Life v. FC Tucker Co., Inc.
2011 Ind. App. LEXIS 723
| Ind. Ct. App. | 2011Background
- Lifes contracted with M-One, LLC for construction of their home after Home Link referred them.
- Home Link, affiliated with F.C. Tucker, had a marketing agreement with Maintenance One paying a 5% gross-fee and $3,000 annual fee.
- Tucker/Home Link not parties to the Lifes' contract; Lifes alleged breach of contract and negligent construction against Maintenance One and affiliates.
- Tucker moved for summary judgment; Lifes responded over 30 days later with affidavits, designations, and a motion for partial summary judgment.
- Trial court struck Lifes' response and affidavits, denied Lifes’ partial summary judgment, and granted Tucker summary judgment.
- On appeal, Lifes challenge both the striking of their response and the grant of summary judgment; the court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Untimely response to summary judgment | Lifes contend timely/extendable under 56(I). | Tucker argues late response cannot be considered. | Court affirmed striking the late response and affidavits. |
| Partial summary judgment and overall summary judgment | Lifes claim Tucker is liable as partner or agent in contract/negligence. | Tucker is an independent contractor; no contract or duty to Lifes. | Summary judgment for Tucker affirmed; Lifes cannot establish contract or tort duty. |
Key Cases Cited
- Desai v. Croy, 805 N.E.2d 844 (Ind. Ct. App. 2004) (late failure to respond precludes post-30-day filings unless extended)
- HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind. 2008) (bright-line rule: no consideration of late summary judgment filings without timely response)
- Borsuk v. Town of St. John, 820 N.E.2d 118 (Ind. 2005) (cited by Desai/HomEq regarding 30-day response rule)
- Weinig v. Weinig, 674 N.E.2d 991 (Ind. Ct. App. 1996) (partnership elements and substantive look at intent and profits)
- Gallatin Group v. Central Life Assur. Co., 650 N.E.2d 70 (Ind. Ct. App. 1995) (partnership binding for contracts within firm’s business)
- Bacon v. Christian, 111 N.E. 628 (Ind. 1916) (essential elements of partnership intent and community of interest)
- Greg Allen Const. Co. v. Estelle, 798 N.E.2d 171 (Ind. 2003) (negligence in contract context; tort may arise but no contract -> no duty)