Coleman v. Charles Court, LLC

• Citation: 797 N.E.2d 775
• Decision Date: 16 October 2003
• Docket Number: No. 18A02-0212-CV-994.,18A02-0212-CV-994.
• Parties: Carol COLEMAN, Personal Representative of the Estate of Junita Martin, Appellant-Plaintiff, v. CHARLES COURT, LLC, Minnetrista Corporation, Ronald D. Clark, College Park Apartments, Lynn Garrison, Mark Burnett, Estate of Cecelia B. Garrett, by Special Representative John Feick, Estate of Donald Mark Garrett, by Special Representative John Feick, Estate of Patricia Ann Garrett, by Special Representative John Feick, and Indiana Associates, Ltd., L.P., Appellees-Defendants.
• Court: Court of Appeals of Indiana

797 N.E.2d 775

Carol COLEMAN, Personal Representative of the Estate of Junita Martin, Appellant-Plaintiff, v. CHARLES COURT, LLC, Minnetrista Corporation, Ronald D. Clark, College Park Apartments, Lynn Garrison, Mark Burnett, Estate of Cecelia B. Garrett, by Special Representative John Feick, Estate of Donald Mark Garrett, by Special Representative John Feick, Estate of Patricia Ann Garrett, by Special Representative John Feick, and Indiana Associates, Ltd., L.P., Appellees-Defendants.

No. 18A02-0212-CV-994.

Court of Appeals of Indiana.

October 16, 2003.

Rehearing Denied December 16, 2003.

Stacy L. Kelley, Lewis & Hill, Indianapolis, IN, Attorney for Appellant.

Charles Court, L.L.C.: Dane L. Tubergen, Scott L. Bunnell, Fort Wayne, IN, Minnetrista Corporation: Thomas B. Bays, Henderson Daily Withrow & DeVoe, Gary L. Shaw, Skiles Hansen Cook & DeTrude, Indianapolis, IN, Attorneys for Appellees.

OPINION

SHARPNACK, Judge.

Carol Coleman, personal representative of the estate of Junita Martin ("the Estate") appeals the trial court's grant of summary judgment in favor of Charles Court, LLC ("Charles Court"), Minnetrista Corporation ("Minnetrista"), and Lynn Garrison, Mark Burnett, the estate of Cecilia B. Garrison, by personal representative, the estate of Donald Garrett, by personal representative, and the estate of Patricia Ann Garrett, by personal representative (collectively "Garrison"). We will refer to the Appellees collectively as "the Defendants." The Estate raises seven issues,¹ which we consolidate and restate as:

I. Whether the trial court abused its discretion by denying the Estate's motion for enlargement of time to file its response to the motions for summary judgment;

II. Whether the trial court abused its discretion by denying the Estate's motion to strike and motion for a hearing to determine the admissibility of the opinions contained in the affidavit of Lawrence J. Wheat, M.D.;

III. Whether the trial court abused its discretion by overruling the Estate's objection to the October 10, 2002 hearing date on the basis that it violated Ind. Trial Rule 56(C);

IV. Whether the trial court abused its discretion by striking the Estate's provisional response and designated materials; and

V. Whether the trial court abused its discretion by granting Charles Court's and Minnetrista's joint motion for summary judgment and Garrison's motion for summary judgment.

We affirm.

The relevant facts follow. Junita Martin was employed by Action, Incorporated ("Action"), a social services agency located in Delaware County, Indiana, from 1979 until October 2000. Until 1990, Action's office was located at 304 South Walnut in Muncie, Indiana.

In March of 1958, Patricia Ann Garrett and Donald Mark Garrett inherited 304 South Walnut Street as tenants in common. In 1960, Donald Mark Garrett died intestate and his interest in the real estate passed equally to his mother, Cecelia B. Garrett, and his sister, Patricia Ann Garrett. In August 1992, Patricia Ann Garrett died intestate and her interest in the real estate passed equally to her two children, Lynn Garrison and Mark Burnett. In 1993, Cecilia B. Garrett died intestate and her interest in the real estate passed equally to her grandchildren, Lynn Garrison and Mark Burnett.

In 1990, Action moved its office from 304 South Walnut to 201 East Charles. In 1986, Minnetrista owned the property at 201 East Charles, and, in December 1996, Charles Court acquired the property from Minnetrista.

In May 1998, Martin was diagnosed with histoplasmosis² and on March 29, 2000, she filed her original complaint in this matter. On March 6, 2002, after approximately two years of litigation, Martin died.

On December 4, 2001, the trial court held a pretrial conference. Following the pre-trial conference, the trial court issued a pretrial order that provided, in pertinent part, that:

7. Counsel for Defendants advise the Court that Motions for Summary Judgment are anticipated. Parties to file any Motions for Summary Judgment on or before August 1, 2002.

8. The Court will conduct hearing upon any pending Motions for Summary Judgment on October 10, 2002, at 1:30 p.m.

Appellant's Appendix at 55 (emphasis in original). On June 14, 2002, the Estate filed a fifth amended complaint against Charles Court, Minnetrista, and Garrison.³ The complaint alleged, in part, that:

* * * * * * 10. While Martin was employed by or residing upon premises of the Defendants, Martin was exposed to hazardous airborne spores from "bird droppings", high levels of carbon dioxide, mold, and inadequate ventilation causing a fungal infection which ultimately lead to her death.

* * * * * *

14. Defendants knew of or should have known that the hazardous airborne spores from "bird droppings", high levels of carbon dioxide, mold, and inadequate ventilation had toxic, poisonous and highly deleterious effect upon the health of persons inhaling, ingesting, or otherwise absorbing them.

* * * * * *

20. At all material times, Defendants negligently failed to maintain, manage, inspect, survey, or control their premises or to abate, correct or warn of the existence of the dangerous conditions and hazards on their premises.

21. The breach by the Defendants of their duties to Martin was a direct and proximate cause of Martin's development and contraction of the fungal infection known as histoplasmosis which resulted in damages and death.

Id. at 41-47. On June 25, 2002, the trial court conducted a hearing and subsequently issued an order that provided, in part, that: "The Court Grants extension of deadline, and the Court's Order on Conduction of Pre-Trial Conferences is now Amended in that the deadline for filing dispositive Motions is now extended to September 1, 2002." Id. at 60. The trial court also stated that this matter was set for "hearing upon any pending Motions for Summary Judgment on October 10, 2002." Id. at 59.

On August 30, 2002, Charles Court and Minnetrista filed a joint motion for summary judgment. On that same day, Garrison also filed a motion for summary judgment. On September 25, 2002, the Estate filed a motion for enlargement of time to file plaintiff's response to motions for summary judgment pending the completion of discovery and pending a hearing to determine the admissibility of the opinions contained in the affidavit of Lawrence J. Wheat, M.D. ("Dr. Wheat"). On the same day, the Estate also filed an objection and motion for a hearing to determine the admissibility of the opinions contained in the affidavit of Dr. Wheat. The trial court denied both of the Estate's motions. On October 4, 2002, the Estate filed a motion to reconsider the order denying its motion for enlargement to file plaintiff's response to motions for summary judgment. In the Estate's motion to reconsider, it objected for the first time to the October 10, 2002 hearing date.⁴ The trial court denied the Estate's motion to reconsider. On October 8, 2002, the Estate filed a provisional response and designation of evidence in support of its response to the Defendants' motions for summary judgment.

On October 10, 2002, the trial court held a hearing. During the hearing, the Estate again objected to the hearing date on the grounds that it violated Ind. Trial Rule 56(C) and (I), which provide that "[t]he court shall conduct a hearing on the motion which shall be held not less than ten (10) days after the time for filing the response," and that "[t]he Court, for cause found, may alter any time limit set forth in this rule." The Estate argued that because its reply brief was due on October 2, 2002, the October 10, 2002 hearing date failed to comply with Ind. Trial Rule 56(C). The trial court again overruled the Estate's objection the hearing date. The Defendants made a motion to strike the Estate's provisional response and designated materials, which the trial court granted. Following the hearing, the trial court entered orders granting Charles Court's and Minnetrista's joint motion for summary judgment, as well as Garrison's motion for summary judgment.

I.

The first issue is whether the trial court abused its discretion by denying the Estate's motion for enlargement of time to file its response to the motions for summary judgment. The Estate's motion for enlargement of time to file its response to the motions for summary judgment asserted, in part, that:

* * * * * *

2. On or before September 1, 2002, each of the Defendants filed a motion for summary judgment on Plaintiff's claims. Supporting each motion for summary judgment, the Defendants designated the Affidavit of Lawrence J. Wheat, M.D., an expert specifically employed by the Defendants to offer expert opinion testimony in this action. Among his opinions, Dr. Wheat's Affidavit, dated August 28, 2002, contains his opinion that "no medical basis exists to support [Plaintiff's] allegation that Martin acquired histoplasmosis at any of the Defendants' premises."

3. On July 31, 2002, the Plaintiff served Plaintiff's Discovery Requests of Expert Witness . . . , which were directed to each Defendant in this action, (hereinafter, "Plaintiff's expert discovery requests").

4. Each of the Defendants, with the exception of Minnestrista, sought an extension of time to file a response to Plaintiff's expert discovery requests until a date after Defendant had filed its motion for summary judgment. Upon serving a response to Plaintiff's expert discovery requests, all the Defendants referred to Dr. Wheat's Affidavit in lieu of answering the discovery request with th [sic] exception of Defendant Indiana Associates and Ronald Clark who have not filed a response to Plaintiff's discovery requests. However, we anticipate, based on those Defendants' motions for summary judgment, they will rely on the affidavit of Dr. Wheat as well.

5. Plaintiff first learned of Dr. Wheat's opinions when the undersigned reviewed the materials submitted in support of the Defendants [sic] motions for summary judgment...