Desai v. Croy
| Decision Date | 06 April 2004 |
| Docket Number | No. 91A02-0306-CV-512.,91A02-0306-CV-512. |
| Citation | 805 N.E.2d 844 |
| Parties | Mukesh I. DESAI, M.D., Appellant-Defendant, v. Sherry L. CROY, Personal Representative of the Estate of Danny L. Croy, Jr., Deceased, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Steven J. Cohen, Kathryn A. Elias, Zeigler, Cohen & Koch, Indianapolis, IN, Attorneys for Appellant.
Jay T. Hirschauer, Hirschauer & Hirschauer, Logansport, IN, Attorney for Appellee.
Mukesh I. Desai, M.D. brings this interlocutory appeal from the trial court's decision to allow Sherry Croy to respond to his Motion for Summary Judgment, as well as the court's subsequent denial of that motion. We address the following issues on review:
1. Whether the trial court erred when it allowed Croy to respond to Dr. Desai's summary judgment motion when Croy had failed to file a response or seek an extension of time within the thirty-day period allotted under Trial Rule 56(C).
2. Whether Dr. Desai is entitled to summary judgment.
We reverse and remand.
On October 27, 1997, Croy filed with the Indiana Department of Insurance a proposed complaint against Dr. Desai and Charter Lafayette Behavioral Health System ("Charter") alleging that their negligence resulted in her husband committing suicide. The parties selected a Medical Review Panel, which eventually rendered an opinion in March 2001 that Croy then filed her Complaint in the White Circuit Court in June 2001.
On July 30, 2001, Dr. Desai moved for summary judgment and designated as evidence the Medical Review Panel Opinion that he had not failed to meet the applicable standard of care. The trial court scheduled Dr. Desai's motion for a hearing on October 1, 2001. Then, on August 20, Charter also moved for summary judgment and filed a request for a joint summary judgment hearing because both of the defendants' motions were based on the Medical Review Panel Opinion. The trial court granted Charter's request and scheduled both motions for a hearing on October 1.
Croy did not file any motions or affidavits within thirty days from the date of either Dr. Desai or Charter's motions for summary judgment. Rather, on September 25, Croy moved to continue the hearing, and the court granted her motion and rescheduled the joint hearing for December 10. On October 1, Dr. Desai and Charter filed a Joint Advisory Memorandum pointing out that Croy had failed to file a response, opposing affidavits, or request an extension of time to file either a response or affidavits, within thirty days of their summary judgment motions. As a result, Dr. Desai and Charter alleged that the court could only consider the evidence the defendants had designated in ruling on their summary judgment motions.
On December 6, Croy filed another request to continue the summary judgment hearing, which the trial court granted. The court then set the joint hearing for December 17. On December 14, three days prior to the hearing, Croy filed a Motion for Court to Permit Filing of Affidavits in Response to Defendants' Motions for Summary Judgment, Plaintiff's Memorandum of Law in Response to Motions for Summary Judgment, and Plaintiff's Designation in Support of Response to Motions for Summary Judgment, which included the affidavits of Croy, Reverend Steve Birch, Ned P. Masbaum, M.D., and Larry M. Davis, M.D. On December 17, Dr. Desai and Charter filed a Joint Motion to Strike Croy's designated evidence as untimely under Trial Rule 56(C).
The parties appeared on December 17, and during that hearing, Croy asked the trial court to exercise the discretion afforded to it under Trial Rule 56(I) to allow her to file her affidavits. Croy's counsel told the court that he had not filed a response within thirty days of the filing of the summary judgment motions because he had been involved in several jury trials during that time. Counsel also asserted that the information contained in the affidavits Croy sought to submit contained facts already known by Dr. Desai and Charter.
Following that hearing, the trial court issued two orders dated December 17, one of which granted Croy's motion to permit the filing of affidavits in response to the defendants' summary judgment motions. The other order provided in relevant part:
The Court, being duly advised, having reviewed the record of proceedings, and having considered the statements and arguments of counsel, now FINDS and ORDERS that the Plaintiff's Motion to Permit Filing Of Affidavits In Response To Defendants' Motions For Summary Judgment should and shall be granted. Pursuant to Trial Rule 56, the Court finds that the Plaintiff should be permitted the opportunity to file Plaintiff's Affidavits late, so that the defendants' Summary Judgment Motions may be heard and determined on the merits. [See] Order permitting Plaintiff's Affidavits to be filed. The Defendants' Joint Motion To Strike is denied.
The Court, being duly advised, having reviewed the record of proceedings, and having considered the statements and arguments of counsel, now finds that the Defendants should have an opportunity to respond to the Affidavits filed by the Plaintiff designated as evidence in response to the Defendant[s]' Summary Judgment Motions. Therefore, the Court grants the Defendants fourteen (14) days to file such response. Further, any party may request the Court to schedule a further oral argument on the pending Motions For Summary Judgment within seven (7) days after the time period for filing responses. If there is no further oral argument required, the Court shall rule on the pending Motions For Summary Judgment summarily on the record of proceedings without further hearing.
Dr. Desai and Charter moved the court to certify its rulings for interlocutory appeal, and the court denied that motion.
The trial court eventually held a hearing on Dr. Desai and Charter's summary judgment motions in April 2003. On April 30, the trial court granted Charter's motion and denied Dr. Desai's motion. The court then granted Dr. Desai's motion to certify the relevant orders for interlocutory appeal, and this court accepted jurisdiction in July 2003.
It is undisputed that Croy did not file affidavits, designate any other evidence, or move for an extension of time in which to respond within thirty days after Dr. Desai moved for summary judgment. Instead, Croy filed two motions to continue the summary judgment hearing, both of which were filed more than thirty days from the date of Dr. Desai's motion. She then moved for permission to submit affidavits in response to Dr. Desai's motion three days before the summary judgment hearing, which was held nearly five months after Dr. Desai's motion. The primary dispute between the parties in this case is whether the trial court had discretion under Trial Rule 56(I) to allow Croy to respond to Dr. Desai's motion three days before the hearing, or whether Trial Rule 56(I) affords trial courts discretion to alter time limits only where the non-moving party has filed a response, or requested an extension of time in which to file a response, to the summary judgment motion within thirty days of the date the motion was filed.
Trial Rule 56 provides in relevant part:
In Seufert v. RWB Medical Income Properties I Ltd. Partnership, 649 N.E.2d 1070, 1073 (Ind.Ct.App.1995), we considered Trial Rule 56 in its entirety, specifically interpreting 56(F) and (I). Despite the nonmoving party's argument on appeal that it was within the trial court's discretion to order a continuance or alter any time limits found within Rule 56, we concluded that the remedies provided by 56(F) and (I) were not available to a nonmoving party who has failed to oppose or respond to the motion within the thirty-day limit established by 56(C). In particular, we held:
T.R. 56 requires an adverse party to respond within 30 days by either (1) filing affidavits showing issues of material fact, (2) filing his own affidavit indicating why the facts necessary to justify his opposition are...
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