ILNews

Despite out-of-court agreement, COA upholds motion to strike

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

  • 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.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Based on several recent Indy Star articles, I would agree that being a case worker would be really hard. You would see the worst of humanity on a daily basis; and when things go wrong guess who gets blamed??!! Not biological parent!! Best of luck to those who entered that line of work.

  2. I was looking through some of your blog posts on this internet site and I conceive this web site is rattling informative ! Keep on posting . dfkcfdkdgbekdffe

  3. Don't believe me, listen to Pacino: https://www.youtube.com/watch?v=z6bC9w9cH-M

  4. Law school is social control the goal to produce a social product. As such it began after the Revolution and has nearly ruined us to this day: "“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men [i.e., politicians] are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.” ? Alexis de Tocqueville, Democracy in America

  5. Attorney? Really? Or is it former attorney? Status with the Ind St Ct? Status with federal court, with SCOTUS? This is a legal newspaper, or should I look elsewhere?

ADVERTISEMENT