ILNews

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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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