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Wednesday, June 08, 2011

Ind. Decisions - Court of Appeals issues 6 today (and 8 NFP)

For publication opinions today (6):

In Donna Gibson v. G. David Bojrab, M.D., et al. , a 9-page opinion, "Gibson argues that the trial court should have admitted evidence of the Courtright matter as direct evidence of Dr. Bojrab’s negligence and as impeachment evidence." Judge Barnes writes:

Donna Gibson appeals the judgment in favor of Dr. G. David Bojrab and Pain Management Associates, P.C., on Gibson’s medical malpractice claim. We affirm.

Issue. Gibson raises one issue, which we restate as whether the trial court properly excluded evidence of a decision by a Medical Review Panel in an unrelated case against Dr. Bojrab.

In Cynthia Perdue v. Greater Lafayette Health Services, et al. , an 11-page opinion, Judge Najam writes:
Cynthia Perdue appeals the trial court's entry of summary judgment in favor of Greater Lafayette Health Services, Inc., d/b/a Home Hospital (“Home Hospital”), on her complaint alleging negligence and seeking damages for bodily injuries. Perdue presents a single issue for our review, namely, whether the trial court erred when it concluded that her complaint is barred by a statute of repose. We reverse and remand for further proceedings.* * *

This case presents an issue of first impression for our courts, and we may look to other jurisdictions for support. In addressing a case on all fours with the instant case, the Court of Civil Appeals of Oklahoma has held that a statute of repose for design defects does not apply to a complaint alleging failure to warn an invitee of a hidden danger. * * *

We hold that “failure to use reasonable care to maintain an improvement” includes a breach of the duty described in the Restatement (Second) of Torts § 343, namely, the duty to exercise reasonable care to protect invitees against dangerous conditions of the premises. * * *

Again, nothing in Perdue's complaint suggests that she is relying on a deficiency in the design or construction of the parking garage to support her claim, but she is alleging breach of the duty to protect invitees from a dangerous condition of the premises. Accordingly, her complaint is not barred by the statute of repose.4 The trial court erred when it interpreted Indiana Code Section 32-30-1-5 to bar claims such as Perdue's. Home Hospital has not shown, as a matter of law, that there exist no genuine issues of material fact, and Home Hospital is not entitled to summary judgment.

Guideone Insurance Co., as Subrogee of Andrew Alexander and Michael Schafstall v. U.S. Water Systems, Inc., and Lowe's Home Centers, Inc.

In Michael K. Arthur v. State of Indiana , a 9-page opinion, Judge Darden concludes:

The trial court erred in ordering that Arthur was not eligible for credit time while serving his sentence on a commitment to home detention. We do not find, however, that the trial court erred in its order modifying Arthur's commitment. Reversed and affirmed.
In Evelyn Garrard, by and through her Attorney-in-fact, Ronald D. Garrard v. Debra L. Teibel and Douglas Grimmer, and Debra Lindsay, a 5-page opinion in a pro se appeal, Judge Bradford concludes:
Garrard’s challenge to the trial court’s summary judgment is waived for failure to comply with the Indiana Appellate Rules. Garrard’s statement of facts does not explain any of the facts and proceedings in this case after 2007. The summary judgment proceedings at issue occurred in 2009. * * *

While this is a challenge to summary judgment, and Garrard claims that certain evidence creates a genuine issue of material fact, Garrard fails to demonstrate what facts, if any, he designated to the trial court. * * * Accordingly, we are unable to discern Garrard’s basis for appeal.

In Charles Price v. Delmar Kuchaes, a 29-page opinion, Chief Judge Robb writes:
Following the failure of Charles Price's loss of consortium claims, wherein he sought recovery for a vaccine injury to his wife, Price brought this legal malpractice action against Delmar Kuchaes, the attorney who represented him in that litigation. The trial court initially granted partial summary judgment to Price on the issue of liability but denied Price summary judgment on the issue of damages. The following year the trial court reversed course, granting full dispositive summary judgment to Kuchaes based on a theory of judicial estoppel for Price's failure to disclose the malpractice action in his Chapter 13 bankruptcy filing. Price now appeals, and Kuchaes cross-appeals. The parties raise six issues on appeal, of which we find the following three restated issues dispositive: 1) whether Price has standing to maintain this legal malpractice action when it was not initially disclosed in his bankruptcy filing but was later disclosed and the bankruptcy dismissed; 2) whether the trial court properly granted summary judgment to Kuchaes based on judicial estoppel; and 3) whether the trial court correctly decided the merits of Price's legal malpractice claim in its previous grant of partial summary judgment to Price as to Kuchaes's liability.

We conclude Price has standing to pursue this legal malpractice action and that the trial court erred when it granted Kuchaes summary judgment based on judicial estoppel. We further conclude issues of material fact remain such that Price is not entitled to summary judgment as to Kuchaes's liability for malpractice, though the trial court correctly denied Price summary judgment as to damages. We reverse in part, affirm in part, and remand for further proceedings.

NFP civil opinions today (3):

Terri L. Mozingo v. Timothy Pursifull (NFP)

Tana Dulin v. Sun Mortgage Co., LLC a/k/a Sun Mortgage, LLC, and Wendy Creed (NFP)

Troy L. McMurtry v. Sabrina L. McMurtry (NFP)

NFP criminal opinions today (5):

Chad Byrd v. State of Indiana (NFP)

Anthony Welkie v. State of Indiana (NFP)

Brandon Gifford v. State of Indiana (NFP)

Thomas A. Smith v. State of Indiana (NFP)

Jeffrey Randolph v. State of Indiana (NFP)

Posted by Marcia Oddi on June 8, 2011 10:14 AM
Posted to Ind. App.Ct. Decisions