                                                                           FILED
                                                                       Jan 15 2020, 8:21 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
J. Kirk LeBlanc                                             John D. Norman
Nelson A. Nettles                                           Poynter & Bucheri, LLC
Amanda M. Hendren                                           Indianapolis, Indiana
LeBlanc Nettles Law, LLC
Brownsburg, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kroger Limited Partnership I,1                              January 15, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-CT-1201
        v.                                                  Interlocutory Appeal from the
                                                            Marion Superior Court
Ruth Lomax,                                                 The Honorable John F. Hanley,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            49D11-1705-CT-21225



Mathias, Judge.




1
  Aramark Uniform & Career Apparel, LLC is a party to the matter below but did not file an appearance or
otherwise participate on appeal. However, pursuant to Indiana Appellate Rule 17(A), a party of record in the
trial court shall be a party on appeal.

Court of Appeals of Indiana | Opinion 19A-CT-1201 | January 15, 2020                            Page 1 of 10
[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




      2
       Lomax filed an amended complaint on June 19, 2017, naming Aramark Uniform & Career Apparel, LLC,
      as a co-defendant. As noted supra, Aramark does not participate in this appeal.

      Court of Appeals of Indiana | Opinion 19A-CT-1201 | January 15, 2020                   Page 2 of 10
      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




      Court of Appeals of Indiana | Opinion 19A-CT-1201 | January 15, 2020      Page 3 of 10
      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




      3
        Along with her brief in opposition to Kroger’s motion for summary judgment, Lomax filed a motion to
      strike Kroger’s designated Exhibit 2, which consisted of the unanswered request for admissions. The trial
      court denied this motion to strike.
      4
        Both of these orders were signed on March 11 but not entered into the chronological case summary
      (“CCS”) until the following day.



      Court of Appeals of Indiana | Opinion 19A-CT-1201 | January 15, 2020                             Page 4 of 10
      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 admissions. Thus, by seeking to appeal the MTR Order, Kroger also

      sought to appeal the December 13 and January 23 Orders.


[9]   Indiana Appellate Rule 14(B), which governs discretionary interlocutory

      appeals, provides in relevant part:


               B. Discretionary Interlocutory Appeals. An appeal may be
               taken from other interlocutory orders if the trial court certifies its
               order and the Court of Appeals accepts jurisdiction over the
               appeal.




      5
        Although neither party presents the timeliness of Kroger’s appeal as an issue, this court regularly addresses
      such issues sua sponte. Snyder v. Snyder, 62 N.E.3d 455, 458 (Ind. Ct. App. 2016). This is true even though
      our supreme court has held that the failure to timely file a notice of appeal is not a jurisdictional defect. Id.
      (citing In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014); Blinn v. Dyer, 19 N.E.3d 821, 822 (Ind. Ct. App.
      2014)). Even though the failure to timely file an appeal is not a jurisdictional matter, it acts to forfeit the right
      to an appeal absent extraordinarily compelling reasons. Snyder, 62 N.E.3d at 458 (citing O.R., 16 N.E.3d at
      971). We discern no such extraordinarily compelling reasons in the present case.

      Court of Appeals of Indiana | Opinion 19A-CT-1201 | January 15, 2020                                    Page 5 of 10
               (1) Certification by the Trial Court. The trial court, in its discretion,
               upon motion by a party, may certify an interlocutory order to
               allow an immediate appeal.

                    (a) Time for Filing Motion. A motion requesting certification of
                    an interlocutory order must be filed in the trial court within thirty
                    (30) days after the date the interlocutory order is noted in the
                    Chronological Case Summary unless the trial court, for good
                    cause, permits a belated motion. If the trial court grants a
                    belated motion and certifies the appeal, the court shall make a
                    finding that the certification is based on a showing of good
                    cause, and shall set forth the basis for that finding.


       App. R. 14(B)(1) (emphasis added).


[10]   The Summary Judgment Order was noted in the chronological case summary

       (“CCS”) on March 12, 2019. Kroger’s motion to certify this order for

       interlocutory appeal was filed on March 26, 2019, well within the thirty-day

       time limit of Appellate Rule 14(B)(1)(a), and we address the propriety of the

       trial court’s summary judgment order below.


[11]   The motion to reconsider order was also noted in the CCS on March 12, 2019.

       Kroger’s motion to certify this order for interlocutory appeal was filed on

       March 26, 2019, and would, at first blush, appear to be timely as well.

       However, under Ind. Trial Rule 53.4(B), a motion to reconsider is deemed

       denied if it is not ruled upon within five days. Snyder v. Snyder, 62 N.E.3d 455,




       Court of Appeals of Indiana | Opinion 19A-CT-1201 | January 15, 2020                Page 6 of 10
       459 (Ind. Ct. App. 2016).6 Kroger’s motion to reconsider was filed on February

       15, 2019, and, by operation of Trial Rule 53.4(B), was deemed denied five days

       later, on February 20, 2019. Hence, a request to certify the court’s order was

       due on March 22, 2019—thirty days after the motion to reconsider was deemed

       denied. Kroger did not file its motion to certify until March 26, 2019.

       Accordingly, Kroger’s motion to certify the court’s order on Kroger’s motion to

       reconsider was untimely. See Snyder, 62 N.E.3d at 459 (holding that husband’s

       notice of appeal from appealable interlocutory order was untimely where his

       motion to reconsider was deemed denied months earlier).


[12]   But even if we overlook this procedural failure, Kroger’s motion to certify the

       order on its motion to reconsider was untimely for yet another reason. It is well

       settled that “a motion to reconsider ‘shall not . . . extend the time for any

       further required or permitted action, motion, or proceeding under these rules.’”

       Johnson v. Estate of Brazill, 917 N.E.2d 1235, 1239 (Ind. Ct. App. 2009) (quoting

       T.R. 53.4(A)). Therefore, “a motion to reconsider does not toll the time period

       within which an appellant must file a notice of appeal.” Citizens Indus. Group v.

       Heartland Gas Pipeline, LLC, 856 N.E.2d 734, 737 (Ind. Ct. App. 2006) (citing

       T.R. 53.4), trans. denied.




       6
         This provision does not, however, deprive the trial court of the power to rule on a motion to reconsider after
       five days have passed. Id. at 458–59. Instead, a trial court has the inherent power to reconsider any previous
       ruling so long as the action remains in fieri, i.e., while the case remains pending before the court. Id. (citing
       Citizens Indus. Group v. Heartland Gas Pipeline, LLC, 856 N.E.2d 734, 737 (Ind. Ct. App. 2006), trans. denied;
       Stephens v. Irvin, 730 N.E.2d 1271, 1277 (Ind. Ct. App. 2000), aff’d on reh’g, trans. denied).

       Court of Appeals of Indiana | Opinion 19A-CT-1201 | January 15, 2020                                Page 7 of 10
[13]   Kroger’s motion to reconsider asked the trial court to overturn the December 13

       and January 23 Orders in which the trial court permitted Lomax to file a

       belated response to Kroger’s request for admissions. Thus, the motion to certify

       the MTR Order was, in essence, a request to certify the December 13 Order and

       the January 23 Order. If Kroger wished to certify those orders for interlocutory

       appeal, it should have done so within thirty days of the trial court’s orders

       thereon, i.e., no later than January 12 and February 22, 2019, respectively.

       Having failed to do so, Kroger could not extend the time to seek interlocutory

       appeal of those orders by filing a motion to reconsider. See Snyder, 62 N.E.3d at

       458–59 (holding that motion to reconsider did not extend time in which

       husband had to seek interlocutory appeal as of right); Johnson, 917 N.E.2d at

       1240 (same).7


[14]   Because Kroger failed to timely request that the trial court certify the December

       13 and January Orders for interlocutory appeal, any issue regarding the

       propriety of these orders is not properly before this court, and we decline to

       consider such arguments at this time.


                                             Summary Judgment
[15]   Kroger also argues that the trial court erred in denying its motion for summary

       judgment. Kroger’s motion for summary judgment was based wholly on the




       7
         In its motion to certify the trial court’s orders for interlocutory appeal, Kroger made no argument that good
       cause should permit belated certification of these orders for interlocutory appeal, nor did the trial court find
       that such good cause existed.

       Court of Appeals of Indiana | Opinion 19A-CT-1201 | January 15, 2020                                Page 8 of 10
       request for admissions that had been deemed admitted by Lomax’s failure to

       timely respond thereto. Kroger argues that the trial court’s rulings permitting

       Lomax to file a belated response to its request for admissions were erroneous

       and that the request for admissions should still be deemed admitted. Since these

       admissions included a concession that Lomax was entirely at fault for her

       injuries, Kroger argues there are no genuine issues of material fact and that it is

       entitled to judgment as a matter of law.


[16]   As noted above, however, Kroger did not timely seek to certify for interlocutory

       appeal the trial court’s orders granting Lomax additional time to file her

       response to Kroger’s request for admissions. The trial court’s rulings effectively

       permitted her to withdraw the previously-deemed-admitted admissions and file

       a belated response that denied Lomax was at fault. Because Kroger failed to

       timely certify these orders for interlocutory appeal, we will not consider the

       propriety of these orders.


[17]   Because the basis for Kroger’s motion for summary judgment was based on the

       admissions that had been withdrawn, and because Lomax’s belated responses

       to the request for admissions denied that she was at fault for her injuries, the

       trial court correctly concluded that Kroger was not entitled to summary

       judgment.


                                                   Conclusion
[18]   Kroger failed to timely obtain certification of the trial court’s orders granting

       Lomax additional time to respond to Kroger’s request for admissions and

       Court of Appeals of Indiana | Opinion 19A-CT-1201 | January 15, 2020       Page 9 of 10
       deeming her subsequently filed response as timely. Because Kroger’s motion for

       summary judgment was premised on Lomax’s admissions that had been

       withdrawn with the trial court’s permission, the trial court properly denied

       Kroger’s motion.


[19]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-1201 | January 15, 2020   Page 10 of 10
