Dr. Norma Kreilein, Rock Emmert, and Healthy Dubois County, Inc. v. Common Council of the City of Jasper and Jasper Utility Board , 980 N.E.2d 352 ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
CHRISTOPHER R. PUTT KARL L. MULVANEY
ROBERT J. PALMER BRIAN W. WELCH
May Oberfell Lorber GREGORY A. NEIBARGER
Mishawaka, Indiana SHANNON D. LANDRETH
Bingham Greenebaum Doll LLP
Indianapolis, Indiana
IN THE
FILED
Nov 19 2012, 9:34 am
COURT OF APPEALS OF INDIANA
CLERK
of the supreme court,
court of appeals and
tax court
DR. NORMA KREILEIN, ROCK EMMERT, )
and HEALTHY DUBOIS COUNTY, INC., )
)
Appellants, )
)
vs. ) No. 19A04-1201-MI-51
)
COMMON COUNCIL OF THE CITY OF )
JASPER and JASPER UTILITY BOARD, )
)
Appellees. )
APPEAL FROM THE DUBOIS CIRCUIT COURT
The Honorable M. Lucy Goffinet, Special Judge
Cause No. 19C01-1108-MI-298
November 19, 2012
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Dr. Norma Kreilein, Rock Emmert, and Healthy Dubois County, Inc. (collectively
“HDC”) filed a complaint against the Common Council of the City of Jasper (“the
Council”) and the Jasper Utility Board (“the Utility Board”) (collectively “Jasper”)
seeking declaratory judgment and injunctive relief for alleged violations of the Indiana
Open Door Law. Jasper filed a counterclaim against HDC alleging that its complaint is
“frivolous, meritless, groundless, baseless and vexatious” and seeking attorney’s fees.
Appellants’ App. at 64. Following a bench trial, the trial court entered judgment in favor
of Jasper on HDC’s complaint and denied Jasper’s counterclaim. HDC appeals and
presents three dispositive issues for our review, namely, whether the trial court abused its
discretion when it denied HDC’s third motion to amend its complaint, motion to continue
trial, and second motion to compel discovery.
We reverse and remand for further proceedings.1
FACTS AND PROCEDURAL HISTORY
Jasper owns a now-defunct coal-burning power plant. The plant is a “stranded
asset” that costs Jasper between $75,000 and $100,000 per month to maintain. Transcript
at 95. In January 2010, Jay Catasein, the managing member of Twisted Oak, LLC,
contacted Gerald Hauersperger, the general manager of utilities with the City of Jasper,
and discussed the possibility of converting the power plant to a biomass-burning power
1
Because we find these issues regarding HDC’s motions dispositive of this appeal, we do not
reach the merits of the allegations asserted in HDC’s complaint. We hold that the trial court abused its
discretion when it denied HDC’s motions to amend its complaint, continue trial, and compel discovery,
and we remand for a new trial.
2
plant. In particular, Catasein and Hauersperger discussed the use of miscanthus grass to
power the plant.
Accordingly, in 2010, Jasper developed and issued its first request for proposals
(“RFP”) concerning the conversion of the power plant, and Jasper received four
responses from interested companies, including Twisted Oak. Thereafter, the Council
and the Utility Board held joint executive sessions regarding the responses to the RFP in
August and September 2010 and a special joint public meeting on October 25, 2010. At
the public meeting, the Council and Utility Board voted to reject all of the responses and
approved changes to the RFP.
In late October 2010, Jasper issued its second RFP concerning the plant
conversion. Jasper received responses from Twisted Oak and Global Energy Solutions.
Thereafter, on December 20, the Council and the Utility Board held a joint executive
session regarding the responses and published a public memorandum describing that
session. And on February 8, 2011, the Council and the Utility Board held a joint public
meeting regarding the responses to the second RFP. Thereafter, the Utility Board agreed
to pursue negotiations to lease the power plant to Twisted Oak.
In the meantime, a group of concerned citizens formed HDC to oppose the
planned power plant conversion. In particular, HDC raised the issue of potential health
effects associated with emissions from the burning of miscanthus grass, as well as
problems local farmers might face in cultivating the grass. Dr. Kreilein, a pediatrician
who treated patients residing in the area near the proposed plant, and several other local
physicians expressed opposition to the plant conversion due to their concerns that
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residents’ health would be adversely impacted. And Dr. William Sammons, a
pediatrician who has researched the health effects of biomass plants, spoke at public
meetings about the “medical risks” associated with such a plant. Transcript at 187.
Despite the opposition of HDC and the physicians, Jasper proceeded to negotiate a
lease agreement with Twisted Oak. A “volunteer group” was charged with negotiating
the terms of the lease, and that group consisted of Jasper’s Mayor, William Schmitt (“the
Mayor”); a member of the Council, John Schroeder; the chairman of the Utility Service
Board, Wayne Schuetter; the superintendent of the power plant, Wendel Toby; the City
Attorney, Sandy Hemmerlein; outside counsel, Bill Kaiser; and the general manager of
utilities for Jasper, Hauersperger. The volunteer group
basically facilitated the discussions around the lease negotiations. [The
group facilitated] the back and forth as far as protections to the City, to the
rate payers[,] [considered] the dos and don’ts as far as emissions, and really
put the draft documents together. [And] ultimately the utility board itself
would review [the final draft lease agreement].
Transcript at 60. The volunteer group met approximately twelve to fifteen times, and
Catasein, the managing member of Twisted Oak, participated in several of the meetings.
None of the meetings of the volunteer group were open to the public, and there was no
public notice of any of the meetings. The group provided the Council and the Utility
Board with periodic updates on their progress in negotiations and made
“recommendations.” Id. at 114.
After the volunteer group presented a final draft to the Council and the Utility
Board, Jasper scheduled a joint public meeting for August 5, 2011, to vote on approval of
the lease agreement. HDC learned of the meeting two days in advance and, on August 4,
4
HDC filed a complaint for declaratory judgment on the issue of whether Jasper had
violated Indiana’s Open Door Law. The complaint further sought injunctive relief.
Specifically, HDC sought, in part, a temporary restraining order to prevent the vote to
approve the lease agreement. But HDC withdrew its request for a temporary restraining
order on August 5.
At the August 5 joint public meeting, the Council members and the Utility Board
members each explained the reasons behind his vote on the lease agreement. The final
vote was all but one in favor of approving the lease agreement. Accordingly, the Council
passed the resolution to enter into the lease agreement with Twisted Oak.
On August 12, HDC submitted its first request for production of documents to
Jasper and a request for production of documents to non-party Twisted Oak. And on
August 16, HDC filed its first motion to amend its complaint by interlineation. In
particular, HDC amended its prayer for relief as follows: a declaration that Jasper’s
actions described in the complaint were in violation of Indiana law; to enjoin Jasper from
executing any final draft of a lease which was the subject of or resulted from any illegal
or improperly held executive sessions until a proper remedy could be found and
implemented; to enjoin Jasper from commencing performance under any such lease until
a judicial determination of statutory compliance could be made; for an award of fees and
expenses; and for all other proper relief. On August 22, Jasper filed its answer and
counterclaim, and HDC filed its answer to the counterclaim on August 26.
On August 29, Jasper filed a motion to set an expedited hearing on HDC’s
complaint for declaratory judgment. That same day, following a conference call with the
5
attorneys, the trial judge recused himself from the case. And on September 6, HDC filed
its second request for production of documents, requesting, in part, all records of
executive sessions held by either the Council or the Utility Board in September 2010,
May 2011, and August 2011. On September 14, a Special Judge was appointed to
preside over the case. And on October 4, Jasper renewed its motion to expedite the
hearing on declaratory judgment.
On October 11, HDC filed a response to the motion for expedited hearing and
moved the trial court to compel discovery. In particular, HDC averred that: HDC had
proposed dates in October for depositions, but Jasper “orally represented to [HDC]’s
counsel that [it] will object to any depositions”; in response to the discovery request
seeking all minutes of executive sessions, Jasper produced only public memoranda;
Jasper objected to the third-party request for production to Twisted Oak; and Jasper
responded ambiguously to certain requests for correspondence regarding the power plant
conversion. Transcript at 88. HDC requested an additional sixty or ninety days to
conduct discovery. In addition, HDC requested a hearing to determine whether a
protective order would be appropriate to guard against the disclosure of any confidential
material in discovery.
On October 19, HDC filed a notice of taking the depositions of Clerk/Treasurer
Juanita Boehm, Mayor Schmitt, Utility Board member Rick Stradtner, and Hauersperger
on November 1. On October 27, Jasper moved for a protective order to quash the
deposition notices and subpoenas. In support of that motion, Jasper argued that the facts
relevant to HDC’s complaint were undisputed and that, therefore, the depositions were
6
nothing more than a “fishing expedition.” Id. at 97. Also on October 27, HDC filed
another motion to compel discovery regarding the outstanding requests for production
and notices of depositions. On November 3, Jasper responded to the motion to compel
and argued that the issues before the trial court were legal issues and no additional
discovery was necessary.
On November 21, HDC filed its second motion to amend its complaint to add a
fifth count. Also on that date, the trial court held a hearing on HDC’s motion to compel
discovery and Jasper’s motion to expedite the declaratory judgment hearing. On
November 28, Jasper filed a response in opposition to HDC’s second motion to amend
complaint. And on November 30,2 the trial court issued its order granting the motions to
compel and to expedite the declaratory judgment hearing as follows: the court set the
matter for a three-day bench trial commencing on December 19; the court ordered that
HDC be permitted to take depositions and obtain copies of any minutes of the executive
sessions identified in the complaint; the court permitted HDC to inquire during
depositions regarding meetings attended by Catasein; and the court issued a protective
order prohibiting HDC from disclosing information pertaining to executive sessions
revealed in the course of discovery. Then, on December 7, the trial court granted in part
and denied in part HDC’s second motion to amend its complaint.
Following depositions on December 6 and 7, HDC filed motions to continue the
trial set for December 19, to compel discovery, and to amend its complaint for the third
time. HDC’s third motion to amend its complaint sought to add allegations concerning
2
In its motion to continue trial, HDC states that the trial court ordered Jasper to comply with
discovery requests on November 21. But the trial court’s order is dated November 30, so we will use that
date.
7
the volunteer group that negotiated the lease agreement, as facts about the volunteer
group were revealed in the depositions. And HDC’s motion to continue the trial alleged
that Jasper had not yet complied with certain discovery requests despite the trial court’s
order compelling said discovery on November 30, and additional discovery was
necessary to obtain information regarding the volunteer group meetings. In addition,
HDC alleged that the depositions had revealed possible additional violations of the
Indiana Open Door Law, which would require further discovery.
The trial court had not yet ruled on HDC’s motions by the first day of trial,
December 19. Accordingly, on the morning of trial, HDC renewed its motions to compel
discovery, amend its complaint, and continue the trial. Jasper opposed those motions,
and the trial court denied the motions. At the conclusion of the bench trial, the trial court
found in Jasper’s favor on “all counts and claims in Plaintiffs’ original and amended
complaints” and found in favor of HDC on Jasper’s counterclaim. Appellants’ App. at
21. The trial court entered findings of fact and conclusions thereon. The following
conclusions are particularly relevant to the issues in this appeal:
30. The Volunteer Group had no decision making authority. The
Volunteer Group did not constitute a quorum[3] of the City Council or the
Utility Service Board.
3
Indiana Code Section 5-14-1.5-3.1 provides in relevant part that the governing body of a public
agency violates the Indiana Open Door Law if members of the governing body participate in a series of at
least two gatherings of members of the governing body and the series of gatherings meets all of the
following criteria:
(1) One of the gatherings is attended by at least three members but less than a quorum of the
members of the governing body and the other gatherings include at least two members of the
governing body.
(2) The sum of the number of different members of the governing body attending any of the
gatherings at least equals a quorum of the governing body.
(3) All the gatherings concern the same subject matter and are held within a period of not more
than seven consecutive days.
8
31. Based upon testimony the Court does not find that the Volunteer Group
was formed in an attempt to evade Indiana’s Open Door Law.
***
34. The Court does not find the Defendants violated Indiana’s Open Door
Law or acted inappropriately in any executive meeting.
Id. This appeal ensued.
DISCUSSION AND DECISION
HDC contends that the trial court abused its discretion when it denied HDC’s third
motion to amend its complaint, motion to continue trial, and second motion to compel
discovery. In particular, HDC maintains that additional discovery is warranted and
necessary to determine whether the volunteer group was a governing body and whether it
violated Indiana’s Open Door Law. Accordingly, HDC asserts that the trial court should
have granted its third motion to amend its complaint to include allegations regarding the
volunteer group, second motion to compel discovery, and its motion to continue trial.
We must agree.
Indiana’s Open Door Law
The purpose of the Open Door Law is to ensure that the business of the State of
Indiana and its political subdivisions be conducted openly so that the general public may
be fully informed. City of Gary v. McCrady, 851 N.E.2d 359, 365 (Ind. Ct. App. 2006);
see Ind. Code § 5-14-1.5-1. The provisions of this statute are to be liberally construed in
order to give effect to the legislature’s intention. McCrady, 851 N.E.2d at 365. The
(4) The gatherings are held to take official action on public business.
While Jasper maintains that the volunteer group “did not constitute a quorum of either the
Council or the Board,” Brief of Appellees at 43, and the trial court so found, this issue is not dispositive
of this appeal.
9
Open Door Law requires that, except for those situations where an executive session is
authorized, “all meetings of the governing bodies of public agencies must be open at all
times for the purpose of permitting members of the public to observe and record them.”
Ind. Code § 5-14-1.5-3. For purposes of the Open Door Law, a meeting is defined as “a
gathering of a majority of the governing body of a public agency for the purpose of
taking official action upon public business.” Ind. Code § 5-14-1.5-2(c). “Official action”
means to (1) receive information; (2) deliberate; (3) make recommendations; (4) establish
policy; (5) make decisions; or (6) take final action. Ind. Code § 5-14-1.5-2(d). Executive
sessions may only be held in certain instances, public notice must be given of executive
sessions, and the public must be provided with memoranda and minutes identifying the
subject matter considered in executive sessions. Ind. Code § 5-14-1.5-6.1.
Here, we find the issue at the heart of this appeal to be whether the volunteer
group constituted a governing body of a public agency under the Open Door Law. It is
undisputed that the volunteer group meetings were neither noticed nor open to the
public.4 Indiana Code Section 5-14-1.5-2(b) provides that a “governing body” means two
or more individuals who are:
(1) a public agency that:
(A) is a board, a commission, an authority, a council, a
committee, a body, or other entity; and
(B) takes official action on public business;
(2) the board, commission, council, or other body of a public agency which
takes official action upon public business; or
4
The trial court erroneously found that the volunteer group meetings were open to the public.
10
(3) any committee appointed directly by the governing body or its presiding
officer to which authority to take official action upon public business has
been delegated. . . .
(Emphases added).
The volunteer group consisted of seven people charged with negotiating the lease
with Twisted Oak and making recommendations to the Council and the Utility Board.
Jasper insists that the volunteer group was not “appointed directly” by a governing body
and was not, therefore, a governing body of a public agency, as defined by statute. But
there is nothing in the record explaining how the volunteer group was created and who
assigned it the task to negotiate the lease agreement. And, as we explain below, we hold
that HDC is entitled to have more time to conduct discovery to determine whether the
volunteer group was a governing body of a public agency and whether the group violated
the Open Door Law. Indeed, the evidence shows that the volunteer group both received
information and “ma[d]e recommendations” regarding the lease with Twisted Oak, which
may constitute “official action” under Indiana Code Section 5-14-1.5-2(d).
Motion to Amend Complaint
We next address HDC’s contention that the trial court abused its discretion when it
denied HDC’s third motion to amend its complaint to add an allegation that the volunteer
group violated Indiana’s Open Door Law. Pleading amendments by “leave of court” are
governed by Trial Rule 15(A), which provides that “leave shall be given when justice so
requires.”5 The stated policy of this court and our Supreme Court is to freely allow such
amendments in order to bring all matters at issue before the court. State Farm Mut. Auto.
5
Trial Rule 15(A) provides in relevant part that a party may amend its complaint “once as a
matter of course at any time before a responsive pleading is served[.]” HDC had already amended its
complaint once under that provision.
11
Ins. Co. v. Shuman, 175 Ind. App. 186, 370 N.E.2d 941, 948 (1977) (citing Huff v.
Travelers Indemnity Co., 266 Ind. 414, 363 N.E.2d 985, 989 (1977)). Leave to amend
should be given unless the amendment will result in prejudice to the opposing party.
Huff, 363 N.E.2d at 989.
In its decisions on whether to permit amendments to pleadings, the trial court is
vested with a broad discretion. Id. An abuse of discretion may occur if the trial court’s
decision is clearly against the logic and effect of the facts and circumstances before the
court, or if the court has misinterpreted the law. Hilliard v. Jacobs, 927 N.E.2d 393, 398
(Ind. Ct. App. 2010), trans. denied. We consider whether a trial court’s ruling on a
motion to amend is an abuse of discretion by evaluating a number of factors, including “
‘undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to
cure deficiency by amendment previously allowed, undue prejudice to the opposing party
by virtue of the amendment, and futility of the amendment.’ ” Id. (quoting Palacios v.
Kline, 566 N.E.2d 573, 575 (Ind. Ct. App. 1991)).
Here, HDC’s efforts to timely obtain discovery in the course of these expedited
proceedings6 were thwarted time and time again by Jasper’s refusal to cooperate. First,
when HDC attempted to schedule depositions for October, Jasper did not comply. Jasper
only agreed to schedule the depositions after the trial court ordered Jasper to do so on
November 30. Accordingly, HDC arranged for several depositions to take place on
December 6 and 7, and HDC had less than two weeks prior to trial to complete discovery
6
Again, the trial court granted Jasper’s request to expedite the declaratory judgment hearing
under Indiana Code Section 5-14-1.5-7(g), which provides that a hearing on a claim brought under
Indiana’s Open Door Law shall be expedited. No Indiana case has specifically addressed that provision
of the statute.
12
and to prepare for trial based on any new information obtained in the course of those
depositions.
In its third motion to amend its complaint, HDC stated in relevant part:
4. Because of the expedited nature of this case, Plaintiffs have been
forced to complete the Court Ordered discovery in less than 30 days prior
to trial. At depositions taken by Plaintiffs on December 6, 2011, which
depositions have not been transcribed at the filing of this Motion1, Plaintiffs
learned that:
A. A “volunteer committee” was used by the City to
negotiate the subject lease with Jay Catasein. Further, that
this volunteer committee was composed of certain members
of Jasper’s City Council, Utility Service Board and City
employees. Further, that said Committee’s meetings were not
advertised to the public.
***
5. Plaintiffs were not aware, nor could they have been aware, of the
above potential violations of the Indiana Open Door law . . . until these
depositions were taken. As the Court has previously heard, the Plaintiffs
sought and Defendants resisted discovery in this matter until the Court
ordered discovery on November [30], 2011.
[Internal footnote 1: The Parties concluded two days of depositions on
December 7, 2011. The Reporter is currently transcribing approximately
13 to 18 estimated hours of deposition testimony. When the depositions are
transcribed, Plaintiffs will pinpoint the parts of those depositions which
support this Motion.]
Appellants’ Supp. App. at 1-2 (emphasis original).
On appeal, Jasper contends that the trial court properly denied HDC’s third motion
to amend its complaint because: HDC filed the motion only ten days prior to trial; the
“allegations regarding the volunteer group” were “a complete departure from the
allegations previously raised” regarding Indiana Open Door Law violations; HDC knew
or should have known “of the existence of the volunteer group” long before the
13
depositions were taken; and the third amended complaint “would either force the City to
develop on the eve of trial (and after discovery has closed) a defense to claims about
other meetings by a different group or force the City to delay an expeditious resolution of
the IODL challenges in the First Amended Complaint” which would “unduly prejudice
the City.” Brief of Appellees at 32-35.
First, whether HDC knew that the volunteer group existed when it filed its first
complaint is of no moment. There is no evidence that prior to the December 2011
depositions HDC had any knowledge of specific facts concerning the volunteer group’s
role in negotiating the lease agreement or the fact that Catasein had met with the
volunteer group several times. HDC obtained new information during the depositions,
and it is entitled to a reasonable period of time to pursue additional discovery based on
that new information.
Second, Jasper’s contention that the issues related to the volunteer group are a
“complete departure” from the issues raised in HDC’s complaint and amended complaint
is simply without merit. HDC filed its complaint based on alleged violations of the Open
Door Law. HDC now argues that information learned from the depositions suggests that
the volunteer group may have been formed in an attempt to circumvent the Open Door
Law. And, again, our policy is to freely allow amendments to complaints in order to
bring all matters at issue before the court. See Shuman, 370 N.E.2d at 948.
Finally, any alleged prejudice to Jasper was a direct result of Jasper’s refusal to
conduct the depositions in October, when HDC had first attempted to schedule them.
Depositions typically reveal new information which, in turn, requires additional
14
discovery. Here, HDC was backed up against a wall when it filed its third motion to
amend its complaint only two weeks before trial.
Again, leave to amend should be given unless the amendment will result in
prejudice to the opposing party. Huff, 363 N.E.2d at 989. Here, Jasper cannot show that
it would have been prejudiced by HDC’s third amended complaint because Jasper’s
recalcitrance in complying with discovery requests, especially depositions, was the sole
reason for the timing of the proposed amendment. We reverse the trial court’s denial of
HDC’s third motion to amend its complaint.
Motion to Continue Trial
Under the trial rules, a trial court shall grant a continuance upon motion and “a
showing of good cause established by affidavit or other evidence.” Ind. Trial Rule 53.5.
A trial court’s decision to grant or deny a motion to continue a trial date is reviewed for
an abuse of discretion, and there is a strong presumption the trial court properly exercised
its discretion. Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 2009). A denial of a
motion for continuance is abuse of discretion only if the movant demonstrates good cause
for granting it. Id.Here, again, Jasper refused to permit depositions until December 6, after the trial
court had ordered Jasper to comply with HDC’s request for depositions. When HDC was
finally able to conduct the depositions, less than two weeks remained until trial. In
support of its motion to continue the trial, HDC stated that it was ready to take
depositions the week of November 28, but that Jasper insisted the depositions be held
December 6, 7, and 8. And HDC argued
15
4. That based upon information obtained from the December 6 and 7
depositions, Plaintiffs have filed simultaneously with this motion,
additional discovery requests, interrogatories and a motion to compel
discovery with which Plaintiffs believe the Defendants have not complied.
Based upon Defendants’ initial discovery delay in this matter, the
additional discovery required because of the depositions and Defendants’
continuing objection to what Plaintiffs believe [are] legitimate discovery
requests, Plaintiffs are requesting additional time to prepare for the trial in
this matter.
5. Further, based upon information obtained from the depositions,
issues have been presented for the first time that are now the subject of
Plaintiffs’ third request to file an amended complaint which is also filed
simultaneously herewith.
Appellants’ App. at 152-53. Accordingly, HDC requested a continuance of the trial date
for at least thirty days to prepare for trial.
We acknowledge Jasper’s contention that the trial court was obligated to advance
the trial on the calendar pursuant to Indiana Code Section 5-14-1.5-7 and that under Trial
Rule 57 “[t]he court may order a speedy hearing of an action for a declaratory judgment
and may advance it on the calendar.” But, here, the four-and-a-half-month time period
from the date the complaint was filed to the date of trial was unreasonable given Jasper’s
deliberate failure to agree to depositions until December, and then only after court
intervention.7 Jasper has not shown how it would have been prejudiced by a thirty-day
continuance, especially considering Mayor Schmitt’s testimony that there was no
“official deadline” for finalizing the lease agreement with Twisted Oak. Transcript at
138. And the prejudice to HDC in denying the motion to continue is obvious in light of
the abbreviated discovery schedule. We hold that the trial court abused its discretion
7
Our research has not revealed any cases involving the Open Door Law where the time between
the filing of the complaint and trial was so abbreviated.
16
when it denied HDC’s motion to continue trial. We reverse and remand for a new trial,
to be held after sufficient time for additional discovery has been granted HDC.
Motion to Compel Discovery
Finally, because we reverse and remand for a new trial, we instruct the trial court
to grant HDC’s second motion to compel discovery.
Conclusion
In sum, HDC has demonstrated that it was diligent in pursuing discovery, but was
thwarted for months by Jasper’s refusal to cooperate. Less than two weeks prior to trial,
HDC obtained information in the course of depositions that suggested possible Open
Door Law violations by the volunteer group. The trial court abused its discretion when it
denied HDC’s third motion to amend its complaint, filed only four months after its initial
complaint and while discovery was ongoing. Jasper cannot complain about either the
timing of the third amended complaint or the motion to continue trial because Jasper
refused to schedule depositions until the eleventh hour, less than two weeks prior to trial.
The trial court abused its discretion when it denied HDC’s motion to continue the trial.
We reverse and remand with instructions that the trial court: (1) grant HDC’s third
motion to amend its complaint; (2) grant HDC an additional thirty days to conduct new
discovery, including but not limited to depositions; (3) grant HDC’s second motion to
compel discovery; and (4) schedule a new trial to be held no less than thirty days after the
close of discovery.
Reversed and remanded for further proceedings.
KIRSCH, J., and MAY, J., concur.
17