Mark Keaton v. Christine L. Zook ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
Jul 29 2014, 6:25 am
precedent or cited before any court except for
the purpose of establishing the defense of res
judicata, collateral estoppel, or the law of the
case.
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
MARK KEATON DAVID L. FERGUSON
Fort Wayne, Indiana Ferguson & Ferguson
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARK KEATON, )
)
Appellant-Plaintiff, )
)
vs. ) No. 53A01-1401-PL-38
)
CHRISTINE L. ZOOK, )
)
Appellee-Defendant. )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable E. Michael Hoff, Judge
Cause No. 53C01-1202-PL-363
July 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
GARRARD, Senior Judge
Mark Keaton appeals the trial court’s grant of summary judgment to Christine L.
Zook. We affirm.
Keaton sued Zook, alleging malicious prosecution and abuse of process. Zook
filed a motion for summary judgment. Keaton moved for an extension of his deadline to
respond, and the trial court granted him an extension to and including July 31, 2013.
Keaton experienced problems with his printer and did not mail his response to the
trial court or Zook on July 31. On the morning of August 1, Keaton e-mailed Zook to ask
whether she would object to a one-day extension. After a further exchange of e-mails,
Zook stated she would not object. Later that day, Keaton mailed the court, via overnight
delivery, a motion for extension of time and a summary judgment response.
On August 2, Zook filed a motion to strike Keaton’s summary judgment response.
Three days later, the court granted Keaton’s motion for extension of time and deemed his
summary judgment response filed as of August 1.
Zook filed a motion to reconsider. The parties filed additional documents and the
court held a hearing. Next, the court granted Zook’s motion to reconsider and motion to
strike, concluding:
It is therefore ordered that the Plaintiff’s Designation of Evidence
Submitted in Opposition to Defendant Christine Zook’s Motion for
Summary Judgment; his Brief in Opposition to Defendant Christine Zook’s
Motion for Summary Judgment; and his Affidavit of R. Mark Keaton
Submitted in Opposition to Defendant Christine Zook’s Motion for
Summary Judgment are stricken. Plaintiff may submit a brief in the next 21
days that does not refer to designated evidence that has been stricken from
the summary judgment record.
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Appellant’s App. p. 16. Keaton did not submit a brief, and both parties waived a
summary judgment hearing. The court subsequently granted Zook’s motion for summary
judgment on all of Keaton’s claims. Keaton filed a motion to correct error, which the
court denied. This appeal followed.
Keaton claims the trial court erred in striking his response to Zook’s motion for
summary judgment. Zook contends on cross-appeal that this appeal should be dismissed
because Keaton failed to timely file his Appellant’s Brief. We disagree and address the
merits of Keaton’s claim.
In general, a trial court’s order on a motion to strike is reviewed for an abuse of
discretion. Williams v. Tharp, 914 N.E.2d 756, 769 (Ind. 2009). However, our supreme
court has established a “bright-line rule” that a party responding to a motion for summary
judgment must file the response, or a request for a continuance, within thirty days of
service of the motion. Mitchell v. 10th and The Bypass, LLC, 3 N.E.3d 967, 972-73 (Ind.
2014). If the party fails to file either the response or a request for a continuance within
that period, the trial court cannot consider summary judgment materials that are filed
after the period elapses. Id. at 972; see also Starks Mech., Inc. v. New Albany-Floyd
Cnty. Consol. Sch. Corp., 854 N.E.2d 936, 940 (Ind. Ct. App. 2006) (trial court “had no
discretion” to accept a summary judgment response and designated evidence that the
party submitted one day late). If a court grants an enlargement of time to file a summary
judgment response, the response must be filed within the additional period granted by the
court. Miller v. Yedlowski, 916 N.E.2d 246, 251 (Ind. Ct. App. 2009), trans. denied.
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Here, the parties agree that Keaton did not mail his summary judgment response to
the court until the day after the filing deadline had expired. Keaton failed to comply with
the bright-line rule, and the trial court did not err in striking his summary judgment
materials. See id.
Keaton argues that under Trial Rule 56(C), the operative deadline is the date of
service of the summary judgment response on an opposing party, not the date of filing
with the trial court. His argument is contradicted by precedent. See Mitchell, 3 N.E.3d at
972 (the “late filing” of summary judgment responses is precluded); Monroe Guar. Ins.
Co. v. Magwerks Corp., 829 N.E.2d 968, 974 (Ind. 2005) (trial court may not consider a
response that is “filed” after the thirty-day period).
In any event, Keaton did not serve his summary judgment response on Zook until
after the deadline expired. In addition, he did not ask whether she would object to a
continuance of the deadline until after the deadline expired. These belated acts did not
bring Keaton into compliance with the rule stated in Mitchell. Further, Zook’s agreement
to a one-day continuance after the deadline expired did not excuse Keaton’s failure to
timely file his summary judgment response or to timely file a request for a second
continuance. See Booher v. Sheeram, LLC, 937 N.E.2d 392, 394-95 (Ind. Ct. App. 2010)
(opponent’s lack of objection to an extension of time did not give the court discretion to
accept late-filed summary judgment documents where the party requesting the extension
failed to timely file the request), trans. denied.
Keaton’s challenge to the trial court’s grant of summary judgment is based upon
his conclusion that the trial court erred in striking his summary judgment response. The
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trial court did not err in striking the response, so Keaton’s appeal of the summary
judgment order must also fail.
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
NAJAM, J., and BROWN, J., concur.
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