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Kroger Limited Partnership I v. Lomax

Court of Appeals of Indiana

January 15, 2020

Kroger Limited Partnership I, [1] Appellant-Defendant,
v.
Ruth Lomax, Appellee-Plaintiff.

          Interlocutory Appeal from the Marion Superior Court The Honorable John F. Hanley, Judge Trial Court Cause No. 49D11-1705-CT-21225

          ATTORNEYS FOR APPELLANT J. Kirk LeBlanc Nelson A. Nettles Amanda M. Hendren LeBlanc Nettles Law, LLC Brownsburg, Indiana

          ATTORNEY FOR APPELLEE John D. Norman Poynter & Bucheri, LLC Indianapolis, Indiana

          Mathias, Judge.

         [¶1] Kroger Limited Partnership I ("Kroger") appeals the order of the Marion Superior Court denying its motion for summary judgment in a negligence case filed by Ruth Lomax ("Lomax"). Kroger presents four issues for our review, which we consolidate and restate as the following two: (1) whether the trial court abused its discretion by granting Lomax additional time to respond to Kroger's request for admissions; and (2) whether the trial court erred by denying Kroger's motion for summary judgment. We conclude sua sponte that Kroger's motion to appeal the trial court's interlocutory orders granting Lomax additional time to respond to Kroger's request for admissions was untimely. Accordingly, we affirm the trial court's denial of Kroger's motion for summary judgment that was based on these now-withdrawn admissions.

         Facts and Procedural History

         [¶2] On May 25, 2017, Lomax filed a complaint alleging that she tripped and fell on a doormat while exiting a Kroger store on July 3, 2015. Lomax's complaint alleged that Kroger was negligent by failing to maintain the area where Lomax fell and by failing to warn and protect its patrons of the tripping hazard.[2] Kroger filed an answer on July 25, 2017, denying the allegations in the complaint. On December 20, 2017, Lomax responded to Kroger's First Set of Interrogatories and Request for Production. In her response, Lomax reasserted her claims that Kroger was negligent by referring to the allegations in her complaint. She also stated that she sustained injuries to her back, ankle, right knee, and shoulder, and that her medical expenses thus far exceeded $40, 000.

         [¶3] Lomax's first counsel withdrew his appearance on October 15, 2018. Seven days later, on October 22, 2018, Kroger served Lomax with a request for admissions in which Kroger asked Lomax to admit that she was solely at fault for her fall, that she was not injured, and that she did not incur any medical expenses. Lomax's response to the request for admissions was due on November 24, 2018.

         [¶4] Lomax subsequently retained new counsel, who filed his appearance on November 8, 2018. Kroger's counsel advised Lomax's counsel that a request for admissions had been sent to Lomax, but never sent a copy of the request to Lomax's new counsel. Lomax's counsel did not respond to the request for admissions by November 24, 2018. Three days later, Kroger filed a motion for summary judgment, arguing that Lomax's failure to respond to the request for admissions meant that the facts contained therein were deemed admitted.

         [¶5] On December 11, 2018, Lomax filed a motion for an extension of time to respond to Kroger's request for admissions and to respond to the motion for summary judgment. Kroger filed an objection thereto on December 12, 2018, and, that same day, Lomax filed a notice with the trial court stating that her counsel had served Kroger with her responses to Kroger's request for admissions. On December 13, 2018, the trial court entered an order granting Lomax's motion for an extension of time to file her response to Kroger's request for admissions ("the December 13 Order").

         [¶6] Then, on January 3, 2019, Lomax's second counsel withdrew his appearance, and two different attorneys filed an appearance on Lomax's behalf on January 7, 2019. Lomax's new counsel filed, on January 9, 2019, a motion to deem her response to Kroger's request for admissions as timely, to which Kroger also objected. On January 23, 2019, the trial court entered an order granting Lomax's motion to deem her answers to Kroger's request for admissions as timely ("the January 23 Order"). On February 8, 2019, Lomax filed her opposition to Kroger's motion for summary judgment.[3]

         [¶7] Kroger filed a motion to reconsider the trial court's ruling on Lomax's answers on February 15, 2019, which the trial court denied on March 12, 2019 ("the MTR Order"). Also on March 12, the trial court also entered an order denying Kroger's motion for summary judgment ("the Summary Judgment Order").[4]On March 26, 2019, Kroger filed a motion seeking to certify for interlocutory appeal the MTR Order and the Summary Judgment Order. The trial court granted this motion on April 29, 2019, and we accepted jurisdiction on June 28, 2019.

         Timeliness of Kroger's Interlocutory Appeal

         [¶8] We first address the timeliness of Kroger's interlocutory appeal.[5] Kroger sought to certify two of the trial court's orders for interlocutory appeal: the Summary Judgment Order and the MTR Order. Kroger's motion to reconsider asked the trial court to overrule its previous rulings on the December 13 Order and the January 23 Order, which permitted Lomax to file belated responses to Kroger's request for ...


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