AMW Investments v. The Town of Clarksville ( 2024 )

FILED
Jan 19 2024, 9:18 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
AMW INVESTMENTS, INC. THE TOWN OF CLARKSVILLE
Matthew J. Hoffer C. Gregory Fifer
Shafer & Associates, P.C. Jeffersonville, Indiana
Lansing, Michigan Scott D. Bergthold
Law Office of Scott D. Berghold,
Kenneth C. Pierce PLLC
Blanton & Pierce, LLC Chattanooga, Tennessee
Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
AMW Investments, Inc. et al., January 19, 2024
Appellants, Court of Appeals Case No.
23A-PL-508
v. Appeal from the Clark Circuit
Court
The Town of Clarksville, et al., The Honorable Marsha Owens
Appellees. Howser, Special Judge
Trial Court Cause No.
10C04-1905-PL-51
Opinion by Judge Bailey
Judge May concurs.
Judge Felix concurs in result with separate opinion.
Bailey, Judge.
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 1 of 20
Case Summary
[1] AMW Investments, Inc. (“AMW”) appeals the trial court’s order finding it in
contempt of an order compelling discovery responses. AMW raises one
dispositive issue, which we restate as: whether the contempt order must be
reversed because the trial court abused its discretion when it issued an order
compelling AMW to respond to the Town of Clarksville’s (“Town”) discovery
requests without considering objections raised in AMW’s First Supplemental
Answers.
[2] We reverse and remand with instructions.
Facts and Procedural History
[3] AMW owns real estate located at 4505 Highway 31 East, Clarksville, Indiana,
and it leases the property to Midwest Entertainment Ventures, Inc. (d/b/a
Theatre X) (“MEV”),1 an adult entertainment venue. AMW and MEV share
the same principal business address in Michigan.
[4] In May 2019, Town revoked Theatre X’s adult business license due to zoning
ordinance violations. On May 6, 2019, MEV filed a Petition of Appeal of
Revocation of Adult Entertainment License in the Clark Circuit Court. Town
filed an Answer to the Petition, as well as counterclaims against MEV and
1
MEV is not a party to this appeal, as Town’s contempt motion was filed against AMW only.
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 2 of 20
AMW, seeking, in part, a preliminary injunction enjoining MEV and AMW
from operating Theatre X in violation of zoning ordinances. MEV and AMW
then filed motions to dismiss Town’s counterclaims and motion for preliminary
injunction.
[5] In November 2019, the trial court denied the motions to dismiss and granted
Town’s motion for preliminary injunction. The preliminary injunction placed
specific operating restrictions upon Theatre X, including limiting its hours of
operation. On December 19, AMW and MEV filed an interlocutory appeal of
the preliminary injunction order.
[6] On December 17, 2019, Town filed a motion in which it sought an order
imposing fines for AMW’s and MEV’s ordinance violations. In February 2020,
AMW and MEV served discovery documents upon Town. On February 25,
the trial court issued an order on Town’s motion for fines, stating, in relevant
part, “[b]ecause the Court’s Order of November 21, 2019, is currently on
appeal, the Court finds it is without authority to order the relief sought by the
Town.” Town’s App. v. II at 194. However, because it found “these issues
may arise again,” the trial court made six pages of findings related to the Town
having “Satisfied Its Notice Obligations” and AMW being “jointly responsible
with MEV for the maintenance of Theatre X.” Id. at 194, 198.
[7] Town provided responses to AMW’s and MEV’s discovery requests. On May
28, 2020, Town propounded its own discovery requests upon AMW and MEV;
specifically, interrogatories, requests for production of documents, and requests
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 3 of 20
for admissions. Thereafter, AMW requested and obtained an extension of time
in which to respond to the discovery requests. On July 15, 2020, AMW
submitted its responses to discovery, and, for each and every discovery request,
replied only:
AMW objects on the basis that discovery is premature and
inappropriate during the pendency of appeal. AMW has
consistently challenged the propriety of ‘counterclaims’ in the
context of an administrative or municipal appeal. That issue is
currently on appeal in the context of AMW’S appeal of the Order
Granting Preliminary Injunction on November 21, 2019. The
Court explicitly noted in its February 25, 2020[,] Order
Regarding Motion for Imposition of Fines that it presently lacks
authority during the pendency of the Appeal. This discovery
request was issued after the divesture of jurisdiction and during
the period jurisdiction was divested by way of appeal. All further
and additional objections are reserved.
August 12, 2021, Appealed Order Granting Motion to Compel at 2-3.
[8] After complying with the Trial Rule 26(F) requirement to attempt informal
resolution of the discovery dispute and reaching no such resolution, on August
28, 2020, Town filed a Motion to Compel discovery responses. In that motion,
Town noted, “Nor did MEV or AMW raise any substantive objection other
than ‘jurisdiction was divested’ by their appeal, and that the ‘discovery request
was issued after the divestiture of jurisdiction.’ … Thus, MEV and AMW have
waived any objection other than the jurisdictional one.” AMW App. v. II at
81. On September 4, 2020, AMW filed its response in which it argued only that
the trial court had been “divested of jurisdiction,” id. at 89, over the case
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 4 of 20
because AMW’s interlocutory appeal was pending, and that “any discovery”
regarding issues raised on appeal “is foreclosed as this Court currently lacks
jurisdiction over those issues,” id. at 91. In a docket entry on September 23, the
trial court stated: “Because this case is on appeal, the trial court will not rule on
matters until the appeal has been decided.” Id. at 16 (CCS).
[9] In October 2020, a panel of this Court affirmed the preliminary injunction in
Town’s favor, and in March 2021, the Supreme Court denied transfer. Midwest
Ent. Ventures, Inc. v. Town of Clarksville, 158 N.E.3d 787, 789 (Ind. Ct. App.
2020), trans. denied. On April 29, Town filed a reply brief in support of its
Motion to Compel Discovery. The reply brief argued that (1) the interlocutory
appeal had not stayed discovery, and (2) AMW had “waived all other
objections to the discovery requests” by failing to raise them in any of its
discovery responses. AMW App. v. II at 107. Town devoted a three-paragraph
section of its brief to the latter argument.
[10] On that same date, the trial court held a pretrial conference and scheduled a
June 21, 2021, hearing on the motion to compel discovery, which was
subsequently rescheduled to July 8, 2021. Prior to the July 2021 hearing,
AMW did not file any additional briefing or other documents in response to
Town’s claims that AMW had waived all objections other than jurisdiction.
On June 18, 2021, AMW tendered to Town its First Supplemental Responses
to Discovery, in which it raised multiple objections, including objections related
to relevance, attorney-client privilege, vagueness, overbreadth, unduly
burdensome requests, harassment, accountant-client privilege, and attorney
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 5 of 20
work product doctrine. On July 8, 2021, Town filed a supplemental brief in
support of its motion to compel, arguing again that AMW had waived any
discovery objection other than the original objection related to the trial court’s
alleged lack of jurisdiction.
[11] On July 9, the trial court conducted a hearing on Town’s Motion to Compel
Discovery. On August 12, 2021, the trial court issued its “Findings and Order
Granting Respondent[’]s Motion to Compel Discovery.” August 12, 2021,
Appealed Order at 1. The court order found that MEV’s and AMW’s theory
that they were not required to respond to discovery because the trial court
lacked jurisdiction while the interlocutory appeal was pending was without
merit. In so holding, the trial court cited Indiana Appellate Rule 14(H), which
states in relevant part, “An interlocutory appeal shall not stay proceedings in
the trial court unless the trial court or a judge of the Court of Appeals so
orders.” Id. The trial court noted:
No judge of the Court of Appeals ordered a stay of proceedings.
Neither did this Court. The Court did note in its Order
Regarding Motion for Imposition of Fines that it lacked authority
to grant the Town’s request for $770,000 in fines during the
appeal (Feb. 25, 2020, Fines Order at 2), but it never stated it
lacked jurisdiction over the case or that any proceedings
(including discovery) were stayed. In fact, this Court ruled on
several matters in that same February 25, 2020[,] Order as the
Court found “these issues may arise again.” (Id.)
Id. at 5-6.
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 6 of 20
[12] The trial court also found that AMW and MEV had waived any discovery
objections that they had “failed to raise in their original responses.” Id. at 6-7.
In support, the trial court noted that the discovery rules require a party
responding to discovery to answer the requests or else state an objection and the
reasons for the objection. The court also cited Marshall v. Woodruff, 631 N.E.2d
3, 6 (Ind. Ct. App. 1994), as support for its finding that “[a] party that fails to
timely assert that information is privileged or otherwise undiscoverable in his
response waives reliance on those objections.” Id. at 6. The trial court ordered
AMW and MEV to answer Town’s discovery requests within thirty days and
“withhold nothing on the basis of any objection that they failed to raise in their
initial responses.” Id. at 7.
[13] On September 13, 2021, AMW tendered to Town its second supplemental
discovery responses. On November 8, 2021, Town filed a motion to hold
AMW2 in contempt of the court’s August order compelling discovery responses.
On that same date, AMW filed an Affidavit with its Initial, First Supplemental,
and Second Supplemental discovery responses attached thereto. On January
18, 2023, AMW filed its response to Town’s motion for contempt, referencing
the November 8 affidavit and attached supplemental discovery responses.
[14] The trial court conducted a hearing on the motion for contempt on January 19,
2023. In its February 7, 2023, order holding AMW in contempt of the August
2
The Town did not file a similar motion against MEV.
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 7 of 20
12, 2021, order compelling discovery responses, the trial court specifically noted
that AMW’s first supplemental responses that were tendered on June 18, 2021,
were “belated.” Appealed February 7, 2023, Order at 4. The court reiterated
that, in complying with the order compelling discovery responses, AMW was
“not permitted to raise any objections, or withhold any information, when
producing discovery.” Id. at 5. The trial court found that AMW had
“continued to object, and withhold documents, based on relevance and
privilege[] objections that the Discovery Order held were waived.” Id. at 7.
The court found that those actions had violated the Discovery Order.
[15] The trial court imposed upon AMW a $30,000 civil sanction “to coerce
AMW’s compliance with the Discovery Order,” but noted that “AMW can
avoid this fine by complying with the Discovery Order—by fully answering the
Town’s discovery requests, providing the entirety of every responsive
document, and withholding (including by redaction) nothing therefrom—within
30 days of this Order.” Id. at 9. The court also found AMW liable for Town’s
attorney fees and expenses incurred in addressing AMW’s failure to comply
with the Discovery Order. This appeal ensued.
Discussion and Decision
Standard of Review
[16] AMW appeals the trial court’s order finding it in contempt of the order
compelling discovery responses and, in so doing, challenges the underlying
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 8 of 20
order compelling discovery responses.3 We review those orders for an abuse of
discretion.
Trial courts “stand much closer than an appellate court to the
currents of litigation pending before them,” so they are better
positioned to assess and manage discovery matters. Whitaker v.
Becker, 960 N.E.2d 111, 115 (Ind. 2012). They accordingly have
“wide discretionary latitude,” Vanway v. State, 541 N.E.2d 523,
527 (Ind. 1989), and their orders carry “a strong presumption of
correctness,” Gonzalez v. Evans, 15 N.E.3d 628, 633 (Ind. Ct.
App. 2014), trans. denied; see McCullough [v. Archbold Ladder Co.],
605 N.E.2d [175,] 180 [Ind. 1993]. We will not overturn a
decision absent clear error and resulting prejudice. See Ind. Trial
Rule 61; Vanway, 541 N.E.2d at 527.
Care Group Heart Hosp., LLC v. Sawyer, 93 N.E.3d 745, 757 (Ind. 2018).
Timeliness of AMW’s Discovery Responses
[17] AMW filed its initial discovery responses on July 15, 2020, and those responses
objected to the discovery requests solely on the grounds that the trial court
allegedly lacked jurisdiction to rule upon discovery while the interlocutory
appeal was pending. AMW admittedly raised no other objections in its initial
discovery response. However, on June 18, 2021, which was over two weeks
before the July 9 hearing on Town’s motion to compel discovery, AMW
supplemented its discovery responses; in its First Supplemental Responses,
3
This Court has jurisdiction to review both the underlying order compelling discovery and the contempt
order. See, e.g., Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317, 322 (Ind. Ct. App. 2006).
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 9 of 20
AMW raised additional discovery response objections, such as relevance and
attorney-client privilege. In its August 12, 2021, order compelling AMW to
respond to the discovery requests, the trial court found that AMW was not
permitted to rely upon any objection other than the one raised in its initial—i.e.,
July 15, 2020—discovery response. Thus, the trial court refused to consider any
of the objections AMW raised in its June 18 supplemental discovery response.
It is that decision which AMW now appeals.4
[18] Pursuant to Trial Rule 26(B)(1), a party “may obtain discovery regarding any
matter, not privileged, which is relevant to the subject-matter involved in the
pending action whether it relates to the claim or defense of the party seeking
discovery or the claim or defense of any other party[.]” The purpose of
Indiana’s discovery rules is “to allow a liberal discovery procedure” for the
purposes of providing litigants “with information essential to the litigation of all
relevant issues, eliminat[ing] surprise[,] and … promot[ing] settlement.”
Canfield v. Sandock, 563 N.E.2d 526, 528 (Ind. 1990).
4
AMW argues, in addition, that its jurisdictional objection in its initial discovery response was correct;
however, we hold that objection was clearly incorrect, as no stay of the proceedings had been issued. See Ind.
Appellate Rule 14(H) (“An interlocutory appeal shall not stay proceedings in the trial court unless the trial
court or a judge of the Court of Appeals so orders.”); Battering v. State, 150 N.E.3d 597, 602 (Ind. 2020)
(emphasis original) (“A plain reading of [Indiana Appellate Rule 14(H)] provides that an interlocutory appeal
only constitutes a stay if the trial court or the Court of Appeals so orders.”).
AMW also argues on appeal that the Town waived its claim that AMW waived any objections not contained
in its original discovery response, e.g., relevance. AMW asserts that Town waived that claim by not
sufficiently raising it in the trial court. However, that assertion is incorrect, as Town clearly raised the waiver
argument in both its August 28, 2020, Motion to Compel and its April 29, 2021, Reply Brief in Support of
Motion to Compel. See AMW’s App. at 81; Town’s App. v. II at 234-238. And AMW had the opportunity
to—and did—respond to those arguments.
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 10 of 20
[19] Discovery requests such as interrogatories, requests for production of
documents, and admissions “shall be answered separately and fully in writing
under oath, unless [they are] objected to, in which event the reasons for
objections shall be stated in lieu of an answer.” T.R. 33(B) (regarding
interrogatories); see also, T.R. 34(B) (requiring a written response to a request for
production of documents “unless it is objected to… in which event the reasons
for objection shall be stated”); T.R. 36(A) (providing that, “if objection is
made” to a request for admission, “the reasons therefore shall be stated”). 5
[20] Indiana Trial Rule 26(E) not only allows supplementation of discovery
responses that were not “complete when made[,]” but requires such
supplementation. T.R. 26(E). Trial Rule 26(E)(a) and (b) states, “A party is
under a duty seasonably to amend a prior response if he obtains information
upon the basis of which (a) he knows that the response was incorrect when
made, or (b) he knows that the response though correct when made is no longer
true and the circumstances are such that a failure to amend the response is in
substance a knowing concealment.” See also, e.g., Morse v. Davis, 965 N.E.2d
148, 160 (Ind. Ct. App.) (citing Johnson v. Wait, 947 N.E.2d 951, 962
(Ind.Ct.App.2011), trans. denied) (“Indiana Trial Rule 26(E) requires parties to
supplement discovery responses after the initial response.”), trans. denied; Lucas
v. Dorsey Corp., 609 N.E.2d 1191, 1196 (Ind. Ct. App. 1993) (“The duty
5
Thus, as indicated by the plain language of our discovery rules, a “response” to discovery is an “answer”
and/or an “objection.” See, e.g., T.R. 33(B).
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 11 of 20
seasonably to supplement a discovery response is absolute and is not predicated
on a court order.”), trans. denied.6 Our Supreme Court has indicated that the
duty to timely supplement a discovery response related to new information can
continue even up to the eve of, or during, trial. See Outback Steakhouse of Fla.,
Inc. v. Markley, 856 N.E.2d 65, 78 (Ind. 2006).
[21] Here, AMW’s timely7 discovery responses in its July 15, 2020, initial response
addressed only the alleged lack of jurisdiction while the interlocutory appeal
was pending and did not raise other objections. When the parties received the
new information that the appeal had ended, it became clear that the objections
based on jurisdiction, even if they had been correct when made (which they
were not), were moot. Therefore, AMW supplemented its discovery responses
with its additional responses, including new objections.8 See T.R. 26(E)(a), (b).
Trial Rule 26(E) allows such supplementation of discovery responses, and there
was no deadline imposed in this case, either by the court or agreement of the
6
In fact, even responses that were “complete when made” must be supplemented if they become incorrect or
relate to witnesses and persons with discoverable knowledge. See T.R. 26(E)(1), (2).
7
AMW had obtained an extension of time to respond to discovery requests, up to and including July 15,
2020.
8
The concurrence would hold that the rule regarding supplementation of discovery is not even applicable to
AMW’s June 18, 2021, supplemental answers because there was no “new information” that would allow or
require supplementation. However, as we note above, the relevant new information in this case was the final
denial of AMW’s interlocutory appeal. That new information made it clear that AMW’s initial discovery
responses based on the alleged “divestment” of jurisdiction pending the interlocutory appeal was no longer
applicable and that supplemental responses were required. Thus, we analyze the timeliness of AMW’s June
18, 2021, supplemental responses under Trial Rule 26 rather attempting to create a new balancing test for
“untimely” responses under Rules 33, 34, and 37, as the concurrence suggests.
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 12 of 20
parties, for supplementing discovery responses. See T.R. 16(A), (J) (regarding
pre-trial conferences and orders). Therefore, AMW’s supplemental responses,
filed before the hearing and the decision on Town’s motion to compel, were
“seasonable” and permissible.9 T.R. 26(E). The trial court abused its discretion
when it refused to consider AMW’s supplemental discovery responses. And
AMW was prejudiced by that error; not only was it limited to objections that
had become moot, but it was required to provide full responses to discovery
without the court’s consideration of any of its supplemental objections.
[22] Both the trial court and Town pointed to Marshall v. Woodruff, 631 N.E.2d 3, 6
(Ind. Ct. App. 1994), as support for AMW’s alleged waiver of any discovery
responses other than its original responses. However, this reliance is misplaced.
Marshall correctly held that any issue—including discovery responses—not
raised in the trial court until a motion to correct error or appeal is waived as
untimely. Id. at 8. However, that is not the situation in the case before us;
AMW raised its additional objections to the discovery requests before the July
2021 hearing and August 2021 order compelling discovery and well before the
February 2023 order finding it in contempt of the discovery order. Marshall is
inapposite.
9
AMW waited approximately three months to file its supplemental discovery responses after it obtained the
“new information” that its interlocutory appeal had failed. Some may opine that three months is not
“seasonable” per Rule 26(E), although we note that Town has not made that particular argument. However,
as the rule does not provide a time limit for what is “seasonable,” there was no discovery deadline in this
case, and the supplemental response was filed weeks before the hearing on the motion to compel, we
conclude that the supplemental responses were “seasonably” provided. T.R. 26(E).
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[23] As additional support for its claim that AMW must be held solely to its original
discovery objections, Town points to federal procedural rules and caselaw10
finding discovery objections waived when they were not “timely” asserted. See
Fed. R. Civ. P. 33(b)(4) (interrogatory rule stating that “any ground not stated
in a timely objection is waived”);11 see also, e.g., Byrd v. Reno, No. Civ.A.96 2375,
1998 WL 429676, *4 (D.D.C. Feb. 12, 1998) (“A failure to file a timely
objection to interrogatories constitutes a waiver of any objection unless good
cause is shown.”). However, this begs the question of what constitutes a
“timely” objection. None of the cases—either state or federal—cited by Town
prohibit consideration of supplemental discovery responses provided prior to a
hearing and order on a motion to compel, when there was no deadline in place
for supplementing discovery responses.12
Conclusion
[24] AWM’s supplemental discovery responses, including objections, were timely
submitted, as they were provided before the hearing on Town’s motion to
compel discovery responses and there was no deadline in this case that required
an earlier supplementation of discovery responses. The trial court erred when it
10
“Where a state trial rule is patterned after a federal rule, we will often look to the authorities on the federal
rule for aid in construing the state rule[,]” although those authorities are not binding upon us. Cleveland
Range, LLC v. Lincoln Fort Wayne Assocs., LLC, 43 N.E.3d 622, 624 n.1 (Ind. Ct. App. 2015).
11
We note that Indiana’s Rule 33 regarding interrogatories contains no such waiver language. T.R. 33(B).
12
Moreover, we note federal law provides that even untimely responses may be allowed where good cause
for the delay is shown. See id.Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 14 of 20
refused to consider the objections contained in AMW’s first supplemental
discovery responses. We reverse and remand with instructions to consider
those objections.
[25] Reversed and remanded with instructions.
May, J., concurs.
Felix, J., concurs in result with separate opinion.
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Felix, Judge, concurring in result.
[26] I concur in the result but respectfully disagree with the majority’s analysis
decision for three reasons. It appears to me that the majority reaches the
conclusion that AMW’s objections, raised in its Supplemental Response, were
not waived because they were not untimely. First, I believe AMW’s objections,
raised in its Supplemental Response, were late and untimely. However and
secondly, I believe that a late-raised objection does not necessarily result in a
waiver of that objection. Finally, I believe Marshall v. Woodruff provides the
outer boundaries for when a late objection can be deemed waived. Marshall
does not stand for the proposition that waiver of an objection only occurs when
a late-raised objection gets raised at the motion-to-correct-error stage. Here, we
need to determine when the late-raised objections can be found to be waived.
[27] To start, I believe that the timeliness and waiver of an objection to a discovery
request are separate questions requiring separate analyses. In other words, I do
not believe an untimely objection to a discovery request necessarily waives that
objection.
[28] In support of its untimeliness-equals-waiver argument, Town references the
Federal Rules of Civil Procedure. Admittedly, Federal Rule of Civil Procedure
33 contains a blanket waiver provision. See, e.g., Fed. R. Civ. P. 33(b)(4) (“Any
ground not stated in a timely objection is waived unless the court, for good
cause, excuses the failure.”) Federal case law has expanded that waiver
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provision to Federal Rule Civil Procedure 34. See Boles v. Aramark Correctional
Svcs., LLC, 2018 WL 3854143 (6th Cir. 2018). However, the Indiana Trial Rules
do not include an equivalent—or any—waiver provision in Rules 33, 34, or 36.
The argument that we should look to the federal rules for guidance on whether
an untimely discovery objection is waived is not persuasive.
[29] Because our trial rules do not specify that an untimely objection to a discovery
request is waived, and lacking any relevant guidance from the federal
counterpart to those rules, I disagree that an untimely objection to a discovery
request is necessarily waived. This determination of whether a late-submitted
objection is waived should be decided by the trial court based upon facts and
circumstances of the case as I will explain below.
[30] Secondly, I disagree with the majority’s conclusion that AMW’s objection was
timely and with its reasoning that there was no deadline for making such an
objection. The majority opinion is based on Trial Rule 26(E), which allows for
supplementing a discovery response. However, Trial Rule 26(E) prescribes the
duty to supplement a prior response in the event of “information thereafter
acquired.” T.R. 26(E). There is no indication that the objections here arise
from or are based on information acquired after AMW filed its initial objection
on July 15, 2020. As a matter of fact, it appears that AMW knew all along that
its subsequently (and late-) raised objections could be asserted, they simply
chose not to do so. As a result, I do not believe Trial Rule 26(E) applies.
Instead, I believe the timeliness of an objection to a discovery request is more
appropriately governed by the trial rules, here, Trial Rule 33, 34, and 36.
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[31] Under our trial rules, the deadline for responding to a discovery request is set in
the rule regarding the type of discovery at issue. See Ind. Trial Rule 33(B)
(“Answers or objections to interrogatories shall include the interrogatory . . . to
which an objection is being made. . . . [R]easons for objections shall be stated in
lieu of an answer.”); T.R. 33(C) (requiring responding party to serve “answers
or objections within a period designated by the party submitting the
interrogatories, not less than thirty [30] days after service”); T.R. 34(B)
(requiring written response to requests for production of documents, including
objections, within “a period designated in the request, not less than thirty [30]
days after the service thereof”); T.R. 36 (deeming admitted any request for
admission not answered or objected to “within a period designated in the
request, not less than thirty [30] days after service thereof”). The deadlines for
discovery responses, including objections, in those rules should be applied in
this case.
[32] Here, AMW served its amended objections after the 30-day deadline set in the
relevant trial rules, beyond any extension granted in a trial court order or
allowed by Town, and more than 30 days after the Indiana Supreme Court
denied transfer of the interlocutory appeal. As a result, I believe the objections
AMW asserted in its June 2021 first supplemental responses were not timely.
[33] Finally, although I would find AMW’s new objections to be untimely, I do not
believe that AMW has waived those objections or that Marshall v. Woodruff
requires a contrary conclusion. Marshall responded to a motion to compel
discovery on the ground that the requested information was “unavailable.”
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Marshall v. Woodruff, 631 N.E.2d 3, 6 (Ind. Ct. App. 1994). Ultimately, the trial
court dismissed Marshall’s complaint for “non-compliance with discovery.” Id.
at 5. Marshall then filed a motion to correct error, asserting for the first time an
objection to the discovery requested on the ground that it was privileged or
otherwise undiscoverable. Id. at 6. “Prior to her motion to correct errors,
Marshall never contended the information was privileged or otherwise
undiscoverable as it related to the issue of damages. Marshall cannot now rely
on these untimely reasons for objection.” Id. In support, the court cited T.R.
34(B) and Rodgers v. Rodgers, 503 N.E.2d 1255, 1257 (Ind. Ct. App. 1987),
which held that a party may not raise in a motion to correct error or on appeal
an issue not raised in the trial court. In sum, Marshall tells us that an untimely
objection is waived when it is asserted for the first time in a motion to correct
error or later.
[34] Here, as the majority explains, AMW’s objections were raised prior to the
hearing on the Motion to Compel; in other words, much sooner than at the
motion-to-correct-error stage. This begs the question, when does a late-raised
objection become waived. I would suggest the following factors are relevant to
that inquiry. To determine whether an untimely objection to a discovery
request is waived, I believe courts should consider factors such as these:
1. the obstreperousness of the party;
2. the complexity (or lack thereof) of the issues;
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 19 of 20
3. the amount of time that passed between a motion to compel
and the hearing on that motion;
4. the amount of time, effort, and/or expense the requesting
party put into trying to get the issue resolved (e.g., T.R. 26(F)
efforts); and
5. good cause.
[35] Applying such an analysis to this case, I believe that AMW’s supplemental
responses (the late-raised objections) were late for the reasons explained above,
but I would hold that those objections are not waived given: (1) the rare and
unusual circumstances of this case, namely, the confusion created by the
interlocutory appeal as to whether the trial court retained authority over the
matter; (2) the lack of evidence that either party was being obstreperous; (3) the
lack of any real effort by Town to resolve the issue, given that Town only sent a
single letter to AMW pursuant to T.R. 26(F); (4) the fact that Town’s Motion
to Compel was filed on August 28, 2020, and the hearing on that motion did
not occur until July 9, 2021; and (5) the fact that the amended/supplemented
objections were filed prior to the hearing on the motion to compel.
[36] For these reasons, I concur and would also reverse the trial court’s decision.
Court of Appeals of Indiana | Opinion 23A-PL-508 | January 19, 2024 Page 20 of 20