Matthew Anderson

Recently, in an unpublished opinion, the Indiana Court of Appeals upheld a trial court ruling refusing to vacate an order of summary judgment where one of the lead responding counsel of record was not served electronically but his co-counsel was.

In Neil v. Byers, 2021 Ind. App. Unpub. LEXIS 741, 2021 WL 3871935, an injury case, counsel for defendants indicated she would be filing for summary judgment months in advance. Nine days before the deadline to do so, she filed such a motion, serving via the IEFS one of the plaintiff’s two counsel of record. The attorney served was also not “lead” counsel and potentially worked in a separate office. It was undisputed that the lead counsel was never served with the motion even though the defendants’ certificate of service indicated all counsel were served via the IEFS.

The deadline to respond to the motion for summary judgment passed and the trial court entered judgment in the defendants’ favor on December 11, 2020. The plaintiff filed a motion to vacate the next day, arguing service was improper as Ind. Trial Rule 5(B) required all counsel of record to be served. However, the plaintiff did not allege a meritorious defense which would have defeated summary judgment.

The trial court held a hearing on the motion to vacate, wherein co-counsel admitted receiving the motion and just assumed the lead counsel had also received it since he had been the one dealing with counsel for the defendants. The lead counsel also admitted to knowing the dispositive motion deadline (since he had agreed to extend it) and that he had an ongoing duty to keep abreast of his cases. The trial court then denied the motion to vacate.

On appeal, the plaintiff restated his arguments and alternatively argued that the motion to vacate was based on excusable neglect.1 Ind. Trial Rule 60(B)(1). However, that argument required the allegation of a meritorious defense, which the plaintiff never submitted with the motion to vacate to the trial court. The Court of Appeals, therefore, upheld the trial court’s decision not to vacate the motion for summary judgment.

It is somewhat surprising that a party who indisputably failed to serve a counsel of record – and someone they knew to be the lead counsel in the matter – a motion for summary judgment could prevail. It is a continuing reminder that attorneys should take the extra step of monitoring their cases and not rely upon other counsel, be it co-counsel or opposing counsel, to notify them of new filings or orders. 

This article is for information purposes only and is not intended to constitute legal advice. 


1This does not appear to have been argued to the trial court. Rather the original motion to vacate only cited a lack of service, and supporting caselaw, as the basis to vacate.