BURNS v. HATCHETT
Debra O. BURNS and Roger Burns, Appellants-Plaintiffs, v. Robert K. HATCHETT, D.M.D., Appellee-Defendant.
No. 82A05-0212-CV-576.
-- April 24, 2003
Glenn A. Deig, Evansvi...lle, IN, Rex E. Baker, Baker & Gilchrist, Avon, IN, Attorneys for Appellants.Danny E. Glass, Fine & Hatfield, Evansville, IN, Attorney for Appellee.
OPINION
STATEMENT OF THE CASE
Debra and Roger Burns (collectively “the Burnsesâ€) appeal the trial court's grant of summary judgment in favor of Robert K. Hatchett, D.M.D. on their medical malpractice claim.   The Burnses present four issues for our review, which we consolidate and restate as:
1.  Whether the trial court erred when it found that the Burnses' claim was barred by the statute of limitations.
2.   Whether the trial court erred when it rejected the Burnses' claim that the doctrine of fraudulent concealment precludes summary judgment in favor of Dr. Hatchett.
We affirm.
Medical malpractice
Shah v. Harris, No. 82A01-0103-CV-111.
Nov 16, 2001
OUTCOME: Motion was denied
SHAH v. HARRIS
Kirit C. SHAH, M.D., Appellant-Defendant, v. Stan HARRIS and Nancy Harris, Appellees-Plaintiffs.
No. 82A01-0103-CV-111.
-- November 16, 2001
Rebecca T. Kasha,Kinney, Kasha ...& Buthod, LLP, Evansville, Indiana, Attorney for Appellant.Glenn A. Deig, Evansville, Indiana, Attorney for Appellee.
OPINION
Dr. Kirit C. Shah (“Dr. Shahâ€) appeals the trial court's order denying his motion for summary judgment.   Dr. Shah raises the following issue:  whether the trial court erred when it found a genuine issue of material fact regarding whether Stan and Nancy Harris (“Harrisesâ€) filed their complaint within the applicable two-year statute of limitations.   We agree that there remain no genuine issues of material facts regarding the statute of limitations.   However, we believe that the Harrises timely filed their complaint and accordingly, we affirm the trial court's denial of Dr. Shah's summary judgment motion and remand to the trial court for entry of summary judgment in favor of the Harrises on this issue.   We hand this case down with a companion case, Rogers v. Mendel, 758 N.E.2d 946 (Ind.Ct.App.2001), which raises essentially the same issues but with a different result, reached by a different panel of this court.
Conclusion
Because the Harrises filed their medical malpractice action within the appropriate limitations period, we affirm the trial court's order denying Dr. Shah's motion for summary judgment and remand for entry of summary judgment in favor of the Harrises on the issue of the applicable statutory limitations period.
Affirmed and remanded.
Medical malpractice
ROGERS v. MENDEL, No. 82A04-0103-CV-84.
Nov 16, 2001
OUTCOME: Reversed and remanded
ROGERS v. MENDEL
L. Ralph ROGERS, M.D., Appellant, v. Ann MENDEL, as Personal Representative of the Estate of Maryetta Mendel, Deceased, and Linus Mendel, Appellees.
No. 82A04-0103-CV-84.
--... November 16, 2001
Danny E. Glass,Fine & Hatfield, Evansville, IN, Attorney for Appellant.Glenn A. Deig, H. Wayne Turpin, Evansville, IN, Attorneys for Appellees.
OPINION
Dr. L. Ralph Rogers (“Dr. Rogersâ€) appeals the trial court's order denying his motion for summary judgment.   Dr. Rogers raises the following issue:  whether the trial court erred when it found a genuine issue of material fact regarding whether Ann Mendel and Linus Mendel (“Mendelsâ€) filed their complaint within the applicable two-year statute of limitations.   We agree with Dr. Rogers and accordingly, we reverse the trial court's denial of Dr. Rogers' summary judgment motion and remand with instructions to enter summary judgment in favor of Dr. Rogers.1  We hand this case down with a companion case, Shah v. Harris, 758 N.E.2d 953 (2001), which raises essentially the same issues but with a different result, reached by a different panel of this court.
Conclusion
Because there are no genuine issues of material fact with regard to the timing of the filing of the Mendels' complaint, we reverse the trial court and remand with instructions to enter summary judgment in favor of Dr. Rogers.
Reversed and remanded.
Personal injury
Bolin v. Wingert No. 87S01-0203-CV-177.
Mar 11, 2001
OUTCOME: Appeal was denied.
BOLIN v. WINGERT
Rebecca BOLIN and Calvin Bolin, Appellants (Plaintiffs Below), v. Brandon A. WINGERT, Appellee (Defendant Below).
No. 87S01-0203-CV-177.
-- March 11, 2002
Glenn A. Deig, ...Evansville, for Appellants.Patricia K. Woodring, Shawn M. Sullivan, Terrell, Baugh, Salmon & Born LLP, Evansville, for Appellee.
Facts and Procedural History
While driving on April 13, 1996, Rebecca Bolin stopped her car in the roadway, waiting for the car in front of her to turn.   Brandon Wingert struck Bolin's vehicle from behind, and Bolin suffered several injuries, including a miscarriage.   Bolin was eight to ten weeks pregnant at the time.
On February 5, 1998, Bolin and her husband Calvin filed suit.   Count III of their complaint alleged that Wingert caused Bolin's miscarriage and requested compensation for the wrongful death of their unborn child.   In response, Wingert moved for partial summary judgment, alleging that the Child Wrongful Death Statute 1 did not provide for such a recovery.   The trial court granted Wingert's motion.
The Bolins appealed, and the Court of Appeals held that “child†was not expressly defined by the legislature.  Bolin v. Wingert, 742 N.E.2d 36, 37 (Ind.Ct.App.2001).   Relying on a 1972 decision, the court held that only “an unborn viable child†had a claim under the Wrongful Death Statute.  Id. at 38 (emphasis in original) (citing Britt v. Sears, 150 Ind.App. 487, 498, 277 N.E.2d 20, 27 (1972)).   Because the Bolins had not produced any evidence that the unborn child was “capable of independent life,†the Court of Appeals affirmed the trial court's grant of partial summary judgment.  Id.
In a case of first impression under Indiana's Child Wrongful Death Statute, we address the question whether an eight- to ten-week-old fetus fits the definition of “child.†  We conclude that it does not.
Personal injury
BOLIN v. WINGERT No. 87A01-0006-CV-183.
Jan 11, 2001
OUTCOME: Appeal was denied
BOLIN v. WINGERT
Rebecca BOLIN and Calvin Bolin, Appellants-Plaintiffs, v. Brandon A. WINGERT, Appellee-Defendant.
No. 87A01-0006-CV-183.
-- January 11, 2001
Glenn A. Deig, Evansville, IN..., Attorney for Appellants.Patricia K. Woodring, Shawn M. Sullivan Terrell, Baugh, Salmon & Born, LLP Evansville, IN, Attorneys for Appellee.
OPINION
STATEMENT OF THE CASE
Appellants-Plaintiffs, Rebecca Bolin and Calvin Bolin (hereinafter collectively referred to as “the Bolinsâ€), appeal the trial court's grant of Appellee Defendant's, Brandon Wingert (Wingert), motion for partial summary judgment.
We affirm.
ISSUES
The Bolins raise two issues on appeal, which we consolidate as one issue and restate as follows:  whether the trial court erred in granting Wingert's motion for partial summary judgment.
FACTS AND PROCEDURAL HISTORY
On April 13, 1996, Rebecca Bolin (Rebecca) and Wingert were involved in a car accident in Warrick County, Indiana.   Rebecca sustained various personal injuries from the collision.   At the time of the accident, Rebecca was approximately 8-10 weeks pregnant.   It is alleged by the Bolins and conceded by Wingert that the accident caused the miscarriage of Rebecca's pregnancy.
On February 5, 1998, the Bolins filed their complaint, with a jury demand, in Warrick Circuit Court for personal injuries arising from the accident that occurred on April 13, 1996.   Count I of the complaint requested compensation for damages sustained by Rebecca;  Count II requested compensation for Calvin Bolin's loss of consortium;  and Count III requested compensation for the wrongful death of their unborn child.
On December 8, 1999, Wingert filed a motion for partial summary judgment as to Count III of the Bolins' complaint.   On May 5, 2000, the trial court, after hearing oral argument, and after considering the evidentiary materials and legal authorities submitted to it, granted Wingert's motion for partial summary judgment as to Count III of the Bolins' complaint.   The Bolins now appeal.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not err in granting Wingert's motion for partial summary judgment.
Affirmed.
Medical malpractice
Dughaish v. Cobb, No. 82A04-9906-CV-271.
May 15, 2000
OUTCOME: Appeal was denied
OPINION
Sabria N. Dughaish, a minor by her mother and next friend Laura A. Dughaish, and Laura A. Dughaish and Khalil Dughaish, individually, (referred collectively as the “plaintiffsâ€) appeal t...he trial court's denial of their Motion to Correct Errors pursuant to Indiana Trial Rules 50 and 59.   We affirm.
Issues
The plaintiffs raise the following consolidated and restated issues for our review:
1.   Whether the trial court properly tendered modified Final Instruction No. 4 to the jury, an instruction which contained the traditional standard of causation in medical malpractice actions;  and
2.  Whether the trial court properly denied the plaintiffs' Motion to Correct Errors pursuant to Indiana Trial Rules 50 and 59.
Conclusion
Based on the foregoing, we hold that the trial court did not err in tendering modified Final Instruction No. 4 to the jury which contained the traditional standard of causation in medical malpractice actions.   In addition, we hold that the trial court properly denied the plaintiffs' Motion to Correct Errors pursuant to Indiana Trial Rule 50 and 59 because there was abundant evidence in the record to support the jury's verdict.
Real estate
Mid-West Federal Sav. Bank v. Kerlin, No. 87A01-9605-CV-167.
Oct 30, 1996
OUTCOME: Reversed
Rory O'Bryan, James H. Ham, III, Baker & Daniels, Indianapolis, for Appellants.
Glenn A. Deig, Evansville, for Appellees James T. Kerlin and Glenna Kerlin.
OPINION
NAJAM, ...Judge.
STATEMENT OF THE CASE
Mid-West Federal Savings Bank ("Mid-West") and Lester Hunt and Mary Hunt ("the Hunts") appeal from the trial court's summary judgment in favor of James T. Kerlin and Glenna Kerlin ("the Kerlins"). The Kerlins filed their complaint seeking satisfaction of a judgment lien against property owned by the Hunts and mortgaged to Mid-West. Prior to the Hunts' purchase, the property had been the subject of a foreclosure action brought by Permanent Federal Savings Bank ("Permanent Federal"). In their complaint against the Hunts and Mid-West Federal Savings Bank.
Conclusion
We conclude that the trial court erred when it granted summary judgment in favor of the Kerlins. See Laux v. Chopin Land Assoc. Inc., 615 N.E.2d 902, 904 (Ind.Ct.App.1993), trans. denied. (where there is no factual dispute, court of appeals will determine whether trial court correctly applied law). The court held that the property in question must be sold and the proceeds used to satisfy the Kerlins' Joe Holland judgment. However, the trial court's judgment is contrary to law. Because their interest in the property did not attach until after the mortgage foreclosure suit was filed, the Kerlins were not proper parties to the suit. Furthermore, Permanent Federal was not required to file a lis pendens notice in order to bind the Kerlins to the foreclosure judgment and extinguish their interest in the property. The Kerlins' judgment was subordinate to Mid-West's mortgage, and the lien of their judgment was extinguished by the judgment and decree of foreclosure by operation of law. Accordingly, we reverse the trial court's grant of summary judgment in favor of the Kerlins and direct the trial court to enter summary judgment for Mid-West and the Hunts.
Reversed.
