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Click here for the full text of this decision FACTS:On Oct. 27, 1998, Wood County Electric Co-Op trimmed trees along its power lines located on portions of the 63 acres Buddy Kindle owned. On Oct. 27, 2000, Kindle filed suit against WCEC for trespass, fraud, tortious interference with business activities and tortious interference with a contract. He requested at least $500,000 in actual damages and at least $2.5 million in punitive damages. Kindle did not pay the clerk to issue the citation until Feb. 7, 2001. WCEC was finally served on Feb. 14, 2001. WCEC filed a general denial, then it filed a motion for summary judgment, saying it had not been served until Feb. 14, 2001. WCEC argued Kindle had not exercised due diligence in serving it, and that the statute of limitations had run out before WCEC was served. At the summary judgment hearing, Kindle attempted to file a response to the motion, along with an affidavit, but the trial court refused. The trial court then granted WCEC’s motion. HOLDING:Affirmed. The statute of limitations continues to run unless due diligence is exercised to issue citation; an unexplained delay constitutes lack of due diligence as a matter of law. Kindle did not produce any summary judgment evidence to explain the delay in serving WCEC, so the trial court’s grant of summary judgment on statute of limitations grounds was proper. The court also confirms that WCEC was allowed to raise the statute of limitations defense in a motion for summary judgment, even though it did not raise the argument in its original answers to the complaint. An unpleaded affirmative defense may be raised for the first time in a summary judgment motion when the opposing party does not object under T.R.Civ.P. 94. Kindle did not so object. The court rejects Kindle’s challenge of the attorney WCEC used at the summary judgment hearing; Kindle says he was not the attorney of record. Kindle knew the attorney worked on regional matters for WCEC and signed the summary judgment motion with the counsel of record. If Kindle felt that the attorney was unauthorized to represent WCEC, his exclusive method for challenging that representation is under T.R.Civ.P. 12. Kindle did not make such a challenge. Finally, the court rules finds no evidence to back up Kindle’s assertion that he and WCEC had an agreement not to raise the statute of limitations defense. OPINION:Worthen, C.J.; Worthen, C.J., Griffith and DeVasto, JJ.

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