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Thursday, March 10, 2016

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (5):

In Stephanie A. Schrage v. In the Matter of the Seberger Living Trust u/t/d April 27, 2009, a 20-page opinion, Judge Brown writes:

Stephanie A. Schrage (“Schrage”) appeals the trial court’s order denying her petition to compel the delivery of a complete and unredacted copy of the Audrey R. Seberger Living Trust u/t/d April 27, 2009 (the “Trust”). Schrage raises one issue which we revise and restate as whether Schrage is entitled to a complete copy of the Trust upon request to the trustee. We affirm. * * *

Schrage received a certification of trust from the Trustee as a recipient of a specific distribution. Based on that interest alone, she is entitled to nothing further from the Trustee. Accordingly, we conclude that the court did not err in denying Schrage’s petition.

In Stephanie A. Schrage v. The Audrey R. Seberger Living Trust u/t/d April 27, 2009; John R. O'Drobinak as Successor Trustee; et al. , a 22-page opinion, Judge Brown writes:
Stephanie A. Schrage (“Schrage”) appeals from orders dismissing her complaint pursuant to Ind. Trial Rule 12(B)(6) for failure to properly commence the action under Indiana Trial Rules 3 and 4 and for failure to properly docket the Audrey R. Seberger Living Trust u/t/d April 27, 2009 (the “Trust”). * * *

Section 14(a) required Schrage to commence her action to contest the validity of the Trust within ninety days of receiving the trust certification. The Appellees do not dispute that her Complaint was filed within this ninety-day timeframe. The court has the discretion to order that the Trust be docketed in this proceeding pursuant to Section 7(a). Any failure on the part of Schrage to docket the trust did not deprive the trial court of subject matter jurisdiction and is not a jurisdictional defect. To the extent that the Appellees argue that this action is similar to a will contest, we note that Indiana “caselaw has emphasized that a will contest action is separate and distinct from the probate of a will, and that it is governed by the Indiana Trial Rules regarding commencement of a civil action; it is not treated merely as a pleading within the probate action.” Blackman, slip. op. at 9 (citing Avery v. Avery, 953 N.E.2d 470, 472 (Ind. 2011)). We conclude that the court erred in dismissing Schrage’s Complaint for failure to docket the Trust.

Conclusion. For the foregoing reasons, we reverse the trial court’s orders dismissing Schrage’s Complaint for failure to state a claim, and we remand for proceedings consistent with this opinion.

In Michael E. Ritchie, M.D. v. Community Howard Regional Health, Inc., et al. , a 16-page opinion, Judge Bailey writes:
The Medical Executive Committee (“the MEC”) of Community Howard Regional Health, Inc. (“Community”) issued a precautionary suspension of medical staff privileges1 extended to Michael E. Ritchie, M.D., the President and CEO of Ritchie Cardiology, P.C. Dr. Ritchie filed suit for breach of contract, defamation, tortious interference with a business or contractual relationship, intentional infliction of emotional distress, and breach of fiduciary duty. He sought temporary, preliminary, and permanent injunctive relief. A temporary restraining order was granted but later dissolved and Dr. Richie was denied a preliminary injunction. He appeals, presenting the sole consolidated and restated issue of whether the trial court clearly abused its discretion. We affirm. * * *

Absent malice, the peer review committee is the legislature’s choice for dealing with these issues. Courts are ill-equipped to conduct an independent review of patient care absent evidence from expert witnesses on the standard of care and any countervailing evidence in opposition thereto. Because of this limitation, state trial and appellate courts cannot serve as substitutes for peer review committees and the aggrieved party cannot circumvent the administrative process.

Conclusion. Dr. Ritchie did not demonstrate his entitlement to extraordinary equitable relief. Accordingly, the trial court did not clearly abuse its discretion by denying the request for a preliminary injunction.

In Cory Lowden v. State of Indiana, a 12-page opinion, Chief Judge Vaidik writes:
The State charged Cory Lowden with aggravated battery after he punched another man, breaking the man’s jaw so severely that surgery was required to repair it. At trial, Lowden tendered a jury instruction that applied the mens rea to every element of aggravated battery, including the severity of the resulting injury. According to Lowden’s instruction, the State would have to prove that, when he punched his victim in the face, Lowden acted with knowledge that one punch would result in protracted loss or impairment of the function of a bodily member or organ. The trial court rejected Lowden’s instruction.

According to Indiana Code section 35-41-2-2(d), the level of culpability required for the commission of an offense is required with respect to “every material element of the prohibited conduct.” The prohibited conduct in the aggravated battery statute is to inflict injury on another. The severity of the injury is not an element of the prohibited conduct, but a result of it. Accordingly, the trial court properly rejected Lowden’s tendered instruction as an incorrect statement of the law. We affirm.

In Tricia A. Davis Williams v. State of Indiana , a 12-page opinion, Sr. Judge Darden writes:
Tricia A. Davis Williams appeals from the trial court’s sentencing order after pleading guilty to one count of Class D felony theft, and the State cross-appeals contending that Williams’ appeal should be dismissed. We affirm.
NFP civil decisions today (0):

NFP criminal decisions today (9):

A.W. v. State of Indiana (mem. dec.)

Gilberto Jimenez v. State of Indiana (mem. dec.)

Jeffrey W. Smith v. State of Indiana (mem. dec.)

Adrian Forrest v. State of Indiana (mem. dec.)

Quashawn Gentry v. State of Indiana (mem. dec.)

Scott Klemme v. State of Indiana (mem. dec.)

Jacob Aaron Phillips v. State of Indiana (mem. dec.)

Dennis P. Gallivan v. State of Indiana (mem. dec.)

Thad Dale Stewart, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 10, 2016 11:40 AM
Posted to Ind. App.Ct. Decisions