In this interlocutory appeal, Joseph Reiswerg and the law firm of Cohen Garelick and Grazier filed motions for summary judgment asserting an affirmative defense of statute of limitations to Pam Statom’s attorney malpractice lawsuit against them. The trial court granted Statom’s motion to strike both motions, stating that Reiswerg and the law firm had waived the statute of limitations defense by failing to raise it in response to Statom’s motion for partial summary judgment against them. We reverse the trial court and hold that a party does not waive an affirmative defense by failing to raise it in response to a motion for partial summary judgment that would not be dispositive as to the issue of liability.
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Statom moved for partial summary judgment pursuant to Indiana Trial Rule 56, which allows a party to move for summary judgment on “all or any part” of a claim. Statom’s motion for partial summary judgment asked the trial court for a determination that Reiswerg and CGG were “negligent as a matter of law” and that “their negligence caused harm to Statom.” The elements of an action for legal malpractice are: “(1) employment of an attorney, which creates a duty to the client; (2) failure of the attorney to exercise ordinary skill and knowledge (breach of the duty); and (3) that such negligence was the proximate cause of (4) damage to the plaintiff.” Solnosky v. Goodwell, 892 N.E.2d 174, 181 (Ind. Ct. App. 2008) (quoting Clary v. Lite Machs. Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006)). Proximate cause embraces both factual causation and scope of liability. Kovach v. Caligor Midwest, 913 N.E.2d 193, 197 (Ind. 2009); see generally Restatement (Third) of Torts ch. 6, special note on proximate cause (2010). Statom’s motion for partial summary judgment sought to eliminate breach and factual causation, but it did not seek to resolve all issues bearing on liability. A number of these issues remained open, including comparative fault as between the plaintiff and the defendant and as among defendants, scope of liability, and any affirmative defenses.
Statom’s motion sought partial summary judgment on the issue of negligence, “leaving damages and allocation of fault” for trial. Statom’s motion for partial summary judgment did not mention, much less negate Reiswerg’s affirmative defense of statute of limitations, and did not seek to establish liability. A party responding to a motion for summary judgment is entitled to take the motion as the moving party frames it. The defendants were under no obligation to raise their affirmative defenses in response to the motion for partial summary judgment that Statom presented. A non-movant is not required to address a particular element of a claim unless the moving party has first addressed and presented evidence on that element. Jarboe v. Landmark Community Newspapers, Inc., 644 N.E.2d 118, 123 (Ind. 1994); see also Kennedy v. Murphy, 659 N.E.2d 506, 508 (Ind. 1995) (plaintiff need not address the issue of causation in response to defendant’s motion for summary judgment on the standard of care element in medical malpractice action). These decisions addressed issues on which the moving party had the burden of proof. In the case before us today, the affirmative defense of statute of limitations is one on which the non-moving defendants had the burden of proof, but this does not alter the plaintiff’s obligation to put in play the issue upon which the plaintiff seeks relief. Here, Statom did not do that. The statute of limitations was asserted as an affirmative defense in the defendants’ answers to the complaint. If Statom wished to resolve all issues as to liability by summary judgment, it was her burden to seek summary judgment on liability. She could also have addressed the statute of limitations directly. If she had done either of these, the limitations defense would have been waived if not presented in response to her motion. But she did neither, and therefore did not raise the raise the adequacy of the defendants’ affirmative defenses.
We agree with those cases holding that a party is required to assert affirmative defenses in response to a motion for summary judgment that would dispose of the case or a motion for partial summary judgment that would establish liability.4 But none of these cases holds that a motion for partial summary judgment on an issue less than liability requires the responding party to assert affirmative defenses or any other issue beyond those raised by the relief sought by the moving party. Both the trial court and the Court of Appeals cited Madison Area Educational Special Services Unit v. Daniels, 678 N.E.2d 427 (Ind. Ct. App. 1997), trans. denied, in holding that Reiswerg and CGG had waived the statute of limitations defense by failing to assert it in response to Statom’s motion for partial summary judgment. We do not find Daniels persuasive here. Daniels was a proceeding in which the only issue was the plaintiff’s entitlement to attorneys’ fees available to the “prevailing party” in an administrative proceeding under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1401 (2004). See 511 Indiana Administrative Code 7-15-6(q) (1991 & Supp. 1993), (awarding attorneys’ fees to the prevailing party). The Court of Appeals held that a school district had waived its statute of limitations defense to the claim for attorneys’ fees by failing to raise it in response to a family’s motion for partial summary judgment which, as described in the opinion, was “for summary judgment.” Daniels, 678 N.E.2d at 430. There is no mention in Daniels of the effect of a partial summary judgment on an affirmative defense. We read the Daniels opinion as treating the motion as one for partial summary judgment as to liability, leaving only damages to be resolved. The court merely held that by failing to assert the statute of limitations in response to the plaintiffs’ motion for summary judgment as to liability, the School waived the defense. Id.
Daniels is consistent with those cases that found an affirmative defense waived if not asserted in response to a motion for summary judgment that disposed of the entire issue of liability. It is similar to Pantry, Inc. v. Stop-N-Go Foods, Inc., 796 F. Supp. 1164, 1167–68 (S.D. Ind. 1992), which held that a defendant waived affirmative defenses by failing to assert them in response to plaintiff’s motion for partial summary judgment on issue of liability. As Judge Tinder explained, “[w]hen a party moves for a summary judgment on the issue of liability, the non-movant is thereby placed on notice that all arguments and evidence opposing a finding of liability must be presented to properly resolve that issue.” Id. at 1167. But neither Daniels nor Pantry supports the view that a motion such as Statom’s that seeks resolution of some but not all elements of liability requires the non-movant to present its affirmative defenses.
No Indiana case has heretofore addressed this issue in the context of a motion for partial summary judgment on less than liability. However, decisions from other jurisdictions are consistent with our view. Where, as here, the plaintiff moves only for partial summary judgment on an issue or an element but not as to liability, the defendant is under no obligation to present all of its affirmative defenses at the summary judgment stage. In short, Statom moved for partial summary judgment, seeking only a declaration that the defendants were negligent as a matter of law. If Statom wanted to move for partial summary judgment on the issue of liability, her mo-tion should have so stated. It did not. She cannot now claim a victory greater than she sought and greater than she placed in issue.
The trial court granted Statom’s motion to strike both Reiswerg’s and CGG’s motions for summary judgment asserting the statute of limitations defense. The Court of Appeals reversed as to CGG, finding that “the fundamental difference between Reiswerg and CGG is that the trial court denied the motion for partial summary judgment as to CGG.” Reiswerg v. Statom, 897 N.E.2d 490, 499 (Ind. Ct. App. 2009). The Court of Appeals relied on Abbott v. Bates, 670 N.E.2d 916 (Ind. Ct. App. 1996), for this conclusion. In Abbott, the plaintiff filed a foreclosure action against Abbott both individually and as trustee. The trial court granted summary judgment against Abbott individually but not against Abbott as trustee. Abbott later attempted to assert affirmative defenses, and the court found that she had waived them individually but not as trustee. The Court of Appeals held that the waiver determination in Abbott was based on the success or failure of the plaintiff’s motion for summary judgment with respect to Abbott individually and Abbott as trustee. Reiswerg, 897 N.E.2d at 499. We read Abbott differently, and conclude the difference in result turned on whether the summary judgment was dispositive of an entire claim:
[W]e cannot say with certainty that the first order was dispositive as to this issue. Thus, Abbott was not required to preserve the issue of the mortgages’ validity by appealing from the first grant of summary judgment nor was she precluded from raising the issue in opposition to Bates’ second motion for summary judgment.
Abbott, 670 N.E.2d at 921. We do not agree that whether Statom’s motion for partial summary judgment succeeded or failed controls its preclusive effect. Specifically, a party’s success or failure in opposing a partial summary judgment motion does not dictate whether that party waived an affirmative defense. Waiver of a contention is effected by the contention’s being placed in issue by the movant and the non-movant’s failure to raise it. When Statom moved for partial summary judgment on the issue of negligence, neither Reiswerg nor CGG asserted the statute of limitations in response. A non-movant’s choice not to assert an affirmative defense as a response to a motion for partial summary judgment that does not implicate the affirmative defense does not bar later assertion of the defense.
The trial court’s order striking the defendants’ motions for summary judgment is reversed. This case is remanded for proceedings consistent with this opinion.
Shepard, C.J., and Dickson, J., concur.
Rucker, J., concurs in result in part and dissents in part with separate opinion in which Sullivan, J., concurs.
RUCKER, Justice, concurring in result in part and dissenting in part.
Because I believe the trial court correctly struck Reiswerg’s motion for summary judgment on grounds that Reiswerg waived his statute of limitations defense by failing to raise it in response to Statom’s motion for partial summary judgment, I respectfully dissent to Part I of the majority opinion. I concur in result to Part II.
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Under this State’s long-standing and settled law, Reiswerg could not resurrect his statute of limitation defense in his own motion for summary judgment. It was too late. The defense had been waived. Easy case. The trial court properly struck Reiswerg’s summary judgment motion, and its decision should be affirmed. Therefore on this issue I dissent. In all other respects I concur in the result reached by the majority.
Sullivan, J., concurs.