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Friday, November 07, 2014

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

In Anonymous Physician and Anonymous Medical Group v. Richard Loucks Rogers, a 17-page, 2-1 opinion, Judge Robb writes:

Richard Rogers, pro se, filed with the Indiana Department of Insurance a proposed complaint for medical malpractice on March 4, 2011 against Anonymous Physician and Anonymous Medical Group (collectively, “Physican”). Physician filed in the trial court a Motion for Preliminary Determination and for Summary Judgment, alleging Rogers’s complaint was not timely filed under the Indiana Medical Malpractice Act. The trial court initially granted summary judgment to Physician but later granted Rogers’s motion to correct error and denied summary judgment. The parties present several issues on appeal, which we consolidate as the following single issue: whether the trial court erred in denying summary judgment upon finding that genuine issues of material fact exist as to whether Rogers timely filed his proposed complaint. Concluding that Rogers’s claim was not timely filed under the Indiana Medical Malpractice Act and summary judgment for Physician was appropriate, we reverse. * * *

Concluding that Physician’s last act of negligence occurred January 7, 2009 and that the doctrine of continuing wrong does not apply, Rogers’s claim is barred by the Medical Malpractice Act’s occurrence-based statute of limitations. Accordingly, summary judgment is appropriate for Physician, and the trial court abused its discretion in finding otherwise and granting Rogers’s motion to correct error. We reverse.

BAKER, J., concurs.
KIRSCH, J., dissents with opinion. [which begins, at p. 16] The doctrine of continuing wrong applies where an entire course of conduct combines to produce an injury. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 699 (Ind. 2000). When the doctrine attaches, the statutory limitations period begins to run at the end of the continuing wrongful act. Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind. 1991). In order to apply the doctrine, the plaintiff must demonstrate that the alleged injury-producing conduct was of a continuous nature. Burton v. Elskens, 730 N.E.2d 1281, 1284 (Ind. Ct. App. 2000). “The doctrine of continuing wrong is not an equitable doctrine; rather, it defines when an act, omission, or neglect took place.” Coffer v. Arndt, 732 N.E.2d 815, 821 (Ind. Ct. App. 2000), trans. denied.

In The City of Indianapolis, Indiana, and the Indianapolis Department of Public Works v. Evelyn Cox, a 20-page opinion, Sr. Judge Shepard writes:
Owen Cox and Evelyn Cox initiated a class action against the City of Indianapolis, claiming that the City acted illegally in the course of changing its method for financing sanitary sewer improvement projects. The trial court entered summary judgment for the plaintiffs and awarded damages and prejudgment interest.

In the course of oral argument before this panel, counsel for Evelyn Cox acknowledged that it would be consistent with the statutes and constitutional provisions under which they bring this case for the City to make various kinds of forgiveness, either to individual property owners or to groups of them, as the circumstances might warrant. We think counsel’s acknowledgement was appropriate, and that it reflects why Cox’s claims must fail. We reverse and remand. * * *

On the multiple grounds explained above, we conclude that Cox’s claims are barred. She is not entitled to summary judgment on her statutory and Indiana constitutional claims. We reverse the trial court’s grant of summary judgment to Cox and remand with instructions to grant the City’s Cross-Motion for Summary Judgment.

ILB: Notable in Cox are three references by former CJ Shepard to statements made by counsel to Cox in the COA oral argument: first in the summary at the beginning of the opinion; second, on p. 13 "Morse is only modestly helpful here because Cox says she does not challenge the constitutionality of the City’s ordinance[5]; and third, on p. 15. "Indeed, as noted above, counsel for Cox acknowledged during oral argument that a municipality could do so, arguing instead that it had forgiven more than it should have.[6]"
_________
[5] 5 Oral argument at 22:23.
[6] Asked whether such judgments are to be made by courts or by the City, counsel appropriately replied: “The City.” Oral argument at 28:52.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Jack L. Anderson v. State of Indiana (NFP)

Posted by Marcia Oddi on November 7, 2014 10:00 AM
Posted to Ind. App.Ct. Decisions