Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any              Dec 30 2014, 9:54 am

court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

DOUGLAS M. GRIMES                              STEPHEN A. TYLER
Douglas M. Grimes, P.C.                        CORBIN R. FOWLER
Gary, Indiana                                  Johnson & Bell, P.C.
                                               Crown Point, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

WILLIAM LEE, SR.,                              )
                                               )
      Appellant-Respondent,                    )
                                               )
             vs.                               )      No. 71A03-1404-CT-109
                                               )
ANONYMOUS PSYCHOLOGIST I,                      )
                                               )
      Appellee-Petitioner.                     )


                   APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                        The Honorable Margot F. Reagan, Judge
                            Cause No. 71D04-1307-CT-181


                                  December 30, 2014

              MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Senior Judge
                                   STATEMENT OF THE CASE

        William Lee, Sr., appeals from the trial court’s order granting a motion for summary

judgment filed by Anonymous Psychologist I (“the Doctor”) in a state court action brought
                                                                       1




by the Doctor seeking a preliminary determination of law as to the timeliness of the filing

of Lee’s proposed complaint. Lee contends that the trial court abused its discretion by

denying his request for additional time in which to respond to the Doctor’s summary

judgment motion. He also argues that the trial court erred as a matter of law by determining

that his proposed complaint alleging malpractice against the Doctor and filed with the

Indiana Department of Insurance was time-barred by the statute of limitations. Concluding

that the trial court did not err, we affirm.

                            FACTS AND PROCEDURAL HISTORY

        The Doctor is a psychologist who has a private practice in South Bend. Lee, who

sought employment with the Elkhart Police Department in 2005, was evaluated by the

Doctor as part of the police department’s officer candidate selection process. The Doctor

cleared Lee for police work, and Lee was hired by the department in June 2005.

        In 2008, Lee was involved in an on-duty shooting during the course of which he

wounded a suspect.         Lee was referred to the Doctor after this incident for another

psychological evaluation. The Doctor concluded that Lee “was not showing psychological

problems as a result of this shooting” and cleared Lee to return to active duty. Appellee’s

App. p. 23.


1
  Anonymous Psychologist I was referred to as such in the proceedings before the Indiana Department of
Insurance and in the petition he filed in state court. Although he has agreed to allow his actual name to be
used in his responsive brief, we will not use his actual name in this opinion.

                                                     2
       Later, in February 2009, Lee was involved in another shooting while on duty. Lee

and a fellow officer were pursuing a fleeing female suspect when she fired shots, striking

Lee’s fellow officer in the face. As Lee prepared to shoot at the suspect, she yelled, “I give

up.” Id. at 25. Lee did not receive counseling for this incident.

       In November 2009, a complaint was made to the police department alleging that

Lee engaged in sexual misconduct while on duty. Lee allegedly patted a female employee

of a convenience store on the buttocks and stood behind her in a sexually provocative way.

The convenience store manager filed the complaint with the police department after

reviewing the store’s surveillance videotape. A second allegation of on-duty sexual

misconduct was filed against Lee sometime prior to July 21, 2010. Lee was alleged to have

touched the breast of a female employee of a pizza restaurant while he was on duty.

       As a result of the two sexual misconduct complaints, the police department referred

Lee to the Doctor for a psychological evaluation. Lee submitted to a variety of written

psychological tests on July 21, 2010, and he was interviewed by the Doctor the next day.

In his written report dated July 27, 2010, the Doctor recommended that Lee undergo

counseling sessions with another therapist, Anonymous Psychologist II. There is nothing

in the record to suggest that the Doctor treated or provided professional services to Lee at

any time after July 27, 2010. The Doctor referred Lee to Anonymous Psychologist II.

Anonymous Psychologist II saw Lee for the first time on August 25, 2010, and continued

to treat him until December 14, 2010.

       Beginning on January 21, 2011, Lee commenced receiving treatment from Dr.

Stephanie Wade. During his first visit with Dr. Wade, Lee was diagnosed with Post-

                                              3
Traumatic Stress Disorder (“PTSD”).

       Lee filed a proposed complaint with the Indiana Department of Insurance on

December 12, 2012, alleging that the Doctor was negligent in failing to diagnose him with

PTSD. The Doctor filed a petition in the Lake County Superior court requesting a

preliminary determination of law and filed a motion for summary judgment. On May 15,

2013, Lee requested a change of venue to St. Joseph County, to which the Doctor agreed.

Subsequently, on September 9, 2013, the Doctor filed a motion for summary judgment

based on the Doctor’s earlier petition seeking a preliminary determination of law. On

September 22, 2013, Lee filed a verified response to that request and also filed a

“Declaration” with the trial court in which he informed the trial court of his busy schedule

and requested additional time in which to respond to the motion for summary judgment.

On October 8, 2013, the Doctor filed a reply memorandum in support of his motion for

summary judgment.

       On November 1, 2013, the trial court scheduled a hearing on the Doctor’s motion

for summary judgment, setting the hearing for November 26, 2013. On November 7, 2013,

Lee filed a “Praecipe.” In that document Lee requested that the trial court rule on his

“Declaration” filed on September 22, 2013, in which he had asked for additional time in

which to respond to the motion for summary judgment. On December 10, 2013, Lee

withdrew his “Praecipe” and filed a motion for enlargement of time to respond to the

Doctor’s petition and motion for summary judgment.

       On January 10, 2014, the trial court granted the Doctor’s motion for summary

judgment and denied Lee’s request for additional time in which to respond. On February

                                             4
7, 2014, Lee filed a verified motion for certification of an interlocutory order, seeking to

appeal the trial court’s January 10, 2014 order. Lee contended that the trial court’s order

did not state that it was a final and appealable order. On March 5, 2014, the trial court

entered two orders. In the first order, the trial court clarified that its January 10, 2014 order

was meant to be a final and appealable order; therefore, Lee could pursue an appeal from

that order without interlocutory certification. In the second order, Lee’s request for

additional time in which to respond to the Doctor’s petition and his request for additional

time to respond to the motion for summary judgment were denied by the trial court, which

again granted the Doctor’s motion for summary judgment. More specific details about

those orders will be set forth in the discussion section of this opinion. Lee now appeals.

                              DISCUSSION AND DECISION

               I. DENIAL OF MOTION FOR ENLARGMENT OF TIME

       Lee argues that the trial court abused its discretion by denying his motion for

enlargement of time in which to respond to the Doctor’s motion for summary judgment.

More specifically, he appears to claim that the agreed motion for change of venue from

Lake County tolled the time for his response to the Doctor’s motion for summary judgment.

       “Trial Rule 56(C) provides that a party opposing a motion for summary judgment

has thirty days to serve a response or any other opposing affidavits.” HomEq Servicing

Corp. v. Baker, 883 N.E.2d 95, 98 (Ind. 2008). Additionally, Trial Rule 56 (I) provides,

“For cause found, the Court may alter any time limit set forth in this rule upon motion made

within the applicable time limit.” (emphasis added). Further, we have held that “not only

must a nonmovant file a response or request for a continuance during the initial thirty-day

                                               5
period, but the nonmovant ‘must also file a response, file an affidavit pursuant to T.R.

56(F), or show cause for alteration of time pursuant to T.R. 56(I) during any additional

period granted by the trial court.’” Miller v. Yedlowski, 916 N.E.2d 246, 251 (Ind. Ct.

App. 2009), trans. denied (emphasis added) (quoting Thayer v. Gohil, 740 N.E.2d 1266,

1268 (Ind. Ct. App. 2001), trans. denied). Thus, the trial court in its sole discretion cannot

consider summary judgment filings of the nonmoving party filed subsequent to any time

period provided for by rule. See Borsuk v. Town of St. John, 820 N.E.2d 118, 124 n.5 (Ind.

2005) (citing Desai v. Croy, 805 N.E.2d 844, 848-49 (Ind. Ct. App. 2004), trans. denied).

       Here, the Doctor served the summary judgment motion on Lee on April 24, 2013.

The motion was served by mail, so Lee was entitled to an additional three days beyond the

thirty-day response period provided for by Trial Rule 56(C). Ind. T.R. 56(C); Ind. T.R.

6(E). Lee’s response to the motion, request for an extension of time or T.R. 56(F)

declaration was due no later than May 27, 2013. Instead, during that time period, on May

15, 2013, Lee filed a motion for change of venue from Lake County, to which the

chronological case summary reflects the Doctor agreed to on May 31, 2013. Pursuant to

Indiana Trial Rule 78, the Lake County Superior court was restricted to determinations of

emergency matters only until an order for the change of venue was granted. The change

of venue motion was granted on July 26, 2013.

       There appears to be no authority under the trial rules or case law to support the

contention that Lee’s motion for change of venue from the county tolled the time period

under T.R. 56, but there appears to be some analogous authority to reach the conclusion

that it does not. See e.g., State ex rel. Daily v. Harrison, 215 Ind. 106, 109-10, 18 N.E.2d

                                              6
770, 772 (1939) (motion for change of venue filed on last day allowed for filing amended

complaint did not toll the time to amend). However, assuming arguendo that the motion

tolled the time period for Lee’s response, his argument fails nonetheless.

       On September 9, 2013, the Doctor filed a request with the St. Joseph Superior court

for the entry of an order granting summary judgment based on the original petition. On

September 22, 2013, Lee filed a verified response to the request and also filed a

“Declaration” in which he informed the trial court of his busy schedule and requested

additional time in which to respond to the motion for summary judgment. Therefore,

giving Lee the benefit of the doubt, the time period for a response had long since passed

when the Doctor filed his request with the St. Joseph Superior court. Additionally, as noted

above, a trial court cannot in its sole discretion consider summary judgment filings of the

nonmoving party filed subsequent to the time period provided for by rule. See Desai, 805

N.E.2d at 848-49. The trial court did err by denying Lee’s request for additional time in

which to respond to the motion for summary judgment.

              II. RULING ON MOTION FOR SUMMARY JUDGMENT

       Lee also claims that the trial court erred by granting the Doctor’s motion for

summary judgment. Our Supreme Court has recently stated our standard of review as

follows:

       We review summary judgment de novo, applying the same standard as the
       trial court: “Drawing all reasonable inferences in favor of . . . the non-
       moving parties, summary judgment is appropriate ‘if the designated
       evidentiary matter shows that there is no genuine issue as to any material fact
       and that the moving party is entitled to judgment as a matter of law.’” “A
       fact is ‘material’ if its resolution would affect the outcome of the case, and
       an issue is ‘genuine’ if a trier of fact is required to resolve the parties’

                                             7
      differing accounts of the truth, or if the undisputed material facts support
      conflicting reasonable inferences.”

      The initial burden is on the summary-judgment movant to “demonstrate[ ]
      the absence of any genuine issue of fact as to a determinative issue,” at which
      point the burden shifts to the non-movant to “come forward with contrary
      evidence” showing an issue for the trier of fact. And “[a]lthough the non-
      moving party has the burden on appeal of persuading us that the grant of
      summary judgment was erroneous, we carefully assess the trial court’s
      decision to ensure that he was not improperly denied his day in court.”

      ....

      Even though Indiana Trial Rule 56 is nearly identical to Federal Rule of Civil
      Procedure 56, we have long recognized that “Indiana’s summary judgment
      procedure . . . diverges from federal summary judgment practice.” In
      particular, while federal practice permits the moving party to merely show
      that the party carrying the burden of proof lacks evidence on a necessary
      element, we impose a more onerous burden: to affirmatively “negate an
      opponent’s claim.” Our choice to heighten the summary judgment burden
      has been criticized because it may let summary judgment be precluded by as
      little as a non-movant’s “mere designation of a self-serving affidavit.”

      That observation is accurate, but using it as the basis for criticism overlooks
      the policy behind that heightened standard. Summary judgment “is a
      desirable tool to allow the trial court to dispose of cases where only legal
      issues exist.” But it is also a “blunt . . . instrument,” by which “the non-
      prevailing party is prevented from having his day in court[]”. We have
      therefore cautioned that summary judgment “is not a summary trial,”; and
      the Court of Appeals has often rightly observed that it “is not appropriate
      merely because the non-movant appears unlikely to prevail at trial.” In
      essence, Indiana consciously errs on the side of letting marginal cases
      proceed to trial on the merits, rather than risk short-circuiting meritorious
      claims.

Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014) (citations omitted).

      The Doctor’s motion for summary judgment is well-suited for the summary

judgment process because only legal issues exist; namely, whether Lee’s proposed




                                            8
complaint was filed within the period required under the appropriate statute of limitations.

The trial court found that it was not, and we agree.

       The Indiana Medical Malpractice Act (“the Act”) provides in pertinent part as

follows:

       A claim, whether in contract or tort, may not be brought against a health care
       provider based upon professional services or health care that was provided
       or that should have been provided unless the claim is filed within two (2)
       years after the date of the alleged act, omission, or neglect, except that a
       minor less than six (6) years of age has until the minor’s eighth birthday to
       file.

Ind. Code §34-18-7-1(b)(1998).        “This is an ‘occurrence’ statute as opposed to a

‘discovery’ statute.” Brinkman v. Bueter, 879 N.E.2d 549, 553 (Ind. 2008). “The time

therefore begins to run on the date the alleged negligent act occurred, not on the date it was

discovered.” Id. (citing Martin v. Richey, 711 N.E.2d 1273, 1278 (Ind. 1999)).

       There are, however, certain instances in which the statute of limitations is applied

differently to particular plaintiffs. For example, in Martin our Supreme Court held that the

statute of limitations provision as applied to her unconstitutionally violated the Privileges

and Immunities Clause and the Open Courts Clause of the Indiana Constitution because

she was required to file her claim before she was able to discover the alleged malpractice

and resulting injury. 711 N.E.2d at 1279. In Van Dusen v. Stotts, 712 N.E.2d 491 (Ind.

1999), the Supreme Court construed the statute of limitations to permit plaintiffs who suffer

from diseases or medical conditions with long periods of latency, causing the plaintiffs to

be unable to discover the malpractice and the resulting injury until after the two-year

occurrence based statutory period, to file their claims within two years of the date of


                                              9
discovery, or the discovery of facts that should lead to the discovery of the malpractice.

712 N.E.2d at 497.

       Here, the alleged negligent act or omission at issue was the Doctor’s failure to

diagnose Lee with PTSD. The undisputed facts designated for summary judgment reveal

that the Doctor did not treat Lee at any time after July 27, 2010. Consequently, the alleged

negligence could only have occurred on or before that date. Therefore, the two-year statute

of limitations began to run on July 27, 2010, and expired on July 27, 2012. Lee’s proposed

complaint was filed with the Department of Insurance on December 12, 2012, well after

the expiration of the statute of limitations.

       Dr. Wade diagnosed Lee with PTSD on January 21, 2011, well within the two-year

statute of limitations. Consequently, Lee had nearly a year and one-half to file his proposed

complaint before the statute of limitations expired. In Overton v. Grillo, 896 N.E.2d 499

(Ind. 2008), a case involving negligence alleged against a healthcare provider not subject

to the Act, our Supreme Court relied on cases decided under the Act when discussing the

appropriate trigger dates for purposes of applying the statute of limitations. The Supreme

Court stated that “[i]f a trigger date occurs before the expiration of the limitations period,

the plaintiff’s claim will be barred unless filing before the expiration of the two-year period

was not possible with reasonable diligence. Id. at 502. The plaintiff’s claim was untimely

filed because there was nothing to prevent her from filing after the trigger date in the nine

months remaining in the limitations period. Herein, the trial court in this case correctly

concluded that the trigger date was January 21, 2011, and that the statute of limitations

expired on July 27, 2012. Lee designated no evidence to the contrary to support a claim

                                                10
that his complaint could not have been filed with reasonable diligence. Thus, the trial court

was correct in determining as a matter of law that Lee’s complaint was time-barred. We

find that the trial court did not err by granting summary judgment on this basis in favor of

the Doctor.

                                      CONCLUSION

       In light of the foregoing, we affirm the trial court’s decision.

       Affirmed.

BAKER, J., and RILEY, J., concur.




                                              11
