Erwin v. Roe
| Decision Date | 09 June 2010 |
| Docket Number | No. 16A01-0906-CV-312.,16A01-0906-CV-312. |
| Citation | 928 N.E.2d 609 |
| Parties | Ben and Shona ERWIN, Individually as Parents, Natural Guardians, and Next-of-Friend of Their Minor Child D.E., Appellants-Petitionerv.Brenda ROE, Appellee-Respondent. |
| Court | Indiana Appellate Court |
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W. Russell Sipes, Todd Barnes, George & Sipes, LLP, Indianapolis, IN, Attorneys for Appellants.
M. Michael Stephenson, Brady J. Rife, McNeely, Stephenson, Thopy & Harrold, Shelbyville, IN, Attorneys for Appellee.
Appellants-Plaintiffs, Benjamin (Ben) and Shona (Shona) Erwin, individually and as parents of their son D.E. (collectively, the Erwins), appeal the trial court's grant of summary judgment in favor of Appellee-Defendant, Brenda Roe (Roe).
We affirm in part, reverse in part and remand for further proceedings. 1
The Erwins raise four issues on appeal, which we consolidate and restate as the following two:
Roe has owned and rented out a house located in Westport, Indiana, since approximately 1997. On August 26, 2005, Roe entered into a written lease agreement with the Erwins, which was to begin September 1, 2005, and continue on a month to month basis. As part of the lease agreement, Roe was responsible for major repairs to the house, and the Erwins were responsible for minor maintenance such as mowing the grass and generally maintaining the property. The Erwins lived in the house with their four children until the end of October 2006.
Towards the end of September 2006, the Erwins began to notice that their two-year-old son, D.E., who had previously been diagnosed with mild development problems but had been making progress, was “backsliding.” (Appellant's App. Vol. II, p. 176). Shona described the backsliding as D.E. going from being able to talk and communicate as a normal two-year-old to talking like an eleven-month-old child. Around that same time, Ben discovered D.E. chewing on what looked like a piece of paper, but what turned out to be a paint chip. Ben removed the paint chip from D.E.'s mouth and vacuumed up the peeled paint and paint chips they found on the floor in his room. Believing this was a single occurrence, Ben and Shona did not seek medical attention. However, the next day, Shona found another paint chip in D.E.'s mouth. She called the Decatur County Department of Family and Children and they recommended she contact the Board of Health. When she called the Board of Health, they told her to contact D.E.'s pediatrician to have his blood checked for unsafe levels of lead. The Erwins had all the children checked for lead, however, only D.E. tested positive and had elevated levels of lead in his blood. Due to D.E.'s positive test, the Board of Health came to the Erwin's house and performed a lead-based paint screening on the paint located in D.E.'s room. The test came back positive for lead-based paint. The Board of Health then contacted the Environmental Protection Team to assess the entire property. The assessment concluded that all the woodwork, baseboards, trim around the windows, and bathtub tested positive for lead.
Shona contacted Roe to inform her that D.E. had tested positive for lead. Roe, who claimed she had no prior knowledge that the house contained lead-based paint, did not immediately offer to correct the problem. Shortly thereafter, the Erwins moved out of the house. Roe did not repaint the house until after the Erwins vacated the property. Prior to this incident, Roe had not received any reports of lead concerns from any of the previous tenants of that house.
On January 29, 2008, the Erwins filed a Complaint against Roe. On March 20, 2008, Roe filed her answer and affirmative defense. On November 20, 2008, Roe filed a motion for summary judgment, together with her memorandum of law and designation of evidence. On December 18, 2008, the Erwins responded to Roe's motion by requesting additional time to respond under Ind. Trial Rule 56(F) until the close of discovery. On December 23, 2008, Roe filed an objection, stating that the time in which the Erwins were permitted to file a response to Roe's motion for summary judgment had passed. Additionally, on January 8, 2009, Roe filed a motion for enlargement of time in order to answer the Erwins discovery requests.
On January 14, 2009, the trial court issued an Order granting Roe an enlargement of time until February 8, 2009. Additionally, the next day, the trial court issued another Order denying the Erwins motion for an extension of time and scheduled Roe's summary judgment hearing on March 5, 2009. On March 2, 2009, the Erwins filed another response to Roe's motion for summary judgment and also asked the trial court for a continuance on the summary judgment hearing in order to complete discovery, which the trial court then reset for April 27, 2009. On March 16, 2009, Roe filed a reply, indicating to the trial court that any evidence submitted by the Erwins after the 30-day response period be stricken and disregarded by the trial court as required under Indiana Trial Rule 56(C). On April 17, 2009, the Erwins filed an amended response to Roe's motion for summary judgment.
On April 27, 2009, the trial court conducted a hearing on Roe's motion for summary judgment. On May 27, 2009, the trial court issued its Order granting summary judgment in favor of Roe, summarily finding that there were no genuine issues of material fact in dispute.
The Erwins now appeal. Additional facts will be provided as necessary.
The Erwins contend that the trial court abused its discretion in denying their request to continue discovery. Specifically, they argue they were in the process of discovering facts to develop genuine issues of fact as to the question of Roe's knowledge of the lead-based paint and disclosure requirements. In response, Roe argues that the trial court was well within its discretion to deny the Erwins request for an extension of time to respond to Roe's motion for summary judgment.
Indiana Trial Rule 56(C) requires the non-moving party to respond as follows: “An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.” Should the non-moving party show by affidavit that he is unable to oppose the motion without discovery, then Ind. Trial Rule 56(F) provides:
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.
Similarly, Ind. Trial Rule 56(I) allows “[f]or cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit.” Thus, read together, the trial court may, in its discretion, order a continuance pursuant to Indiana Trial Rule 56(F) and alter any time limits set forth in the rules pursuant to Indiana Trial Rule 56(I). Thayer v. Gohil, 740 N.E.2d 1266, 1268 (Ind.Ct.App.2001). To establish that the trial court abused its discretion, the party appealing the ruling must show both that good cause existed to grant the motion and that it was prejudiced by the denial of the motion. Troyer v. Troyer, 867 N.E.2d 216, 219 (Ind.Ct.App.2007).
Here, the Erwins failed to show that the trial court abused its discretion. They filed their Complaint against Roe on January 29, 2008. Roe responded by filing a motion for summary judgment on November 20, 2008, thus, requiring the Erwins response due by Monday, December 22, 2008. However, on December 18, 2008, pursuant to Indiana Trial Rule 56(F), the Erwins filed their response to Roe's motion for summary judgment by requesting an extension of time and attaching an affidavit from their attorney stating that the Erwins were still in the process of discovery. While this motion was pending before the trial court, Roe not only filed an objection to the Erwins request for a continuance on December 23, 2008, but also filed a motion for an enlargement of time to respond to the Erwins discovery requests on January 8, 2009. The trial court, in its discretion, granted Roe's motion for an enlargement of time and denied the Erwins December 18, 2008 request for additional time pursuant to T.R. 56(F). While these rulings by the trial court may appear to have been inconsistent, as previously stated, the trial court was well within its discretion to deny the Erwins continuance.
Furthermore, because the trial court was within its discretion to deny the Erwins motion, the March 3 and April 17 responses filed by the Erwins after the trial court's January 15, 2009 Order denying their motion were filed outside of the thirty day response period and thus cannot be considered as designated evidence by this court. See Ind. Trial Rule 56(H). As such, we can only consider evidence designated by Roe in her motion for summary judgment.
However, that said, we also note that Roe did not properly designate certain evidence in her designation of evidence as included in her motion for summary judgment. In her Designation of Evidence in Support of Motion for Summary Judgment, Roe designated “[e]xcerpts of deposition of Benjamin Erwin as specifically designated in Roe's Memorandum in Support of Motion for Summary Judgment.” (Appellant's App. p. 65). Roe designated Shona's deposition the same way.
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