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Wednesday, November 20, 2013

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

In Clifford and Judith Ann Garrett v. Paul and Linda Spear, an 18-page opinion, Judge Brown writes:

Clifford and Judith Ann Garrett (collectively, the “Garretts”) appeal from the trial court’s grant of summary judgment in favor of Paul and Linda Spear (collectively, the “Spears”). The Garretts raise two issues which we consolidate and restate as whether the court erred in granting summary judgment in favor of the Spears and denying their own summary judgment motion. We affirm. * * *

As the Indiana Supreme Court held in Adams, “where owners of adjoining premises establish by agreement a boundary . . . and improve the same in accordance with such division, each party, in the absence of fraud, will thereafter be estopped from asserting that the line so agreed upon and established is not the true boundary line . . . .” 167 Ind. at 169-170, 78 N.E. at 652 (emphasis added). We find, based upon the designated evidence, that this is precisely what took place. Accordingly, we conclude that the court did not err in granting summary judgment to the Spears based upon the doctrine of title by acquiescence.

In The City of Fort Wayne v. Consolidated Electrical Distributors, Inc d/b/a All-Phase Electric Supply Co., a 10-page opinion, Judge Vaidik writes:
This case arises from a light-installation project on Courthouse Green, a park owned by the city of Fort Wayne (“the City”). Consolidated Electrical Distributors, Inc., otherwise known as All-Phase Electrical Supply Co. (“All-Phase”), was a subcontractor on the project and supplied thousands of dollars’ worth of materials. Though the City paid the general contractor, the general contractor never paid All-Phase.

All-Phase served notice of its unpaid subcontractor’s claim on the mayor of Fort Wayne and filed suit against the City, seeking payment. Both parties moved for summary judgment. At issue was All-Phase’s compliance with the notice requirements of Indiana Code section 36-1-12-12, which provides a right of recovery to an unpaid subcontractor. The City argued that All-Phase was not entitled to payment because notice was not given within sixty days of the date All-Phase last provided materials and served improperly on the mayor, rather than the parks department. The trial court disagreed and granted summary judgment for All-Phase.

When read in conjunction with relevant statutory provisions, we conclude that Section 36-1-12-12 allowed All-Phase to serve notice of its unpaid subcontractor’s claim on the mayor of Fort Wayne. We also find that All-Phase provided timely notice of its claim. Finding that summary judgment was properly granted for All-Phase, we affirm.

In Thomas Haggerty and Cathy Haggerty v. Anonymous Party 1, Anonymous Party 2, and Anonymous Party 3, a 20-page, 2-1 opinion, Judge Vaidik writes:
In the winter of 2008, pawn-shop owner Thomas Haggerty was hospitalized for complications related to his alcoholism. Immediately after his release from the hospital, he traveled to a treatment facility in Indianapolis, but he became agitated when professionals there recommended in-patient treatment. He refused treatment and informed staff and security officers that he would walk back to his home in Bloomington, despite the fact that it was nighttime and the temperature was well below freezing. Security officers took him to a nearby medical facility, where he was detained and evaluated. He was treated and released four days later.

Thomas and his wife Cathy (collectively, “the Haggertys”) later filed a proposed medical-malpractice complaint against three parties (“the anonymous parties”) involved in Thomas’s detention. The Haggertys also filed an action against the same parties in Monroe Circuit Court. The anonymous parties filed motions for summary judgment, arguing that they were immune from liability under Indiana law. The trial court granted summary judgment for the first anonymous party, AP1, but denied the joint summary-judgment motion of the remaining parties, AP2 and AP3. The Haggertys appealed the grant of summary judgment. AP2 and AP3 filed a belated motion to certify the trial court’s order for interlocutory appeal. The trial court granted the belated motion, and this Court accepted jurisdiction over the combined appeal.

The parties make a number of arguments on appeal. The main arguments, however, pertain to jurisdiction and immunity. The Haggertys argue that the trial court did not have jurisdiction to rule on the issue of immunity because that issue was reserved for the medical review panel. They also argue that none of the anonymous parties are entitled to immunity under Indiana law because they violated Thomas’s personal or civil rights.

We conclude that the trial court had jurisdiction to rule on the issue of immunity because it is an affirmative defense. We also conclude that the Haggertys’ suit against the anonymous parties is barred by statutory immunity. We affirm the trial court’s grant of summary judgment, on immunity grounds, to AP1. We conclude that there is no genuine issue of material fact as to whether immunity also applies to AP2 and AP3; thus, we reverse the trial court’s denial of their motion for summary judgment. We affirm in part and reverse in part. * * *

Thomas Haggerty, a pawn-shop owner living in Bloomington, Indiana, has a long history of alcohol abuse. By age fifty-eight, Thomas consumed twelve beers and a liter of vodka daily. * * *

The Haggertys filed a proposed complaint for medical malpractice in 2010. AP1, AP2, and AP3—a corporate entity related to AP2—were named as defendants in the proposed complaint.[2] The Haggertys also filed an action against the same parties in Monroe Circuit Court. AP1 filed a motion for preliminary determination of law for summary judgment. AP2 and AP3 likewise filed a joint motion for preliminary determination for summary judgment. All three anonymous parties argued that they were immune from liability under Indiana Code section 12-26-2-6, which grants immunity to those who assist or participate in proceedings for an individual’s detention or commitment. * * *

Because the anonymous parties met their burden of establishing that there are no genuine issues of material fact as to their immunity in this case, we affirm the trial court’s grant of summary judgment to AP1. We reverse the denial of AP2 and AP3’s summary-judgment motion and we remand with instructions for the trial court to enter summary judgment for AP2 and AP3. Affirmed in part and reversed in part.

FRIEDLANDER, J., concurs.
BAKER, J., concurs in part and dissents in part with separate opinion. [which begins at p. 19, and concludes] Here, the facts as alleged by the Haggertys place Thomas in a small bathroom for approximately four hours before being admitted to AP2. The majority concedes that “the parties do not explain the circumstances surrounding Thomas’s placement in a bathroom,
other than noting that he left at one point to talk to Cathy.” In my view, this creates a genuine issue of material fact sufficient to preclude summary judgment and, consequently, immunity as to AP2 and AP3. Indeed, this incident is precisely the type of issue that the medical review panel should assess to determine whether the actions of AP2 were appropriate. Accordingly, I would have affirmed the trial court’s denial of summary judgment.
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[2] A health-care provider must be identified in a summons to effect service, but must remain anonymous during the pendency of the medical review panel proceedings in a complaint filed in state court. See Ind. Code § 34-18-8-7; Hubbard v. Columbia Women’s Hosp. of Indianapolis, 807 N.E.2d 45, 60, n.2 (Ind. Ct. App. 2004), reh’g denied.

In In Re The Paternity of B.B., R.B. v. T.J., a 23-page opinion, Judge Brown writes:
R.B. (“Father”) appeals the trial court’s order modifying custody, visitation, and support of B.B. to T.J. (“Mother”). Father raises two issues, which we revise and restate as: I. Whether the court abused its discretion by admitting evidence of text messages purportedly exchanged between Father and Mother; and II. Whether the court abused its discretion by granting Mother’s petition to modify physical and legal custody of B.B. We affirm. * * *

We find that evidence was presented sufficient to support a finding that the Text Messages were what Mother claimed them to be, and that a sufficient foundation was laid for their admission, and accordingly, we conclude that the court did not abuse its discretion when it admitted the Text Messages. * * *

The court ruled that Mother was in the best position to act as B.B.’s primary caretaker and awarded her physical custody. After review, we cannot say that the court’s findings or conclusions were clearly erroneous, and we conclude that the court did not abuse its discretion in granting Mother’s petition to modify custody.

Conclusion. For the foregoing reasons, we affirm the trial court’s order modifying custody, visitation and support of B.B. to Mother.

In Tony Sluder v. State of Indiana, a 7-page opinion, Judge Vaidik writes:
Columbus Police Department Officer Troy Love stopped Tony Sluder after discovering Sluder had an outstanding arrest warrant. Officer Love searched Sluder but did not find anything. When Officer Angela Owens arrived to transport Sluder to the Bartholomew County Jail, she again searched Sluder, finding a syringe in the back pocket of his jeans. Sluder had a bench trial and was convicted of Class A misdemeanor possession of paraphernalia. Sluder appeals his conviction, arguing that the evidence was insufficient to establish that he intended to use the syringe to introduce a controlled substance into his body. Finding that no evidence of intent existed, we reverse.
NFP civil opinions today (2):

John S. Paniaguas, Kathy R. Paniaguas, Woodrow Cornett, III, and Kristine E. Cornett v. Endor, Inc. et al (NFP)

In The Matter of The Estate of Charles W. Merlau, Deceased, Patricia Trout v. C. Thomas Cone, et al (NFP)

NFP criminal opinions today (6):

Dino D. Hickmon, Sr v. State of Indiana (NFP)

Howard Moffitt v. State of Indiana (NFP)

Carlowe Wilson v. State of Indiana (NFP)

Tawon L. Wright v. State of Indiana (NFP)

George Cunitz v. State of Indiana (NFP)

Eric Rasnick v. State of Indiana (NFP)

Posted by Marcia Oddi on November 20, 2013 11:42 AM
Posted to Ind. App.Ct. Decisions