Opinion
23A-CT-1747
05-22-2024
Timothy Marcus Mayberry, Appellant-Plaintiff v. Anonymous Health Systems, Anonymous Hospital, and Dennis L. Carter, D.D.S., Appellees-Defendants
APPELLANT PRO SE TIMOTHY MARCUS MAYBERRY MICHIGAN CITY, INDIANA ATTORNEY FOR APPELLEES ANONYMOUS HEALTH SYSTEM AND ANONYMOUS HOSPITAL ROBERT J. PALMER MAY, OBERFELL, LORBER MISHAWAKA, IN ATTORNEY FOR DENNIS L. CARTER, D.D.S. JOHN T. VANDENBURGH CASSIDY SCHADE, LLP MERRILLVILLE, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the St. Joseph Circuit Court The Honorable John Broden, Judge Trial Court Cause No. 71C01-2112-CT-475
APPELLANT PRO SE TIMOTHY MARCUS MAYBERRY MICHIGAN CITY, INDIANA
ATTORNEY FOR APPELLEES ANONYMOUS HEALTH SYSTEM AND ANONYMOUS HOSPITAL ROBERT J. PALMER MAY, OBERFELL, LORBER MISHAWAKA, IN
ATTORNEY FOR DENNIS L. CARTER, D.D.S. JOHN T. VANDENBURGH CASSIDY SCHADE, LLP MERRILLVILLE, INDIANA
MEMORANDUM DECISION
Kenworthy Chief Judge
[¶1] In this consolidated appeal, Timothy Marcus Mayberry challenges two trial court orders granting summary judgment for adverse parties. Mayberry contends the trial court abused its discretion by failing to give him additional time to respond to the summary judgment motions. We affirm.
Facts and Procedural History
[¶2] While imprisoned at the St. Joseph County Jail ("Jail") in 2019, Mayberry's tooth broke. Dr. Dennis L. Carter, D.D.S. ("Carter") provided care to Mayberry over several months and eventually pulled Mayberry's tooth on November 15.
[¶3] On September 3, 2021, Mayberry filed a proposed complaint with the Indiana Department of Insurance ("IDOI") naming Anonymous Health System and Anonymous Hospital (collectively, "Healthcare Providers"), the Jail, and Carter as defendants. He alleged the treatment he received was negligent and fell below the standard of care, resulting in injury, pain, and tooth loss. Soon after, IDOI mailed Mayberry a determination letter stating Healthcare Providers were qualified providers under the Indiana Medical Malpractice Act ("MMA"), but the Jail and Carter were not.
[¶4] On December 29, 2021, Healthcare Providers petitioned for a preliminary determination of law and moved for summary judgment against Mayberry in the St. Joseph Circuit Court. Their petition named Carter as a third-party defendant/respondent. Healthcare Providers argued they were not proper parties to Mayberry's proposed complaint and attached affidavits showing they never provided healthcare to Mayberry either directly or through an employment or agency relationship with Carter. Mayberry then moved for a continuance and to compel discovery under Indiana Trial Rule 56(F). In his motion, Mayberry stated he needed more information to show a genuine issue of material fact. He attached a personal affidavit and a letter purportedly written by a health system employee. Healthcare Providers moved to strike the letter and certain statements in Mayberry's affidavit as inadmissible hearsay.The trial court held a hearing, granted the motion to strike, and entered summary judgment for Healthcare Providers.
Under the MMA, a claimant generally may not commence an action against a healthcare provider in a trial court until the claimant has first presented a proposed complaint to a medical review panel through the IDOI and the panel gives an opinion. See Ind. Code § 34-18-8-4 (1998). But a trial court may assert jurisdiction over threshold issues and preliminarily determine an affirmative defense or issue of law or fact while a proposed complaint is pending before the medical review panel. See I.C. § 34-18-11-1(a)(1) (1998).
Although Healthcare Providers opened this case in December 2021, Mayberry's motion was not filed for over a year. The trial court initially granted Healthcare Providers' summary judgment motion but later vacated the judgment because Mayberry had not been served. The trial court then ordered Healthcare Providers to re-serve the motion for summary judgment and gave Mayberry until July 22, 2022 (or thirty days from the date of service) to respond. Mayberry contends he mailed his motion for continuance on July 1, but neither Healthcare Providers nor the clerk received it. After a hearing held on January 4, 2023, the trial court ordered Mayberry to refile it. He did so on January 10.
Healthcare Providers' motion to strike is not in the appendices, and Mayberry did not provide us with a transcript of any hearings. Still, the appellate record includes all proceedings before the trial court even if not transcribed or transmitted to this Court. Ind. Appellate Rule 27. And a "party's failure to include any item in an Appendix shall not waive any issue or argument." App. R. 49(B). To facilitate our review, we procured and now take judicial notice of the motion to strike and Mayberry's response. See Horton v. State, 51 N.E.3d 1154, 1161-63 (Ind. 2016) (permitting an appellate court to take judicial notice of trial court records relevant to the appellate case).
[¶5] Meanwhile, Carter petitioned for preliminary determination and summary judgment on May 1, 2023. Because Carter was not a qualified healthcare provider under the MMA, he asserted the statute of limitations for Mayberry to file a state court lawsuit against him had run over a year earlier on March 17, 2022. In response, Mayberry moved to stay the proceedings "for indefinite time." Appellant's App. 10/20/2023 Vol. 2 at 44. Mayberry asserted he was unable to submit a summary judgment response and designate evidence, citing "the IDOC's current lockdown that is hindering my ability to provide this court with a proper response[.]" Id. at 46. His motion was post-marked June 1, and the clerk file-stamped it June 8. On June 7, Carter requested a summary judgment ruling because Mayberry had failed to respond to the summary judgment motion within thirty days. On June 19, the trial court issued an order granting summary judgment for Carter but did not rule on Mayberry's motion for an enlargement of time.
[¶6] Mayberry appealed the trial court's orders separately, and this Court consolidated the appeals.
Standard of Review
[¶7] After a party moves for summary judgment, the non-moving party must respond within thirty days by either: (1) filing a response under Trial Rule 56(C); (2) requesting a continuance under Trial Rule 56(I); or (3) filing an affidavit under Trial Rule 56(F). In re Estate of Kreiger, 165 N.E.3d 623, 628 (Ind.Ct.App. 2021) (citing Mitchell v. 10th &The Bypass, LLC, 3 N.E.3d 967, 972 (Ind. 2014)), trans. denied. We review a trial court's ruling on a Trial Rule 56 motion for additional time for an abuse of discretion. See Erwin v. Roe, 928 N.E.2d 609, 614 (Ind.Ct.App. 2010); Coleman v. Charles Court, LLC, 797 N.E.2d 775, 781 (Ind.Ct.App. 2003). An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it. Coleman, 797 N.E.2d at 781. To establish the trial court abused its discretion in denying a Trial Rule 56 motion for additional time, the appealing party must show good cause existed to grant the motion and the trial court's denial prejudiced the party. Erwin, 928 N.E.2d at 614.
The trial court did not abuse its discretion in denying Mayberry's Trial Rule 56(F) motion for a continuance.
[¶8] Mayberry requested a continuance under Trial Rule 56(F) to conduct discovery and respond to Healthcare Providers' summary judgment motion. Rule 56(F) provides:
(F) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
[¶9] Healthcare Providers moved for summary judgment on the basis they did not provide dental care to Mayberry. In his motion, Mayberry stated he was "without sufficient information" to contest Healthcare Providers' motion for summary judgment and asked the trial court to compel discovery. Appellant's App. 12/19/23 Vol. 2 at 54. He attached a personal affidavit detailing the reasons he believed Healthcare Providers had a relationship with Carter. He also attached an unverified letter purportedly written by a health system employee, which Mayberry offered to show Healthcare Providers were liable for Carter's actions under a theory of respondeat superior.
The letter bears Anonymous Hospital's logo and names Carter as a medical provider at the Jail but does not explain Carter's relationship to Healthcare Providers.
[¶10] Mayberry's motion and affidavit establish he did not know the facts essential to defeat the motion for summary judgment. But Mayberry did not explain why he could not discover the evidence he sought within the thirty-day response period permitted by Rule 56(C). And he did not allege he was awaiting discovery responses or needed the trial court's intervention to compel a party's or witness's compliance before his summary judgment response was due. Without pending discovery requests or articulated reasons for needing more time to respond to Healthcare Providers' motion for summary judgment, we cannot say the trial court abused its discretion in denying Mayberry's Rule 56(F) motion. See Erwin, 928 N.E.2d at 614 (holding it was "well within" the trial court's discretion to deny a Rule 56(F) motion for a continuance even where a party's lawyer stated discovery was in progress but not complete); c.f. Kreiger, 165 N.E.3d at 629 (holding there was good cause to grant a Rule 56(F) continuance where many delays, motions to compel, and several years elapsed before the moving party complied with discovery requests but then moved for summary judgment before the nonmoving party had received the documents).
[¶11] All the same, Mayberry argues the trial court was "required" to grant his motion. Appellant's Br. 12/19/23 at 13. But Rule 56(F)'s language is permissive, not mandatory. See Ind. Trial Rule 56(F) (stating "the court may refuse the application for judgment or may order a continuance . . . or may make such other order as just") (emphases added); Erwin, 928 N.E.2d at 614 (observing "the trial court may, in its discretion, order a continuance pursuant to Indiana Trial Rule 56(F)"). The trial court was not required to give Mayberry more time to respond to Healthcare Providers' summary judgment motion.
[¶12] Finally, citing the MMA, Mayberry argues "without the trial court's permission, no discovery could be had." Appellant's Br. 12/19/23 at 12 (citing I.C. § 34-18-11-1(a)(2)). The MMA grants a trial court with jurisdiction over the subject matter limited power to "compel discovery in accordance with the Indiana Rules of Procedure" while a proposed complaint is pending with the IDOI. I.C. § 34-18-11-1(a)(2); see also Lorenz v. Anonymous Physician #1, 51 N.E.3d 391, 396 (Ind.Ct.App. 2016) (discussing subject matter jurisdiction and preliminary determination motions under the MMA). But the statute does not require a party to first obtain the trial court's permission to engage in discovery. "Discovery is the process by which the parties to an action ascertain the existence of material facts previously unknown." Jacob v. Chaplin, 639 N.E.2d 1010, 1012 (Ind. 1994). "The purpose of the discovery rules is to allow for minimal trial court involvement and to promote liberal discovery." Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012). "Discovery is designed to be selfexecuting with little, if any, supervision of the court." Trost-Steffen v. Steffen, 772 N.E.2d 500, 512 (Ind.Ct.App. 2002). Mayberry could have engaged in discovery but did not. Because Mayberry did not try to obtain the necessary evidence to defeat Healthcare Providers' summary judgment motion, the trial court did not abuse its discretion in denying Mayberry's Rule 56(F) motion for a continuance.
Moreover, Mayberry was aware of Healthcare Providers' claim they were not proper parties as early as April 13, 2022. But Mayberry did not engage in discovery or file a response anytime between then and January 4, 2023, when the trial court held a hearing and ordered Mayberry's response filed.
The trial court did not abuse its discretion in failing to respond to Mayberry's Trial Rule 56(I) motion.
[¶13] After receiving Carter's summary judgment motion, Mayberry requested an enlargement of time to respond under Trial Rule 56(I). The Rule provides: "For cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit." T.R. 56(I).
[¶14] To begin with, Carter disputes whether Mayberry's Rule 56(I) motion for an extension of time was timely filed. Under the prison mailbox rule, "a pro se incarcerated litigant who delivers a [document] to prison officials for mailing on or before its due date accomplishes a timely filing." Dowell v. State, 922 N.E.2d 605, 607 (Ind. 2010). In that case, the document is deemed filed on the date of submission to prison officials. Harkins v. Westmeyer, 116 N.E.3d 461, 469 (Ind. Ct. App. 2018). To invoke the prison mailbox rule in Indiana, a pro se prisoner must provide "reasonable, legitimate, and verifiable documentation supporting a claim that a document was timely submitted to prison officials for mailing." Dowell, 922 N.E.2d at 607. "Where a prisoner's proof is lacking, however, the opposite result obtains." Id. at 608.
[¶15] Carter moved for summary judgment on May 1, 2023, and Mayberry received the motion on May 4. Mayberry's response was due on June 5. See T.R. 5; T.R. 6(E); T.R. 56(C). In a motion dated May 29, Mayberry moved for more time to respond to Carter's motion. The clerk received and date-stamped the motion on June 8. Mayberry did not include in his motion specific documentation supporting his claim he submitted the motion to prison officials by June 5. But here, the clerk scanned into the trial court records both Mayberry's motion and the mailing envelope. The envelope is postmarked June 1, which is reasonable, legitimate, and verifiable documentation to support Mayberry's claim his motion was timely filed.
Again, we exercise our authority under the appellate rules to take judicial notice of the trial court records in this case. App. R. 27; App. R. 49(B); Horton, 51 N.E.3d at 1161-63.
[¶16] But even though Mayberry's motion was timely filed, the trial court was not obligated to grant it. In his Rule 56(I) motion, Mayberry stated he had evidence to defeat Carter's motion but could not produce it because the prison facility was on indefinite lockdown. In an order that did not address Mayberry's motion, the trial court granted summary judgment for Carter.
[¶17] Generally, "error [cannot] be based on a court's failure to rule on a motion" because the "litigant's sole remedy is provided in Trial Rule 53.1" (the lazy judge rule). Strutz v. McNagny, 558 N.E.2d 1103, 1109 (Ind.Ct.App. 1990), trans. denied. More importantly, Mayberry's motion lacked specificity about when the lockdown began or why he could not file his response in the three weeks between when he received Carter's summary judgment motion and mailed his motion for an extension of time. On appeal, Mayberry alleges the lockdown began April 10, but he did not include the date in his motion to the trial court. Nor did Mayberry allege he needed more time to gather evidence to designate; in fact, he claimed he had the necessary evidence to defeat Carter's motion, he just had not yet sent it. Accordingly, the trial court's failure to grant Mayberry's motion was not clearly against the logic and facts of the circumstances before it. See McGuire v. Century Sur. Co., 861 N.E.2d 357, 360 (Ind.Ct.App. 2007) (noting a party's claim they cannot timely respond to another party's motion "does not require a court to grant a motion for an extension of time to file a response, although it may permit a trial court to grant such a motion").
[¶18] The trial court granted summary judgment for Carter on June 19, two weeks after Mayberry's response was due. When a nonmoving party fails to respond to a motion for summary judgment within thirty days, the trial court cannot consider the party's late summary judgment filings. Mitchell, 3 N.E.3d at 972- 73. This "bright-line rule provides clarity and certainty" to Indiana law. Id. at 973. On appeal, Mayberry challenges the trial court's grant of summary judgment for Carter only on the grounds the trial court should have granted Mayberry's motion for an extension of time. The trial court did not grant his motion, and Mayberry should not have assumed it would do so. See McGuire, 861 N.E.2d at 360 n.2 (observing "without having received immediate notice from the trial court that the motion would be granted, counsel should have assumed it would be denied and acted accordingly"). Consequently, we will not disturb the trial court's grant of summary judgment for Carter.
Conclusion
[¶19] The trial court did not abuse its discretion by failing to grant Mayberry additional time to respond to summary judgment motions.
[¶20] Affirmed.
Altice, C.J., and Weissmann, J., concur.