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A man’s late response to a motion for summary judgment should not have been accepted, even though it wasn’t electronically delivered to counsel because of a “technical error,” the Court of Appeals of Indiana has ruled in reversing a lower court’s decision.
Leo Thorbecke filed a complaint with the Monroe Circuit Court after a medical review panel rendered a decision in favor of Dr. James Andry, whom Thorbecke accused of medical malpractice that resulted in his wife’s death.
Andry filed a motion for summary judgment in September 2022 based on the panel’s decision in his favor and Thorbecke’s lack of contrary expert evidence.
Thorbecke responded four days later 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.”
In the motion, Thorbecke indicated he had experts but preferred to not disclose their opinions to the defense prior to discovery.
He also acknowledged that under Indiana Trial Rule 56(C), he had 30 days from the date of the motion for summary judgment was filed to respond, but he asked the trial court to alter the time limit under T.R. 56(I).
Andry filed a response the next day, 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 the request should be denied for lack of good cause.
The trial court denied the motion to strike on Sept. 23, 2022.
The order indicated it was being distributed via e-service, but no email notice was sent to Thorbecke’s counsel, who learned of the denial on Oct. 19 when he saw it on the online chronological case summary.
That evening, Thorbecke filed a response to the motion for summary judgment. The response included two affidavits from physicians.
On Oct. 20, 2022, Andry moved to strike the response because it was filed two days after the 30-day deadline.
Thorbecke acknowledged the untimeliness of his response but asked the trial court to accept it because counsel didn’t receive notice of the denial, admittedly neglecting to calendar the deadline for responding to the motion.
Andry objected, arguing the “bright-line rule” established by caselaw precludes consideration of untimely filed summary judgment documents regardless of the circumstances.
On Nov. 9, 2022, the trial court granted leave to Thorbecke to file the response, citing “a technical error.”
On interlocutory appeal, the Court of Appeals reversed the ruling, finding the trial court lacked authority to deviate from the bright-line rule.
The bright-line rule, the Court of Appeals said, is “well established,” citing HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind. 2008).
“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,” the opinion stated, quoting from HomEq.
Thorbecke tried to avoid the bright-line rule by arguing that the trial court, under T.R. 72(E), had discretion to extend the response deadline because of the failed service of the order denying the motion to strike.
But the Court of Appeals disagreed.
“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,” the opinion says. “It is of no moment that notice was sent by mail rather than electronically.”
The case was remanded for further proceedings on the motion for summary judgment, with instructions that the trial court may not consider the late filings.
Chief Judge Robert Altice wrote the opinion. Judges Melissa May and Peter Foley concurred.
The case is James Andry v. Leo Thorbecke, 22A-CT-2942.
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