James Andry v. Leo Thorbecke

• Court: Indiana Court of Appeals
• Decided: August 28, 2023
• Docket: 22A-CT-02942
• Status: Published

Opinion

FILED Aug 28 2023, 9:32 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Courtney David Mills Edward R. Moor Patrick S. McCarney Chicago, Illinois Alexis R. Jenkins Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James Andry, August 28, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CT-2942 v. Appeal from the Monroe Circuit Court Leo Thorbecke, The Honorable Holly M. Harvey, Appellee-Plaintiff Judge Trial Court Cause No. 53C06-2208-CT-1751

Opinion by Chief Judge Altice Judges May and Foley concur.

Altice, Chief Judge.

Case Summary [1] In this interlocutory appeal, James M. Andry, M.D. challenges a ruling by the

trial court that permitted Leo B. Thorbecke, as administrator of the estate of his

Court of Appeals of Indiana | Opinion 22A-CT-2942 | August 28, 2023 Page 1 of 11 deceased wife Chrystyna, to file a response to Dr. Andry’s motion for summary

judgment two days after it was due.

[2] We reverse and remand.

Facts & Procedural History [3] Chrystyna died from heat stroke in June 2019, and Thorbecke subsequently

alleged that her death stemmed from Dr. Andry’s medical malpractice. The

Medical Review Panel (the Panel) rendered a decision in favor of Dr. Andry on

Thorbecke’s proposed complaint. Then, on August 30, 2022, Thorbecke timely

filed a complaint for damages with the trial court.

[4] On September 15, 2022, Dr. Andry filed a motion for summary judgment

(MSJ) based on the Panel’s unanimous decision in his favor and Thorbecke’s

lack of contrary expert evidence. Thorbecke responded on September 19 with a

“Motion to Strike, or in the Alternative, to Enter and Continue Defendant’s

Motion for Summary Judgment Until Discovery is Initiated and Completed”

(Motion to Strike). Appellant’s Appendix at 53. In the Motion to Strike,

Thorbecke indicated that he had experts but preferred not to disclose these

experts’ opinions to the defense prior to discovery being conducted. Relevant

here, Thorbecke acknowledged that under Ind. Trial Rule 56(C) he had thirty

days from September 15 to respond to the MSJ, but he asked for the trial court

to alter this time limit by its authority under T.R. 56(I):

Plaintiffs asks that the motion for summary judgment be entered and continued until the initiation and completion of discovery in

Court of Appeals of Indiana | Opinion 22A-CT-2942 | August 28, 2023 Page 2 of 11 this case. The Court has the discretion to “alter any time limit set forth in this rule” in addressing a motion for summary judgment. [T.R.] 56(I). Defendant was fully aware that Plaintiff … intended to disclose experts in the normal course of discovery. In addition, Plaintiff asks that the Court order the parties to confer and submit a case management order specifying discovery deadlines, including the deadlines for dispositive motions….

Appellant’s Appendix at 56.

[5] The next day, Dr. Andry filed a response, arguing that Thorbecke was

“essentially asking for an indefinite extension of time to respond to Defendant’s

MSJ pursuant to Trial Rule 56(I)” and that such an extension should be denied

for lack of good cause. Id. at 75. Dr. Andry also asserted that the delay would

serve no purpose because Thorbecke claimed to have experts and could respond

to the MSJ.

[6] On September 23, the trial court denied the Motion to Strike. Though the order

indicated that it was being distributed “Via E-Service,” no email notice was sent

to Thorbecke’s counsel. Id. at 80. The order was entered on the Chronological

Case Summary (CCS) with service to the parties indicated as follows:

Id. at 4.

Court of Appeals of Indiana | Opinion 22A-CT-2942 | August 28, 2023 Page 3 of 11 [7] Thorbecke’s counsel first learned of the denial on October 19, when he accessed

the online docket for another purpose. As a result, that evening, Thorbecke

filed his response to the MSJ (Response). Included in his designated evidence

were two affidavits from physicians opining that Dr. Andry breached the

standard of care and that the breaches, to a reasonable degree of medical

certainty, caused Chrystyna’s death.

[8] The next morning, October 20, Dr. Andry moved to strike the Response, as it

was filed two days after the thirty-day deadline established in T.R. 56(C). This

resulted in a flurry of filings by the parties that day, with more on October 24.

Thorbecke’s verified filings acknowledged the untimeliness but asked the trial

court to accept the Response because counsel had not received notice of the

denial of the Motion to Strike and had been waiting for the ruling, admittedly

neglecting to calendar the deadline for responding to the MSJ. 1 Upon belatedly

discovering the denial of the Motion to Strike, Thorbecke filed the Response

that same day.

[9] Dr. Andry objected and argued that the trial court had no discretion to grant

Thorbecke leave to file the belated Response. He asserted that the bright-line

1 Thorbecke’s counsel verified that he contacted the Circuit Court Clerk and the trial court’s assistant and learned that “the mycase.IN.gov system did not contain his email address,” despite counsel having provided it when he registered to use the system. Id. at 122. Counsel then “called the Office of Court Technology to get this issue fixed.” Id.

Court of Appeals of Indiana | Opinion 22A-CT-2942 | August 28, 2023 Page 4 of 11 rule established by caselaw precluded the consideration of untimely filed

summary judgment documents regardless of the circumstances.

[10] On November 9, 2022, the trial court issued the order now being appealed:

Court reviews file and available information related to e- notification. Due to a technical error, whose origin cannot be ascertained, the Court grants leave to Plaintiff to file the Response to Motion for Summary Judgment filed October 19, 2022. Defendant shall have to and including November 25, 2022 in which to file a Reply Brief.

Id. at 10. On Dr. Andry’s motion, the trial court certified the order for

interlocutory appeal. This court accepted jurisdiction of the interlocutory

appeal on January 13, 2023.

Discussion & Decision [11] Pursuant to T.R. 56(C), “[a]n adverse party shall have thirty (30) days after

service of the [summary judgment] motion to serve a response and any

opposing affidavits.” There is, however, leeway built into T.R. 56:

(F) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

***

Court of Appeals of Indiana | Opinion 22A-CT-2942 | August 28, 2023 Page 5 of 11 (I) Alteration of Time. For cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit.

[12] “Apart from the text of Rule 56 itself, our case authority has established the

procedure governing the admissibility of evidence that may be considered on a

motion for summary judgment.” Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d

967, 972 (Ind. 2014). The following bright-line rule is well established:

When a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response, requesting a continuance under Trial Rule 56(I), or filing an affidavit under Trial Rule 56(F), the trial court cannot consider summary judgment filings of that party subsequent to the 30-day period.

Id. (quoting HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008)).

“In other words, 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.” Desai

v. Croy, 805 N.E.2d 844, 850 (Ind. Ct. App. 2004), trans. denied; see also Starks

Mech., Inc. v. New Albany-Floyd Cnty. Consol. Sch. Corp., 854 N.E.2d 936, 940

(Ind. Ct. App. 2006) (“Thus, even though Starks was merely one day late, Desai

stands for the proposition that the trial court had no discretion to allow Starks

to file its response and designated evidence.”).

[13] Further, where a nonmovant timely seeks and obtains an extension of time to

respond, the bright-line rule continues to apply to the new filing deadline. See

Court of Appeals of Indiana | Opinion 22A-CT-2942 | August 28, 2023 Page 6 of 11 E. Point Bus. Park, LLC v. Priv. Real Est. Holdings, LLC, 49 N.E.3d 589, 600 (Ind.

Ct. App. 2015) (holding that “once the already-extended deadline had passed,

the trial court had no discretion to further extend it”). “That is, not only must a

nonmovant file a response or request for a continuance during the initial thirty-

day period, but the nonmovant must also file a response, file an affidavit

pursuant to T.R. 56(F), or show cause for alteration of time pursuant to T.R.

56(I) during any additional period granted by the trial court.” Id. at 599-600

(internal quotation marks omitted) (quoting Miller v. Yedlowski, 916 N.E.2d 246,

251 (Ind. Ct. App. 2009), trans. denied). We have explained that the rationale

behind the bright-line rule “does not vanish because the trial court has

happened to grant one extension of time,” as “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.” Miller, 916 N.E.2d at 251.

[14] In sum, the bright-line rule is that “a trial court may not consider untimely filed

materials opposing summary judgment.” HomEq Servicing Corp., 883 N.E.2d at

96. This is true regardless of the circumstances. See Booher v. Sheeram, LLC, 937

N.E.2d 392, 395 (Ind. Ct. App. 2010) (“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.”), trans. denied.

[15] Thorbecke does not dispute that he responded to the MSJ late, but he seeks to

avoid the bright-line rule by arguing that, under Ind. Trial Rule 72(E), the trial

Court of Appeals of Indiana | Opinion 22A-CT-2942 | August 28, 2023 Page 7 of 11 court had discretion to extend the response deadline due to the failed service of

the order denying the Motion to Strike. He argues that affirming the trial court

on the facts here would have no impact on the general application of the bright-

line rule “because none of the cases that either formulated or applied the rule

involved an occasion for the trial court to exercise its discretion to fix a notice

problem for good cause.” Appellee’s Brief at 10.

[16] T.R. 72(D) imposes two duties on trial court clerks: 1) upon the notation in the

CCS of a ruling on a motion, an order, or a judgment, immediately serve a copy

of the entry on each party 2 and 2) make a record of such service. “The CCS

constitutes that record.” Penley v. Penley, 145 N.E.3d 874, 878 (Ind. Ct. App.

2020).

[17] T.R. 72(E) is the “sole vehicle” for a party to obtain relief when seeking to

extend a filing deadline based on a claim that the clerk failed to properly serve

an order. See Penley, 145 N.E.3d at 878 (quoting Collins v. Covenant Mut. Ins.

Co., 644 N.E.2d 116, 117 (Ind. 1994)). It provides:

Effect of Lack of Notice. Lack of notice, or the lack of the actual receipt of a copy of the entry from the Clerk shall not affect the time within which to contest the ruling, order or judgment, or authorize the Court to relieve a party of the failure to initiate proceedings to contest such ruling, order or judgment, except as provided in this section. When the service of a copy of

2 Service shall comply with Ind. Trial Rule 5(B), which allows for service by personal delivery, mailing, or electronic means. Further, pursuant to T.R. 72(B), service at either counsel’s mailing address or electronic mail address “shall be deemed sufficient.”

Court of Appeals of Indiana | Opinion 22A-CT-2942 | August 28, 2023 Page 8 of 11 the entry by the Clerk is not evidenced by a note made by the Clerk upon the Chronological Case Summary, the Court, upon application for good cause shown, may grant an extension of any time limitation within which to contest such ruling, order or judgment to any party who was without actual knowledge, or who relied upon incorrect representations by Court personnel. Such extension shall commence when the party first obtained actual knowledge and not exceed the original time limitation.

In other words, if the CCS is clear on its face that notice was sent – either by

mail or electronically – then a challenge is precluded even if counsel did not

actually receive such notice. See Markle v. Ind. State Tchrs. Ass’n, 514 N.E.2d

612, 614 (Ind. 1987) (“If the docket book is clear on its face that notice was

mailed, then such a challenge is precluded.”); Collins, 644 N.E.2d at 117-18

(“Trial Rule 72(E) plainly states that only if the CCS does not contain evidence

that a copy of the court’s entry was sent to each party may a party claiming not

to have received such notice petition the trial court for an extension of time to

initiate an appeal.”); Penley, 145 N.E.3d at 879 (“Trial Rule 72(E) applies where

the CCS does not contain evidence that a copy of the trial court’s order was sent

to each party.”).

[18] Here, the CCS plainly indicates that service of the order denying the Motion to

Strike was mailed to Thorbecke’s counsel the day it was issued. 3 It is of no

3 Thorbecke appears to cite to Taylor v. State, 939 N.E.2d 1132, 1136 (Ind. Ct. App. 2011) for the proposition that the CCS entry must indicate the address to which the order was mailed. Taylor does not so hold, and the circumstances in that case are not like this case. See id. at 1136-37 (CCS was “riddled with inaccuracies” and though pro se petitioner had notified court of new mailing address, CCS did not affirmatively show notice of

Court of Appeals of Indiana | Opinion 22A-CT-2942 | August 28, 2023 Page 9 of 11 moment that notice was sent by mail rather than electronically. See T.R. 72(B).

Thus, even if T.R. 72(E) could apply to extend the deadline for a summary

judgment response, which Dr. Andry disputes, 4 Thorbecke cannot obtain such

relief because the CCS sufficiently demonstrates that notice of the order was

mailed. See Collins, 644 N.E.2d at 118 (service evidenced by note in the CCS

and so the trial court erred in granting relief under T.R. 72(E)).

[19] In sum, the trial court lacked authority to deviate from the bright-line rule

requiring the timely filing of materials opposing summary judgment, and T.R.

72(E) offers no relief to Thorbecke under the circumstances presented.

Accordingly, we reverse the trial court’s order of November 9, 2022, which

improperly granted Thorbecke leave to file his untimely response, and remand

for further proceedings on the MSJ in which the trial court may not consider

the late filings.

[20] Reversed and remanded.

the change, CCS reflected that a subsequent order was sent to the old address, and CCS did not indicate which address was used when notice of the denial of post-conviction relief was mailed to petitioner). 4 Dr. Andry argues that the rule is inapplicable in this instance because Thorbecke was not seeking an extension of time to contest the order denying the Motion to Strike but, rather, sought leave to belatedly respond to an entirely separate motion, the MSJ. Further, Dr. Andry contends that the alleged failure to serve the order denying the Motion to Strike did not cause Thorbecke to miss the summary judgment response deadline, which was known to Thorbecke and at all times remained October 17, 2022. Cf. McGuire v. Century Sur. Co., 861 N.E.2d 357, 360 (Ind. Ct. App. 2007) (rejecting claim that belated denial of motion for extension of time to respond to summary judgment resulted in a due process violation because counsel should not have assumed the motion would be granted and “without having received immediate notice from the trial court that the motion would be granted, counsel should have assumed it would be denied and acted accordingly”).

Court of Appeals of Indiana | Opinion 22A-CT-2942 | August 28, 2023 Page 10 of 11 May, J. and Foley, J., concur.

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