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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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