218 N.E.3d 600
Ind. Ct. App.2023Background
- Decedent Chrystyna died in June 2019; her husband Thorbecke later sued Dr. James Andry for medical malpractice after a Medical Review Panel unanimously favored Andry. Thorbecke filed a complaint in court on August 30, 2022.
- Andry filed a motion for summary judgment (MSJ) on September 15, 2022, relying on the Panel decision and Thorbecke’s lack of contrary expert evidence.
- On September 19 Thorbecke filed a "Motion to Strike, or in the Alternative, to Enter and Continue Defendant’s Motion for Summary Judgment Until Discovery is Initiated and Completed," asking the court under T.R. 56(I) to extend the response deadline; Andry opposed and the court denied the motion on September 23.
- The clerk’s CCS entry indicated service of the denial (mailed), but no e-mail notice was sent; Thorbecke’s counsel did not learn of the denial until viewing the docket on October 19 and filed his response to the MSJ that evening (two days after the 30‑day deadline).
- The response included two expert affidavits. The trial court later granted leave to file the late response, citing a technical e‑notification error; Andry obtained interlocutory review. The Court of Appeals reversed.
Issues
| Issue | Plaintiff's Argument (Thorbecke) | Defendant's Argument (Andry) | Held |
|---|---|---|---|
| Whether the trial court could accept Thorbecke’s untimely response to the MSJ | Court had discretion under T.R. 72(E) and 56(I) to extend time due to lack of notice; equitable relief appropriate here | Bright‑line rule forbids consideration of any summary‑judgment materials filed after the 30‑day period | Reversed — trial court lacked authority to consider the belated response; bright‑line rule controls |
| Whether T.R. 72(E) permits extension when clerk failed to serve an order | Lack of actual notice (no e‑mail) justified relief under T.R. 72(E) | CCS shows notice was mailed; if CCS evidences service T.R. 72(E) relief unavailable | T.R. 72(E) relief unavailable because CCS plainly indicated mailed service; lack of receipt alone not enough |
| Whether T.R. 56(I) allows alteration of time when no timely request for an extension was made within 30 days | Court can alter time for good cause and cure notice problems that prevented timely response | Precedent requires a nonmoving party to file a response or request an extension within the initial 30 days before court may alter time | Court may not alter time under 56(I) where the nonmoving party did not act within the initial 30‑day period; bright‑line rule applies |
| Whether service by mail vs. electronic service affects availability of relief under T.R. 72 | Failure to receive electronic notice meant no actual knowledge and justified relief | T.R. 72(B) deems service by mail or email sufficient and CCS showing mailed service defeats challenge | Mail service reflected on the CCS is sufficient; method (mail v. e‑service) does not supply relief when CCS evidences service |
Key Cases Cited
- Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d 967 (Ind. 2014) (explaining procedure and limits for admissibility of evidence opposing summary judgment)
- HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind. 2008) (establishing bright‑line rule forbidding consideration of untimely summary‑judgment materials)
- Desai v. Croy, 805 N.E.2d 844 (Ind. Ct. App. 2004) (holding a nonmoving party must seek extension during initial 30‑day period for court to have discretion)
- Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116 (Ind. 1994) (T.R. 72(E) relief unavailable where CCS evidences service)
- Penley v. Penley, 145 N.E.3d 874 (Ind. Ct. App. 2020) (describing T.R. 72(E) as sole vehicle for relief when clerk failed to serve an order)
- Markle v. Ind. State Tchrs. Ass'n, 514 N.E.2d 612 (Ind. 1987) (if docket/CCS is clear that notice was mailed, challenge to receipt is precluded)