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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues