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Despite out-of-court agreement, COA upholds motion to strike

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The Indiana Court of Appeals encourages collegiality among attorneys when it comes to resolving issues outside of court, but it had to uphold the striking of documents because they were not timely filed with the trial court. The parties’ attorneys agreed to an extension of time to reply outside of court, but the trial court had no choice but to not allow the late reply.

In Mary Booher, et al. v. Sheeram, LLC, No. 20A03-1005-CT-338, Mary and Steve Booher sued Hampton Inn of Elkhart after Mary slipped in a bathtub and injured herself. The hotel had received earlier complaints that the tubs were slippery and coated the tubs with a non-skid surface, but that didn’t cover the entire bottom of the tubs. The coating did comply with safety standards.

The Boohers filed a negligence suit and requested through the courts and received two extensions of times to reply to Hampton Inn’s motion for summary judgment. After their second extension, their deadline to reply was Nov. 7, 2008.

But the Boohers’ expert needed more time to get his report together and was going to be out of the country until Nov. 7. The Boohers’ attorney also was preparing for major surgery on Oct. 24 and would be away for two weeks. The attorney’s legal assistant spoke with Hampton Inn’s attorney, who agreed to a three-week extension, but the Boohers never filed a formal request for an extension with the trial court. They submitted their material designation of facts and other documents Nov. 26.

Hampton Inn then filed a motion to strike, which the trial court granted based on Trial Rule 56. It later granted summary judgment for Hampton Inn.

The Court of Appeals affirmed the motion to strike based on the bright line rule set forth by the Indiana Supreme Court, which says 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.”

Chief Judge John Baker wrote that the appellate court encourages collegiality to solve issues outside of the courtroom, but in circumstances as what occurred in the instant case, parties must still seek formal relief directly from the trial court.

“We acknowledge, as did the trial court, that the Boohers’ attorney was working under extraordinarily difficult circumstances—an expert who was out of the country and unable to complete his report in a timely fashion together with a major surgery endured by counsel certainly constituted cause to extend the deadline by three more weeks,” he wrote. “Our proverbial hands are tied, however, inasmuch as our Supreme Court has made it clear that the trial court simply had no discretion to accept the untimely filed documents, regardless of the circumstances.”

The Court of Appeals also affirmed summary judgment for Hampton Inn because the Boohers failed to show Hampton Inn breached its duty to them.
 

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  • The Defense Lawyer's Fraudulent Conduct Rewarded
    My issue with this ruling is that the trial court struck the filing as a result of defense counsel filing a Motion to Strike after the agreement. Doing so rewards fraudulent conduct by an officer of the court. Had the court struck the filing "sui sponte", I would have no issue with the ruling.

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  1. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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