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Court clarifies responses under T.R. 56(I)

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The Indiana Court of Appeals used a decision today to clarify that when a nonmoving party has received an enlargement of time pursuant to Indiana Trial Rule 56(I), any response must be made within the additional time period granted by the trial court.

The issue arose in Marvin Jay Miller, M.D. v. Tiffany Brook Yedlowski, deceased, Mario Yedlowski and Kim Rinehart, No. 49A02-0901-CV-78, in which Dr. Marvin Jay Miller appealed of the denial of his motion for summary judgment. Tiffany Yedlowski's parents, Mario Yedlowski and Kim Rinehart, filed a complaint against Miller following the death of Tiffany while under his care at Larue Carter Hospital in Indianapolis.

Miller filed a motion for summary judgment; the parents filed a motion for enlargement of time to respond to his motion. They were granted a Sept. 4, 2008 deadline to respond to the motion.

Six days after the deadline, the parents filed a second motion for enlargement of time, requesting five more days to get their expert's report. Miller again filed for summary judgment, arguing he was entitled to it as a matter of law since the plaintiffs' hadn't responded or filed a continuance within the time limit set by the trial court.

The trial court denied Miller's motion, granted the parents' second motion for enlargement of time, and then allowed the parents to file their response more than ten days after their Sept. 4 deadline.

On interlocutory appeal, the Court of Appeals determined the trial court erred in granting the second motion for enlargement of time because it wasn't filed by the deadline imposed by the court. The Indiana Supreme Court, in HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98 (Ind. 2008), established a bright-line rule that prohibits a trial court from considering summary judgment filings after the 30-day period, wrote Judge Nancy Vaidik.

Even though the plaintiffs filed their first motion within the 30-day period, their second one wasn't within the time period defined by the first motion for enlargement of time, so their response shouldn't have been allowed, per Thayer v. Gohil, 740 N.E.2d 1266, 1269 (Ind. Ct. App. 2001).

"The rationale behind the rule requiring a nonmoving party to respond to a motion for summary judgment ... within thirty days does not vanish because the trial court has happened to grant one extension of time," wrote the judge. "That is, the nonmoving party should not be rewarded and relieved from the restriction of responding within the time limit set by the court because he or she has had the good fortune of one enlargement of time."

Because the parents' response was filed late, it can't be considered by the trial court and leaves no evidence to oppose Miller's motion for summary judgment. The appellate court remanded for entry of summary judgment in favor of the doctor.

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  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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