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judgment that was based on these now-withdrawn admissions.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 ...