ILNews

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. A sad end to a prolific gadfly. Indiana has suffered a great loss in the journalistic realm.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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