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Thursday, July 23, 2009

Ind. Decisions - Court of Appeals issues 6 today (and 14 NFP)

For publication opinions today (6):

Suzanne Eads and James Atterholt v. Community Hospital is a 20-page, 2-1 opinion, with a lengthy dissent beginning on p. 9. CJ Baker writes for the majority:

Appellant-respondent Suzanne Eads appeals the trial court's grant of summary judgment in favor of appellee-petitioner Community Hospital (the Hospital). Eads argues that the trial court erred by concluding that (1) the Journey's Account Statute did not apply to her case and (2) her medical malpractice claim was untimely filed. Finding no error, we affirm.

On August 15, 2004, Eads was a patient at the Hospital, having received treatment for an ankle injury. As part of that treatment, Eads's ankle was placed in a cast. Following her treatment, she requested a wheelchair to exit the Hospital, but Hospital personnel refused her request. Instead, a Hospital employee told her that “she could leave the [H]ospital on crutches.” As Eads was exiting the Hospital, she passed through the foyer area leading to the garage, where she fell. * * *

It is undisputed that Eads filed her malpractice claim with the IDOI after the applicable two-year statute of limitations had run. To rescue her claim, Eads directs our attention to the Journey's Account Statute. * * * I.C. § 34-11-8-1. The purpose of the Journey's Account Statute is to preserve the right of a diligent suitor to pursue a judgment on the merits. * * *

[I]f Eads's malpractice claim is to be rescued by the Journey's Account Statute, she must establish, among other things, that her malpractice claim is a continuation of the Negligence Complaint. * * *

Although it is true that the factual predicate of and parties involved in Eads's medical malpractice claim are identical to those involved in the Negligence Complaint, the actual claim—the source of the alleged liability—is wholly different. There is a basic distinction between a common law claim of negligence and the statutory medical malpractice regime. Thus, whatever the similarities may be, there is a fundamental difference that prevents the application of the Journey's Account Statute. To hold otherwise would permit plaintiffs an untimely second bite at the apple, and we do not believe that to be the intent of the legislature in crafting the statute.

Inasmuch as we have found that the medical malpractice claim is not a continuation of the Negligence Complaint, the Journey's Account Statute does not apply. Therefore, we are left with a medical malpractice claim that was untimely filed with the IDOI outside the statute of limitations, and we find that the trial court properly granted summary judgment in the Hospital's favor. The judgment of the trial court is affirmed.

NAJAM, J., concurs.
KIRSCH, J., dissents with opinion. [which concludes] I believe that Eads's proposed complaint is a continuation of her Superior Court claim.

I would reverse the Circuit Court's grant of summary judgment and remand this claim to the Circuit Court with instructions that the claim be returned to the IDOI for further proceedings by the medical review panel.

In The City of Hammond v. Graoch Associates #52, L.P., d/b/a River Park Apartments , Judge May writes:
In 2005, the City of Hammond condemned an apartment complex owned by Graoch Associates #52 L.P. The City and Graoch agreed to prorate Graoch's 2005 property taxes based on the 2004 bill. The City received a credit and agreed to pay Graoch's tax bill when it came due. After the condemnation was complete and the compensation was paid, we decided Southtown Properties, Inc. v. City of Fort Wayne, 840 N.E.2d 393 (Ind. Ct. App. 2006), trans. denied 855 N.E.2d 1010 (Ind. 2006). Graoch believed that, pursuant to Southtown, it owed no property taxes for 2005, and therefore sought to recoup the money credited to the City. Graoch obtained a declaratory judgment against the Lake County Assessor, Treasurer, and Auditor (collectively, “Lake County”) that Graoch did not owe 2005 property taxes. The trial court also ordered judgment against the City, finding the money credited for payment of taxes had to be returned under theories of mistake, unjust enrichment, failure of consideration, and money had and received.

We conclude the trial court erred by applying Southtown to this case. Because Southtown does not apply, Graoch does owe property taxes for 2005. We reverse the judgment of the trial court and remand for a hearing on attorney fees and costs. * * *

For the foregoing reasons, we conclude Southtown does not relieve property owners of liability for property tax if condemnation of the property was complete before Southtown was decided. Therefore, we reverse the trial court's judgment in full. In addition, it appears the parties' settlement agreement, the agreed order in the condemnation case, and/or the Proration Agreement authorize an award of attorney fees and costs for the prevailing party in a legal action to interpret or enforce those agreements. We remand for a hearing on the issue of attorney fees and costs.

In Gregory J. Mills v. Dean Kimbley , an 18-page opinion, Judge Bradford writes:
Appellant/Plaintiff/Counterclaim Defendant Gregory Mills appeals the trial court's award of summary judgment against him in his action against Appellee/Defendant/Counterclaimant Dean Kimbley for nuisance, common law and criminal trespass, and intentional infliction of emotional distress (“IIED”). In addition, Mills appeals the trial court's award of summary judgment in favor of Kimbley in his counterclaim against Mills for invasion of privacy. Upon appeal, Mills argues that there is a genuine issue of material fact with respect to each of the above claims, precluding summary judgment. * * *

Having concluded that the trial court erred in entering summary judgment with respect to Mills's trespass claims and Kimbley's intrusion counterclaim, and that Mills's challenges to the trial court's summary judgment on his nuisance and IIED claims are waived, we affirm in part, reverse in part, and remand to the trial court for a trial on Mills's trespass claims and Kimbley's intrusion counterclaim.

John Edrington v. State of Indiana - "John Edrington appeals the sentence imposed after his plea of guilty to two counts of child molesting as Class A felonies. He argues the trial court considered invalid or unsupported aggravators when it enhanced his sentence five years beyond the presumptive thirty years and his sentence is inappropriate based on his character and the nature of his offense. We affirm."

Christopher Jenkins v. State of Indiana - "Appellant/Defendant Christopher Jenkins appeals from his convictions for Class C felony Cocaine Possession and Class D felony Methamphetamine Possession, the trial court's restitution order, and the sentence he received. We affirm in part and reverse in part."

In Luis E. Duran v. State of Indiana , a 23-page, 2-1 opinion, Judge Robb writes:

Luis Duran brings this interlocutory appeal following the trial court‟s denial of his motion to suppress evidence seized during a search of his apartment. On appeal, Duran raises one issue, which we restate as whether the trial court properly concluded that the police officers‟ entry into Duran‟s apartment did not violate the Fourth Amendment of the United States Constitution or Article I, Section 11, of the Indiana Constitution. Concluding the trial court‟s decision was not improper, we affirm. * * *

BAILEY, J., concurs.
DARDEN, J., dissents with separate opinion. [which begins and concludes] I respectfully dissent. As a starting point, I think it critical to remember that this began as a very late-night effort to serve a routine arrest warrant for Nelson Hernandez, who was sought on a charge of auto theft (not a crime of violence or a drug offense), and that it is undisputed that there was no “hot pursuit” or emergency here. Further, it appears from the record that Hernandez was relatively well known in the community to the police. The officers knew that in the course of his alleged crime, Hernandez had suffered a leg injury in a crash and was only recently released from the hospital -- wearing a full cast and mobile only with the use of two crutches. The record contains no evidence of attempts by the officers to learn the name of Hernandez' aunt, to help narrow the location of her residence. Moreover, they knew that no matter where they located Hernandez, it was going to be in the residence of a third party in that building. * * *

I appreciate the majority's careful attention to precedent in reaching the result it has. However, I am deeply troubled by testimony indicating that police officers believe that when the resident of a dwelling does not open a door, after having simply heard the announcement that “police” are outside, the officers may kick in that door to gain entry. My reading of the facts presented to the trial court in this case lead me to strongly believe that Duran's motion to suppress should have been granted.
[emphasis in the original]

NFP civil opinions today (5):

In the Matter of M.S.N. and J.J.N.; L.R. v. L.D. and D.D. and J.N. (NFP)

James Niezer v. Todd Realty Inc. (NFP) - Dispute involving real estate listing agrrement.

Deborah Hunter v. Southwest Allen County Schools (NFP) - Worker's comp.

H.C. and B.C. v. Indiana Dept. of Child Svcs. (NFP)

Roger Kinzie v. Brenda Montel (NFP) - "We acknowledge that Roger is shouldering the lion’s share of the financial burden of caring for their children. This situation is a difficult one for all involved. Brenda is simply unable to earn a sufficient income to support the children financially. Unless and until that fact changes, everyone will have to manage as best as they can. Under these circumstances, we do not find that the trial court’s decision to decline to set aside a portion of the equalizing payment for child support was clearly erroneous."

NFP criminal opinions today (9):

Javier Vera v. State of Indiana (NFP)

James W. Gary v. State of Indiana (NFP)

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

James E. Groover II v. State of Indiana (NFP)

Francisco J. Ramon Jr. v. State of Indiana (NFP)

Curtis Brandon v. State of Indiana (NFP)

Edwin Berberena v. State of Indiana (NFP)

Ross Waterman v. State of Indiana (NFP)

Mark LaMonte v. State of Indiana (NFP)

Posted by Marcia Oddi on July 23, 2009 10:58 AM
Posted to Ind. App.Ct. Decisions