Judge Cause No. 52C01-0905-CT-264 August 12, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Kevin Byers appeals summary judgment for Consolidated Union, Inc. (Consolidated). He raises multiple issues for our review, which we consolidate and restate as: 1. Whether the trial court abused its discretion when it denied Byers' motion to amend his complaint and add a necessary third party; and 2. We affirm. FACTS AND PROCEDURAL HISTORY Sometime in the mid-1990's, Byers contacted Jill Spin, an insurance agent with Estlick, Girvin, and Lefever, to request homeowners' insurance for his residence. Spin helped Byers obtain a homeowners' insurance policy with Goodwill Mutual Insurance Company (Goodwill). In 2002, Spin became an insurance agent for Consolidated. She remained employed there until 2006. On August 19, 2004, Goodwill sent a notice to Byers and the banks with which he had mortgages, First Farmers Bank and Trust (Bank) and The CIT Group, indicating his homeowners' insurance policy would terminate on September 24, 2004. Byers claimed he never received this notice and therefore did not procure alternate homeowners' insurance. On May 25, 2007, Byers' residence was damaged by fire. After the fire, Byers contacted Consolidated to make a claim on his homeowners' insurance policy, and he was told he did not have a policy with Consolidated. On May 28, 2009, Byers sued Consolidated, alleging it "did not contract for insurance coverage as requested by [Byers][,]" "failed to obtain insurance, and is in breach of 2 Whether summary judgment was proper.

contract[,]" and is "negligent for failing to obtain insurance coverage for [Byers]." (App. at 2.) Consolidated answered the complaint on June 8, 2009, and raised a non-party defense, asserting the Bank was responsible for Byers' damages. Over a year later, on September 8, 2010, Consolidated filed a motion for summary judgment. On October 7, Byers filed a motion for substitution of counsel, which was granted. That same day, his new counsel,1 moved to add Bank as a defendant. On October 28, Byers filed a response to Consolidated's motion for summary judgment. On November 12, the trial court held a hearing on Consolidated's motion for summary judgment. The trial court granted summary judgment in favor of Consolidated in an order that denied Byers' motion to amend his complaint; declined to consider Byers' motion to amend as his response to Consolidated's motion for summary judgment; struck Byers' response to Consolidated's motion for summary judgment as untimely; and held Byers' claims were barred by the statute of limitations.

The attorney who replaced Byers' original counsel is also his counsel in this appeal, and we take this opportunity to address a few procedural missteps made in Byers' brief. First, we note Byers' counsel included an "Appellant's Proposed Appellate Order." While trial courts may frequently accept draft orders from parties, nothing in our appellate rules suggests a proposed order by a party is necessary or permitted. Additionally, we highlight counsel's use of footnotes to indicate the portions of the appendix and transcript, as well as some cases and side arguments. The format used by counsel has been encouraged by many proponents, including Bryan Garner. See Garner on Language and Writing 475 (2009). At the present time, however, Ind. Appellate Rule 22 states that "[u]nless otherwise provided, a current edition of a Uniform System of Citation (Bluebook) shall be followed." See The Bluebook: A Uniform System of Citation 4 (Columbia Law Review Ass'n et al. eds, 19th ed. 2010)(providing that "[i]n non-academic legal documents, citations appear within the text of the documents as full sentences or as clauses within sentences directly after the propositions they support. As opposed to academic legal documents, which cite to authority using footnotes . . ."). While the new or different format may be attractive to some, it is recommended counsel utilize our present process until the rules are amended.
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DISCUSSION AND DECISION 1. Motion to Amend

Byers contends the trial court should have allowed him to add the Bank as a party. We review a ruling on a motion to amend for abuse of discretion. Turner v. Franklin County Four Wheelers, Inc., 889 N.E.2d 903, 906 (Ind. Ct. App. 2008). An abuse of discretion occurs when "the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law." Id. In determining if an abuse of discretion has occurred, we consider factors such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiency by amendment previously allowed, undue prejudice to the opposing party, and futility of the amendment." Id. In granting summary judgment for Consolidated, the trial court "specifically reject[ed] the Motion to Amend Complaint to add [Bank] as Necessary party." (App. at 192.) Byers' motion came sixteen months after his complaint, and more than a year after Consolidated first advanced the affirmative defense that the Bank was responsible for Byers' damages. Byers' delay in amending his complaint unduly prejudiced Consolidated. See Hilliard v. Jacobs, 927 N.E.2d 393, 400 (Ind. Ct. App. 2010) (plaintiff's tactic of "asserting new theories of recovery only after the original claims have proven unsound would place undue burden on [defendant] . . . and such undue burden constitutes prejudice"). In light of Byers' delay in amending his complaint, we cannot say the trial court abused its discretion in

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denying his motion.2 2. Summary Judgment

In his complaint, Byers alleged Consolidated breached their contract and was negligent when it did not procure homeowners' insurance at Byers' request.3 In granting summary judgment, the trial court apparently applied the two-year limitations period for negligence claims4 to determine Byers' claim was barred: . . . counsel for [Consolidated] directed the Court to the fact that [Byers] suffered fire damage to his property on May 25, 2007, but failed to file his complaint against the Defendant, Consolidated Union until May 28, 2009.
The trial also declined to consider Byers' motion to amend as a response to Consolidated's motion for summary judgment. At the hearing on Consolidated's motion for summary judgment, Byers' counsel asked the court to consider his motion to amend complaint and add a necessary defendant a response to Consolidated's motion for summary judgment. Counsel said he thought the "motion to amend the complaint retire[d] [Consolidated's summary judgment motion]." (Tr. at 26.) Byers bases his argument on our recent decision in Wise v. Hays, wherein we allowed an exhibit in Wise's amended complaint to be considered as a response to what we characterized as Hays' motion for summary judgment. 943 N.E.2d 835, 839 (Ind. Ct. App. 2011). The instant case is distinguishable. In Wise, Hays filed a motion to dismiss, which the trial court granted. On appeal, we determined the grant of the motion to dismiss amounted to a summary judgment for Hays because the trial court considered exhibits Wise submitted in her amended complaint. The rules regarding summary judgment pleadings were not at issue at the trial court, and we did not discuss them in our opinion. Here, however, Consolidated filed a motion for summary judgment, and thus the filing deadlines under T.R. 56 are applicable, not Wise. Accordingly, we hold the trial court did not abuse its discretion in declining to consider his motion to amend a response to Consolidated's summary judgment motion. 3 Byers also argues his response to Consolidated's Motion for Summary Judgment was timely. We disagree. [W]here a nonmoving party fails to respond within thirty days by either (1) filing affidavits showing issues of material fact, (2) filing his own affidavit under Rule 56(F) indicating why the facts necessary to justify his opposition are unavailable, or (3) requesting an extension of time in which to file his response under 56(I), the trial court lacks discretion to permit that party to thereafter file a response. In other words, a trial court may exercise discretion and alter time limits under 56(I) only if the nonmoving party has responded or sought an extension within thirty days from the date the moving party filed for summary judgment. HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98 (Ind. 2008) (quoting Desai v. Croy, 805 N.E.2d 844, 850 (Ind. Ct. App. 2004)). Consolidated filed its motion for summary judgment on September 13, 2010, and Byers was required to respond by October 14. Byers responded October 28, which was two weeks too late. He did not ask for an extension. Pursuant to HomEq, the trial court lacked the discretion to allow him to respond after the due date, id., and therefore it properly struck Byers' response. 4 Ind. Code

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