dissenting.
I respectfully dissent from the majority opinion. I would follow the holding of Farm Credit Servs. v. Tucker, 792 N.E.2d 565 (Ind.Ct.App.2003), in finding that Trial Rule 56 is not so rigid as the majority would hold.
Initially, I note that summary judgment is a lethal weapon and courts must be ever mindful of its aims and targets and beware of overkill in its use. Vaughn v. Daniels Co. (West Virginia), Inc., TT7 N.E.2d 1110, 1117 (Ind.Ct.App.2002). Inasmuch as summary judgment is disfavored in our law, we should not interpret our trial rules so as to encourage trial courts to essentially enter default judgments against litigants who are able to show cause for their failure to respond within thirty days.
As we observed in Farm Credit, Rule 56(I) does not require the adverse party to request an extension of time within the thirty-day period. The plain language of the rule states that the trial court may alter any time limit found in Rule 56 on one condition: the trial court finds cause to do so. Trial Rule 56(D). Here, it is apparent that the trial court found cause to alter the time in which Croy could file her response inasmuch as the trial court "considered the statements and arguments of counsel...." Appellant's Br. p. 15. Those statements included Croy's motion to permit the filing of her response in which her attorney stated that he was unable to respond in a timely fashion because he was in the middle of an out-of-county jury trial and that he had recently become responsible for a wide variety of jury trials previously set that had been scheduled to be tried by his father, who was ill. Appellant's App. p. 86-87.
Moreover, I find little value in one of the . majority's justifications for disregarding Farm Credit. The majority determines that Farm Credit is an anomaly because no published decision has followed it. Op. at 849. However, Farm Credit was handed down a mere nine months ago. The fact that a nine-month-old published case has not been cited in other reported cases in no way affects its precedential value. To be sure, only two cases have mentioned Rule 56(I) since Farm Credit was handed down. JSV, Inc. v. Hene Meat Co., Inc., acknowledged the existence of some split in authority as to whether a trial court has the discretion to allow a party to file an untimely summary judgment response but *852did not reach the issue because no cause was shown for extending the thirty-day deadline. 794 N.E.2d 555, 558 (Ind.Ct. App.2008) ("Compare Thayer v. Gohil, 740 N.E.2d 1266, 1267-68 (Ind.Ct.App.2001), (holding that where there has been no timely response or designation of materials in opposition to a summary judgment motion, the trial court has no discretion to consider untimely-filed materials), trans. denied with Stemm v. Estate of Dunlap, 717 N.E.2d 971, 974 (Ind.Ct.App.1999) (holding trial court had discretion to consider summary judgment response not filed until after summary judgment had already been granted)"). See also Sharp v. Town of Highland, 665 N.E.2d 610, 617 n. 4 (Ind.Ct.App.1996), trans. denied, (saying that where the non-moving party's response was filed more than thirty days after the filing of a motion for summary judgment, the trial court was authorized to alter the thirty-day time limit pursuant to Trial Rule 56(D)). And Coleman v. Charles Court, LLC, followed Seufert without reference to or discussion of Farm Credit. 797 N.E.2d 775 (Ind.Ct.App.2003). Given the relatively short amount of time since Farm Credit was handed down and the existence of a split of authority, the fact that it has not been cited is not a condemnation of its authority.
In sum, "[the wording of Section (PD) itself does not appear to import such rigidity as to forbid any discretion on the part of the trial court absent compliance with a mandatory precondition." Farm Credit, 792 N.E.2d at 569. I would therefore affirm the trial court's decision to permit the filing of Croy's response.
Furthermore, it is my view that the trial court correctly denied Dr. Desai's motion for summary judgment. When considering the designated evidence that Croy submitted to the trial court, there are genuine issues of material fact, specifically, expert testimony as to whether Dr. Desai violated the applicable standard of care, that must be decided by the fact-finder. Therefore, I would affirm the decision of the trial court.