« Ind. Decisions - More on: Challenges to BMV re drivers' licenses in both state and federal court | Main | Environment - Two stories today about Kentucky coal mining »

Wednesday, August 15, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 15 NFP), including opinion on what is "reasonable particularity" under APRA

For publication opinions today (5):

JPMCC 2006-CIBC 14 Eads Parkway, LLC v. DBL Axel, LLC, David Richman, Lynette Gridley, as Trustee of the Hartunian Family Trust (u/d/t dated November 8, 1989), Black Diamond Realty, LLC, et al.

In Reko D. Levels v. State of Indiana , a 3-page opinion reversing the trial court, Judge Bailey concludes:

Here, the trial court advised Levels at his initial hearing that he had a right to a jury trial. However, the trial court failed to adequately advise Levels of the consequences of failing to demand a jury trial. The court did not mention the necessity of making such a request no later than ten days prior to the scheduled trial date, and at no time did the trial court disclose that the failure to make the request would waive Levels’ right to a jury trial. There is also no indication that Levels knew that the demand had to be in writing. Because the advisement was insufficient, there was no valid waiver of a jury trial.
In Michael K. Curts, Individually and as Personal Representative of the Estate of Dorothy J. Curts, Deceased v. Miller's Health Systems, Inc. a/k/a Miller's Merry Manor, Logansport, LLC, et al., a 12-page opinion, Chief Judge Robb writes:
Michael Curts, acting individually and as personal representative of the Estate of Dorothy J. Curts, brought suit against Miller’s Merry Manor nursing home (“Manor”), claiming wrongful death, breach of contract, and negligent infliction of emotional distress. The trial court granted summary judgment in favor of Manor. Curts appeals, raising two issues: 1) whether Theresa Weitkamp, as a nurse and nursing home administrator, can qualify as an expert witness and offer an expert opinion as to whether Manor breached its standard of care and whether such alleged breach caused Dorothy Curts’s injuries and subsequent death; and 2) whether a genuine issue of material fact exists such that summary judgment is inappropriate. Concluding nurses can potentially have sufficient expertise to qualify as experts for the purposes of medical standards of care and medical causation, but that the evidence designated does not demonstrate that Weitkamp has sufficient expertise and thus no genuine issues of material fact exist, we affirm the trial court’s grant of summary judgment for Manor.
In Mary Barrix and Joe Barrix, Jr. v. Kristopher Jackson and Graves Plumbing Co. Inc., a 13-page opinion, Judge Bailey writes:
The Barrixes contend that the trial court’s ruling improperly excluded portions of Dr. Fulton’s testimony because Dr. Fulton relied upon unauthenticated medical records in rendering his opinion and offering his deposition testimony.

We agree with the Barrixes that the use of unauthenticated medical records that would otherwise be inadmissible is not a proper bar to the admissibility of an expert’s opinion rendered from those records. We nevertheless find no reversible error in the trial court’s decision to exclude from evidence Dr. Fulton’s deposition testimony because any error the trial court committed was invited error. * * *

The Barrixes have not demonstrated reversible error as a result of the trial court’s exclusion of Dr. Fulton’s deposition testimony from evidence, and any such error was invited. The trial court did not abuse its discretion when it excluded Mary’s medical bills from evidence. The Barrixes also failed to adduce any evidence giving rise to any inference supporting allegations that Graves had a duty of care toward Mary and breached its duty. We therefore affirm the trial court’s entry of judgment on the evidence against the Barrixes.

In Michael R. Jent v. Fort Wayne Police Department, an 8-page opinion involving a pro se appellant and the Access to Public Records Act, Judge Najam writes:
In support of its cross-motion for summary judgment, the FWPD asserted that it could not fulfill any part of Jent’s records request because the request does not comply with Indiana Code Section 5-14-3-3(a)(1), which requires that the request “identify with reasonable particularity the record being requested.” The “reasonable particularity” requirement under this statute has not previously been interpreted by an Indiana court. In the context of the discovery rules, however, a requested item has been designated with “reasonable particularity” if the request enables the subpoenaed party to identify what is sought and enables the trial court to determine whether there has been sufficient compliance with the request. In re WTHR-TV, 693 N.E.2d 1, 6 (Ind. 1998). Here, in essence, the FWPD contends that Jent’s request fails the first part of that test, namely, that it does not enable the FWPD to identify the records sought.
Again, Jent requested the following records:
Daily incident report logs of crimes committed from January 1st, 2001[,] through December 8th, 2005[,] containing the crimes of abduction and sexual assault and/or attempted abduction and attempted sexual assault with the victims describing the perpetrator as a[n] Hispanic male with a tattoo of a rose and green stem on the left arm or side and/or if the victim was taken to a[n] abandoned house and/or placed in a van during the commission of the crime.
While Jent’s request describes the records sought in some detail, the level of detail does not necessarily satisfy the “reasonable particularity” requirement of the statute. In response to a request under APRA, a public agency is required to search for, locate, and retrieve records. Depending upon the storage medium, the details provided by the person making the request may or may not enable the agency to locate the records sought. Indeed, here, the FWPD was unable to fulfill the request using the search parameters Jent provided.

As Sergeant Bubb explained in response to Jent’s request, the records are maintained electronically and the “software will not facilitate the production of any kind of list with the parameters [Jent] specified.” The FWPD designated Sergeant Bubb’s letter as evidence in support of summary judgment. That designated evidence shows that the parameters given in the request are incompatible with the software that manages the electronic data. In other words, the software lacks the capacity to search and retrieve the records requested. * * *

[The Court references an PAC opinion] Further, the PAC stated that “it would not be appropriate for the [FWPD] to deny [Jent] access to the information on the basis that it is stored in a way that would not allow the [FWPD] to separate the daily log information from the discretionary investigatory record information.”

The PAC misconstrues Sergeant Bubb’s letter. The letter does not deny Jent’s request based on an alleged inability to separate the daily logs from other documents. Rather, the letter gives two other reasons for denying Jent’s request: that the FWPD was unable to search its records using the parameters given and that the records requested are excepted from disclosure as investigatory records. The PAC did not express any opinion concerning whether the FWPD’s software had the capacity to locate and retrieve the records using the parameters Jent provided. * * *

Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records. Here, the undisputed designated evidence shows that such is not the case and that the FWPD is entitled to summary judgment.

ILB: The Jent opinion on p. 3 references a PAC advisory opinion, but oddly does not cite it. The ILB has located the foraml advisory opinion, it is 09-FC-93, dated May 4, 2009.

NFP civil opinions today (6):

Douglas C. Holland v. Rising Sun/Ohio County First, Inc., Ohio County, Rising Sun, Quin Min, and Kirk and Michelle Neace (NFP)

In re the Term. of the Parent--Child Rel. of H.S. and N.S. and S.S. & D.S. v. Indiana Dept. of Child Services (NFP)

Tracy Lynn Weston, as Personal Representative of the Estate of Clinton Dale Weston, Deceased v. Scott D. Longevin, M.D., and Preferred Emergency Specialists, Inc. (NFP)

Floor Mart of Indiana, Inc., Annesse M. Covey, Cherly C. Covey, and William Covey v. Norman Fischer and Julie Fischer (NFP)

Vernon L. Mefford v. Lori Little and Jason McCord (NFP)

Term. of Parent-Child Rel. of C.S., Jr., D.S., and J.S., minor children: C.S., Sr., father v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (9):

Tondalay Brown v. State of Indiana (NFP)

Joshua Ellis v. State of Indiana (NFP)

Lloyd W. Mezick v. State of Indiana (NFP)

Derek Dwane Hardy v. State of Indiana (NFP)

D.J. v. State of Indiana (NFP)

David M. Craft v. State of Indiana (NFP)

Victor Salazar v. State of Indiana (NFP)

Larry Burns v. State of Indiana (NFP)

Danny K. Peet v. State of Indiana (NFP)

Posted by Marcia Oddi on August 15, 2012 01:26 PM
Posted to Ind. App.Ct. Decisions