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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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