MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 15 2019, 8:51 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Dana J. Phillips Bryce H. Bennett
Schiller Law Offices, LLC Drake T. Land
Carmel, Indiana Justin O. Sorrell
Riley Bennett Egloff LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Doreen White, November 15, 2019
Appellant-Plaintiff, Court of Appeals Case No.
19A-CT-967
v. Appeal from the Lake Circuit
Court
Joe Holland and Penske Truck The Honorable Marissa J.
Leasing Co., L.P., McDermott, Judge
Appellees-Defendants Trial Court Cause No.
45C01-1703-CT-52
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-967 | November 15, 2019 Page 1 of 10
[1] Doreen White appeals the trial court’s denial of her motion for leave to amend
the complaint, grant of Joe Holland’s motion to dismiss, and grant of Penske
Truck Leasing Co., L.P.’s, (Penske) motion for summary judgment, arguing
that the trial court erred in each ruling. Finding no error, we affirm.
Facts
[2] On June 9, 2015, White and Holland were involved in a car accident. On
March 24, 2017, White filed a complaint for damages against Holland, alleging
that his negligence caused the accident. White also included a claim against
Penske, arguing that Penske, as Holland’s employer, was vicariously liable for
Holland’s negligence under the theory of respondeat superior.
[3] In their July 12, 2017, answers to White’s complaint, both Holland and Penske
denied that Holland was employed by Penske.1 Holland and Penske further
denied that they were in an employer/employee relationship in their responses
to White’s discovery requests on August 11, 2017, and August 18, 2017,
respectively. On August 22, 2017, the trial court set a deadline of December 1,
2017, for additional motions to join parties or amend the pleadings. White did
not amend her complaint to include the correct defendant by this deadline.
[4] On November 2, 2017, Holland and Penske filed a motion to compel White to
respond to their written interrogatories and a request for production. The trial
1
Penske Logistics is Holland’s employer.
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court denied their motion on December 14, 2017, but nonetheless advised
White to respond before December 21, 2017. After receiving White’s discovery
responses on December 18, 2017, Holland and Penske notified White that the
responses were “incomplete and deficient[.]” Appellees’ App. Vol. II p. 42.
White did not amend or modify those responses.
[5] On February 2, 2018, Penske filed a motion for summary judgment, arguing
that Penske could not be held vicariously liable for any of Holland’s alleged
negligence because it was not Holland’s employer. In support of its motion,
Penske designated evidence in the form of Holland’s and Penske’s written
responses to White’s discovery requests.
[6] On June 8, 2018, White deposed Holland, and it was during this deposition that
White claimed to have learned for the first time that Holland was employed by
Penske Logistics and not Penske. Subsequently, the trial court granted White
two enlargements of time to respond to Penske’s original motion for summary
judgment. Still, White did not respond to the summary judgment motion and
did not designate any opposing evidence.
[7] On July 25, 2018, Holland and Penske filed a second motion to compel, which
the trial court granted on August 24, 2018. White did not respond to this
motion. On September 7, 2018, White allegedly attempted to file a motion for
leave to amend the complaint to include Holland’s actual employer. However,
the trial court never received the motion. In the meantime, on September 27,
2018, Holland and Penske filed a third motion to compel, which the trial court
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granted on October 16, 2018. With no word from White, Holland and Penske
filed a fourth motion to compel on October 17, 2018, on which the trial court
did not issue an order. The trial court also extended multiple discovery
deadlines for all parties.
[8] Finally, on November 9, 2018, Penske and Holland filed a joint motion to
dismiss White’s claims as discovery sanctions under Indiana Trial Rule
37(B)(2)(c) because White failed to comply with the trial court’s orders
compelling compliance with discovery. White never responded to the motion to
dismiss. The trial court conducted a November 26, 2018, hearing, at which time
White finally filed a proper motion for leave to amend her complaint. In that
complaint, White sought to add Penske Logistics as a new party and to add a
claim against Penske for negligent entrustment. On November 27, 2018,
Holland and Penske objected to White’s motion for leave to amend.
[9] After taking the various motions under advisement, on December 21, 2018, the
trial court issued an order denying White’s motion for leave to amend her
complaint, granting Holland’s motion to dismiss, and granting Penske’s motion
for summary judgment.2 On January 22, 2019, White filed a motion to correct
errors, which the trial court denied on March 28, 2019. White now appeals.
2
The trial court ruled that Penske’s motion to dismiss was moot because it had already granted Penske’s
motion for summary judgment.
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Discussion and Decision
I. Motion to Amend
[10] First, White argues that the trial court erred when it denied her motion for leave
to amend the complaint. Indiana Trial Rule 15(A) states, in pertinent part, that
“[a] party may amend his pleading once as a matter of course at any time before
a responsive pleading is served[.]” Here, the Appellees filed a response to
White’s original complaint on July 12, 2017. Because of this, under Trial Rule
15(A), White “may amend [her] pleading only by leave of court or by written
consent of the adverse party; and leave shall be given when justice so requires.”
[11] The trial court has broad discretion in granting or denying amendments to
pleadings, and we will reverse only if the trial court’s decision is clearly against
the logic and effect of the facts and circumstances, or if the trial court has
misinterpreted the law. Fleming v. Int’l Pizza Supply Corp., 707 N.E.2d 1033,
1036 (Ind. Ct. App. 1999). In determining whether the trial court erred in its
decision to grant or deny pleading amendments, “we look to a number of
factors, which include ‘undue delay, bad faith, or dilatory motive on the part of
the movant, repeated failure to cure deficiency by amendment previously
allowed, undue prejudice to the opposing party by virtue of the amendment,
and futility of the amendment.’” MAPCO Coal Inc. v. Godwin, 786 N.E.2d 769,
777 (Ind. Ct. App. 2003) (quoting Nyby v. Waste Mgmt., Inc., 725 N.E.2d 905,
915 (Ind. Ct. App. 2000)).
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[12] Here, the trial court determined that White’s motion for leave to amend was
“untimely and prejudicial to [Holland and Penske][.]” Appellant’s App. Vol. II
p. 15. We agree. Ever since White first filed suit against Holland and Penske,
there has been nothing but procedural confusion.
[13] First, White repeatedly failed to include the correct Penske defendant even after
learning through discovery on August 11 and August 18, 2017, that she had
filed suit against the wrong party. And despite the trial court’s December 1,
2017, deadline for amendments to the complaint, White did not meet the
deadline, causing further delay.
[14] Then, without explanation, for nearly a full year, White neglected to respond to
Holland’s and Penske’s multiple discovery requests or comply with the trial
court’s orders compelling her cooperation, claiming that she “did not receive
the mailed Requests for Admission and there is no evidence that Appellee[s]
served the Requests for Admission by email as required by Indiana Trial Rule
26(A.1).” Appellant’s Br. p. 11.3 In this day and age, we find it difficult to
believe that a party—represented by counsel—did not receive repeated
discovery requests or trial court orders. Moreover, even if that actually
happened, a reasonable party would take affirmative action to determine the
3
We note that the Chronological Case Summary and the accompanying appendices show that Holland and
Penske filed all documents and motions with the trial court in the correct fashion and sent notice to White’s
counsel multiple times. Moreover, the trial court granted two motions to compel, setting deadlines for
White’s compliance. She claims that she also did not receive these orders. Because White admitted that she
“remained in regular communication with the Lake County Clerk’s Office for weeks,” appellant’s br. p. 10,
her failure to respond to the various motions is that much more puzzling.
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status of the case and discovery if all had been silent for a full year. In sum, with
no plausible reason, White wholly failed to participate in this litigation,
ignoring deadlines, discovery requests, and court orders.
[15] Under these circumstances, the trial court did not err in concluding that White’s
dilatory filing of a motion for leave to amend her complaint was untimely and
prejudicial to Holland and Penske. By “offer[ing] no convincing reason for
foregoing the opportunity to fully present [her] claims in a more timely
fashion,” Hilliard v. Jacobs, 927 N.E.2d 393, 400 (Ind. Ct. App. 2010), White
seemingly circumvented procedure all in the name of ignorance.4 The trial court
was well within its discretion to deny White’s motion.
II. Motion to Dismiss
[16] Next, White argues that the trial court erred by granting Holland’s motion to
dismiss.5 “The trial court is vested with broad discretion in ruling on the issues
of discovery[.]” Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 399 (Ind.
Ct. App. 1997). For cases involving dismissal as a discovery sanction, we will
reverse a trial court’s decision only if it is against the logic and effect of the facts
4
As an aside, we admonish White for omitting approximately one year of facts and procedure from her brief
and for repeatedly claiming that she had not received any court documents or motions filed by the Appellees.
It is one thing to frame the facts in a light that benefits your side of the argument, but it is an entirely different
thing to wholly exclude key facts and circumstances and to cry foul about procedural deficiencies that do not
exist.
5
Despite White’s insistence that the trial court ruled on this as a Trial Rule 12(B)(6) motion for failure to
state a claim for which relief can be granted, the trial court confirmed that it had dismissed White’s claims
against Holland as a discovery sanction under Trial Rule 37. See generally Appellant’s App. Vol. II p. 18-19.
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and circumstances before the court. Id. “Whether to impose the sanction of
dismissal for refusal to comply with discovery orders is a matter for the trial
court’s discretion.” Id.
[17] Indiana Trial Rule 37(B)(2)(c) states, in pertinent part that:
(2) [i]f a party or an officer, director, or managing agent of a party
or an organization . . . fails to obey an order to provide or permit
discovery . . . the court in which the action is pending may make
such orders in regard to the failure as are just, and among others
the following:
(c) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient
party[.]
(Emphasis added). Here, the record is replete with evidence showing that
dismissal of White’s complaint against Holland was not in error.
[18] The prolonged discovery process was caused primarily by White’s repeated
failures to respond to Holland’s and Penske’s discovery requests. Even after the
trial court issued two orders requiring that White comply, she failed to do so.
Holland and Penske filed four motions to compel, two of which the trial court
granted, all to no avail. Moreover, White did not object to the motions to
compel, demonstrating that she either flatly refused to cooperate, overlooked
her obligations to respond, or disregarded the discovery requests altogether.
[19] Holland and Penske attempted to adequately prepare a defense, but they were
unable to do so because they did not have the proper information from White.
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Though dismissals may not be favored in Indiana, see Fulton v. Van Slyke, 447
N.E.2d 628, 634 (Ind. Ct. App. 1983), the trial court had the discretion to
impose such a sanction in this case given White’s constant delay and
inattentiveness. In sum, the trial court did not err by granting Holland’s motion
to dismiss pursuant to Trial Rule 37(B)(2)(c).
III. Motion for Summary Judgment
[20] Finally, White argues that the trial court erred by granting Penske’s motion for
summary judgment. Our standard of review for a motion for summary
judgment is well settled:
[W]hen we review a grant or denial of a motion for summary
judgment, our standard of review is the same as it is for the trial
court. The moving party must show there are no genuine issues of
material fact and it is entitled to judgment as a matter of law. If the
moving party carries its burden, then the non-moving party must
present evidence establishing the existence of a genuine issue of
material fact. In deciding whether summary judgment is proper,
we consider only the evidence the parties specifically designated to
the trial court. We construe all factual inferences in favor of the
non-moving party and resolve all doubts regarding the existence of
a material issue against the moving party.
Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015) (internal
citations and quotations omitted).
[21] “Under the doctrine of respondeat superior, an employer, who is not liable
because of its own acts, can be held liable for the wrongful acts of his employee
which are committed within the scope of employment.” Robbins v. Trustees of
Ind. Univ., 45 N.E.3d 1, 8 (Ind. Ct. App. 2015) (internal quotations omitted)
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(emphases added). Thus, a claimant cannot recover under a claim of respondeat
superior if there is no employer/employee relationship.
[22] In its brief in support of summary judgment, Penske designated evidence in the
form of the Appellees’ verified responses to White’s discovery requests in which
they attested that Penske was not Holland’s employer. Furthermore, White
admitted that she “learned that she had sued the wrong company entity,”
appellant’s br. p. 10, when she deposed Holland on June 8, 2018. In other
words, there is undisputed evidence that Penske Logistics—and not the named
Penske defendant—was Holland’s actual employer. The burden then shifted to
the non-movant (White) to present evidence that there was a genuine issue of
material fact. And White failed to designate any evidence in opposition to
Penske’s motion for summary judgment or to even file a brief.
[23] Given this background, we conclude that there is no genuine issue of material
fact and that because Penske is not Holland’s employer, White cannot recover
from Penske as a matter of law. Thus, the trial court did not err by granting
Penske’s motion for summary judgment.
[24] The judgment of the trial court is affirmed.
Kirsch, J., and Crone, J., concur.
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