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The decedent suffered serious and permanent brain damage as the result of an altercation with officers of the Chicago Police Department. In a lawsuit arising out of these injuries, the decedent's claim was settled for fifteen million dollars. Approximately four years after the settlement, in October 2004, the decedent died intestate. Because the decedent left no surviving spouse or issue, according to I.C. § 29-1-2-1(d)(3) his estate was to be distributed to his surviving parents, brothers, sisters, and issue of his deceased brothers and sisters. The decedent's father, Baltasar, filed a Petition for the Appointment of Administrator and for Supervised Administration, which listed himself, the decedent's brothers, and the decedent's half-sister, Paula, as known heirs.

Paula was born in October 1967 to Carmen Nadine Durea, who is not the decedent's mother. Carmen and Baltasar married in Arizona in April 2003, when Paula was thirty-five years old. During the marriage, Carmen lived in Arizona and Baltasar lived in Indiana. In October 2003, Baltasar signed a birthday card to Paula as "YOUR DAD B.E.R." A March 2007 Siblingship Report stating that Paula and Tony have a 98.1% probability of being half-siblings. The marriage between Baltasar and Carmen was annulled in November 2005 pursuant to an Agreed Order of Annulment that, inter alia, stated as follows:


One of the decedent's brothers, Victor, filed a Petition to Determine Heirship, which alleged that Paula was not Joseph‟s half-sister and requested a hearing on the matter. Paula moved for summary judgment, to which Victor responded without designating any evidence. The trial court then granted Paula's motion for summary judgment. Victor filed a motion to correct error. On the day of the hearing on that motion, Victor filed two affidavits. In one affidavit, Baltasar stated that he mistakenly believed he was Paula's father because Carmen informed him that he was listed as such on her birth certificate, but he recently requested a copy of the birth certificate and discovered he was not listed on it. In the other affidavit, Victor stated that Baltasar was not listed on Paula's birth certificate. The trial court denied Victor's motion and he appealed.

On appeal, the Court first addressed whether it could consider Victor's affidavits. It noted that Victor neither requested a continuance under Trial Rule 56(I) or filed an affidavit under Trial Rule 56(F) and concluded that the affidavits were untimely filed as a designation on summary judgment. the Court then concluded that the affidavits could not be considered as newly discovered evidence in his motion to correct error under Trial Rule 59(A)(1) because the affidavits did not set forth the following:


Therefore, the Court refused to consider Victor's affidavits in the appeal.

The court then turned its attention to I.C. § 29-1-2-7(b)(4), which governs the intestate succession of children born out of wedlock. That statue provides as follows:


The Court held that the facts (without considering Victor's affidavits) demonstrated both that Baltasar both married Carmen and acknowledged that Paula was his daughter. It then turned to determining whether Paula was a "child born out of wedlock."

The Court discussed a variety of cases that "appear to support a claim that a child must show she is born out of wedlock before application of Section 29-1-2-7(b), in none of these cases was the Court explicitly asked to resolve this issue. Thus, this case presents an issue of first impression."

Paula did not designated any evidence showing Carmen‟s marital status at the time of Paula‟s birth. However, the Court held that this was not fatal because it did not matter whether Carmen was married to any person other than Baltasar at the time of Paula's birth. The Court concluded that the term "wedlock" should have the same meaning in the statute that it had under common law, in which that term refers to the status of the biological parents of the child in relation to each other. The Court then examined the evidence designated by Paula. It concluded that Baltasar‟s acknowledgement of Paula does not alone establish him as her biological father, particularly noting the lack of circumstances that would surround the acknowledgement of parenthood of a young minor. The Court then held that the Siblingship Report of a 98.1% probability of being half-siblings was also insufficient to show that Baltasar is Paula‟s biological father.

Finally, the Court addressed whether the agreed order of annulment precludes Baltasar or any other heir from challenging Paula's paternity. The Court held that it did not. Although prior cases had addressed the preclusive effect of such a determination on divorced parties has been noted in the context of an heirship determination, the Court distinguished that authority. The prior authority involved a custody dispute. In contrast, the preface to the Agreed Order of Annulment in this case defined its subject matter as property settlement.


Therefore, the Court held that the trial court erred in granting summary judgment in Paula's favor.

There are many lessons that this case can teach. First, when presenting evidence that is only admissible as newly discovered evidence, make sure that you provide a factual basis demonstrating why it should be considered as newly discovered evidence. Second, a child is born out of wedlock (for the purposes of intestate succession) if the parents of the child are not married to each other. Third, a person who is asserting paternity under the intestate succession statutes has a relatively high evidentiary standard that they must meet. Finally, language in a trial court's order that is not germane to the issue that it is resolving has no preclusive effect.

Brad A. Catlin
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In this case, Ingalls filed a four-count lawsuit against his former employer, alleging, inter alia, defamation. After one claim was dismissed, Ingalls hired Flatow to represent him as to the defamation claim only. Flatow proceeded to move for partial summary judgment on the defamation claim. The former employer filed a brief in opposition and a cross-motion for summary judgment on all three remaining counts of Ingalls’s complaint, including the defamation count. Ingalls did not file a reply to the response to his motion for partial summary judgment, nor did he file a response to the cross-motion for summary judgment. The trial court granted judgment to the former employer. Ingalls then sued Flatow for legal malpractice. Flatow's motion for summary judgment was denied and she was granted permission to pursue an interlocutory appeal.

On appeal, the Court turned to Indiana Professional Conduct Rule 1.2(c) to inform it of the scope of the duty that Flatow owed to Ingalls and narrowly construed the duty. The contract provided that Flatow would "draft a motion for summary judgment and a reply brief in the above matter" and that the "representation in this matter includes inception of the matter through the end of trial." The Court held as follows:


Because the representation was so limited, Flatow had no duty to respond to the former employer's motion for summary judgment, even though it addressed the defamation claim.

Judge Kirsch disagreed with this conclusion, finding that the Flatow's agreement to represent Ingalls in "the matter through the end of trial" was an express agreement to represent Ingalls on his defamation claim and to take all steps required by the applicable standard of care regarding the summary judgment proceedings and, thereafter, through to the end of trial. However, he concurred in the judgment because Ingalls failed to point to any legal argument that should have been made or evidence that should have been designated in reply in support of his own motion or in response to his former employer's motion that would have resulted in a more favorable outcome.

All attorneys should take note of the decision in this case. The Court's decision sends a clear signal that a lawyer's legal duty to represent a client in any particular matter will be narrowly construed to the definition of that matter. Courts should not find that a legal duty to represent a client in exists simply because of the existence of an attorney-client relationship in a very closely related matter. However, attorneys should be cautioned that this decision, while citing Indiana Professional Conduct Rule 1.2(c), does not claim that it is determining the scope of the ethical duties posed by that Rule.

Brad A. Catlin
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In this case, a man was rear-ended while driving a van. As a result of that collision, Richmond sustained injuries to his neck and back, so he brought suit against the other driver. Pursuant to a referral by his attorney, the plaintiff underwent a neuropsychological evaluation with a psychologist "to determine the presence and possible degree of disability associated with a closed head injury sustained in an automobile accident." The psychologist concluded, inter alia, that "the accident produced the brain injury." The defendant moved to strike the psychologist's testimony because he was not competent to testify regarding medical diagnosis. The trial court denied this motion after a hearing and allowed the psychologist to testify on these issues at trial over objection. The defendant appealed.

On appeal, the Court noted that the medical cause of a brain injury "is generally exclusively within the purview of medical doctors." While the Court refused to hold that a psychologist is per se unqualified to give such testimony, it held that this particular psychologist had not demonstrated that he is qualified to opine on causation in this case.


The Court then went on hold that the psychologist's testimony had no probative value.


The first part of this decision will be helpful to members of the bar generally, because it clarifies that an expert who is not a doctor will only be competent to testify regarding the causation of most medical conditions if that expert can show qualifications in determining the etiology of the particular medical condition in question. However, it is the Court's holding that the psychologist's testimony had no probative value that is likely to be affect litigation more. Defendants in personal injury cases will use this case to argue that no expert can testify on issues of causation of an injury unless that person has the requisite medical qualifications and can provide more than an inferential analysis of the cause of the injury. While the opinion gives room for plaintiffs to dispute this argument, it will have an effect on the value of any particular personal injury claim going forward.

Brad A. Catlin
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In this case, the appellee argued that the appellant had waived the error raised on appeal because the appellant did not object prior to filing a motion to correct error. The Court recognized that a party may not generally raise an issue for the first time in a motion to correct error. Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000). However, the Court refused to apply that general rule in this case.


The Court's decision on this issue indicates the Court's preference to decide cases on their merits, rather than on procedural games. Moreover, this decision emphasizes that there are always exceptions to any general rule.

Brad A. Catlin
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In Hicks, Hicks sued the City of Indianapolis for negligence and the City moved to dismiss, arguing Hicks failed to timely file a tort claim notice with the City. The trial court granted the motion and Hicks timely moved to correct error. A magistrate entered an order granting Hicks's motion to correct error and reversing the previous dismissal in favor of the City, signing on a line titled "Judge, Marion Superior Court 11." The CCS entry reflected that "Court approves granting Plaintiff's motion to correct error and denying Defendant's City of Indianapolis, motion to dismiss."

Ninety-nine days later, the City filed a motion, arguing that the order granting the motion to correct error had no legal effect for being signed only by a magistrate, the motion to correct error was deemed denied, and the case came to an end when Hicks failed to file a notice of appeal. The trial court then issued a nunc pro tunc order granting the motion to correct error as of the date the magistrate signed the order. The City appealed.

On appeal, the Court first addressed the magistrate's authority to enter the order correcting error. The Court noted that a magistrate may not enter a final appealable order, absent special circumstances described by statute. Nevertheless, the Court held that the City had waived any challenge to the validity of the order by not bringing the "irregularity" to the trial court's attention within the deadline for ruling on Hicks's motion to correct error.


The Court then went on to say that it would have found no error, even in the absence of a waiver, because of the trial court's subsequent use of a nunc pro tunc order. The Court concluded that the CCS entry provided a sufficient basis for the trial court's nunc pro tunc entry.


The Court concluded by examining the merits of the City's argument regarding the merits of the motion to correct error and affirmed the trial court's decision.

The Court's decision on the issue of waiver is educational. The Court held that the City waived any objection to the magistrate's exercise of judicial authority because it did not raise the issue while the Court still had the opportunity to rule on the motion to correct error. However, the Court was not obliged to rule on the motion at any particular time prior to the deadline and, therefore, the City may have felt it was premature to ask the trial court whether it intended to adopt the magistrate's decision as its own. The Court's decision places an affirmative duty upon all litigants to make sure that the kinds of "irregularities" that took place in this case are resolved in a timely manner, especially if the irregular decision is adverse to you.

The Court's ruling on the issues surrounding the nunc pro tunc ruling are less groundbreaking, but are still worth noting. The Court made it clear that all it wanted was some clear evidence in the record supporting the nunc pro tunc order. That evidence would be sufficient, even if there were other portions of the record that could raise an inference that the nunc pro tunc order was improper. This broadens the latitude trial courts enjoy with respect to issuing nunc pro tunc orders.

Brad A. Catlin
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In Wells Fargo, an employee sold crop insurance as a sales representative of this employer. The employer had adopted a written policy that it used, in part, to determine commissions for its employees, which stated that commissions would be earned when the premiums on the insurance had been paid. The employee left his employment, which led to a dispute over whether he was owed commissions on the insurance sold, but for which his employer had not yet been paid. The parties filed cross-motions for summary judgment on the issue of the employee's wage claim and the trial court entered judgment for the employee. The employer appealed.

On appeal, the employee first argued that the employer was judicially estopped from raising some of the arguments it was attempting to raise on appeal. The Court quickly dealt with these issues, reaffirming the distinction between inconsistent legal positions and alternative and contradictory legal positions. The Court then turned to the key issues in the case.


The general rule applied in this case, despite the existence of the written policy to the contrary, because the employer failed to show that the employee had never been informed of the written policy. This is an interesting legal conclusion because it limits the situations in which the exception may apply. Thus, an employer's proof that it and an employee have engaged in a course of conduct that demonstrates that a different compensation scheme over a period of years does not create a genuine issue of material fact regarding whether the exception applies, unless the employer can also demonstrate that the employee had some knowledge about the existence of this alternative compensation scheme.

However, the aspect of this case which will have wider application is the type of evidence that the Court relied upon when reaching this conclusion. In its decision, the Court relied heavily on the deposition of the employee's manager and an affidavit from the employee. However, those evidentiary materials had not been formally designated to the trial court. Instead, they were merely "included in materials submitted to the trial court." The Court held that these evidentiary materials were properly before the Court because the trial court had been apprised of the specific material upon which the employee relied, while noting the absence of an objection to these materials.

The Court's treatment of this evidence is instructive. Counsel should object to all evidentiary material not specifically designated. However, the Court's decision appears to support a liberal approach toward the more technical aspects of Trial Rule 56. Therefore, it will be of use to litigants who have failed to comply with all the technical requirements of that Rule.

Brad A. Catlin
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In Droscha, an action arose out of a dispute regarding the manner in which real estate brokers should split the commission from the sale of real estate. One broker (Shepherd) filed a grievance against the other (Droscha) and the matter was referred to arbitration. The arbitration panel ultimately entered an award for Shepherd.

After the adverse decision in arbitration, Droscha filed an action against Shepherd and the local board of realtors, seeking to have the arbitration award set aside. After a trial, the trial court vacated the arbitration award and ordered a new arbitration, appointed by a realtor association. The new arbitration panel also decided in favor of Shepherd. Droscha petitioned the trial court to vacate the new arbitration award, naming both Shepherd and the realtor association as parties. The trial court dismissed the action pursuant to Trial Rule 12(B)(6).

On appeal, the Court reached two interesting conclusions. First, it rejected an invitation to apply the standard announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), "rely[ing] upon the Indiana standard" instead. The Court then extended quasi-judicial immunity to arbitrators.


The Court also found it was "significant" that the redress being sought could "be achieved through his action against Shepherd alone." The Court then went on to address the substantive arguments related to the dismissal of the action against Shepherd.

This case is significant for two reasons. First, it is the first time (that this author has been able to discover) that the Indiana Court of Appeals specifically addressed Twombly's application to cases in Indiana state court. Second, it limits the manner in which one can challenge an adverse arbitration award. Although the Court left open the possibility that the doctrine of arbitral immunity should not always apply, the case leaves little room for avoiding its application.

Brad A. Catlin
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A water line was leaking near a road in Putnam County, causing water to run across a road and freeze. A Putnam County deputy sheriff was called to the scene of an accident at the location of the leak, notified the Highway Department of the icy condition of the road, and left. The deputy did not take steps to alleviate the icy condition or warn the traveling public of the icy condition. After the deputy left, Price encountered the icy condition, lost control of her vehicle, and was injured in an automobile accident. She sued the Sheriff and others, claiming negligence. The Sheriff moved to dismiss, alleging that he owed no duty to alleviate or warn motorists of the condition of the road and that he was immune from suit. The trial court denied that motion and the Sheriff appealed.

On appeal, the Sheriff argued that he was immune because the danger was a temporary condition caused by the weather. The Court disagreed, noting that the complaint alleged that the condition of the road was caused primarily by a leak in a water line owned by the water company and, therefore, was not caused by the weather. The Court then went on to hold that the Sheriff had a duty to warn of the dangerous condition.

The key to this case was, therefore, the way in which it was pled. The Court based its decision, in large part, upon the fact that the complaint did not plead that the water line broke because of the weather. Instead, the complaint contained no allegation concerning the cause of the leak. It would be interesting to see how the case evolves. For instance, if the weather actually caused the leak, how would this fact affect the Court's analysis? However, these questions could all be avoided at this stage in the proceeding because notice pleading does not require that a plaintiff plead these kinds of facts.

Brad A. Catlin
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In Eiteljorg v. Lean, Case No. 49A05-0912-CV-679, the plaintiff and defendants had all been co-defendants in a prior lawsuit. Two of the co-defendants settled and submitted a proposed order dismissing them from the lawsuit to the trial court. The order contained language setting forth a contribution bar and directing entry of final judgment pursuant to Rule 54(B) as to those co-defendants. The remaining co-defendant, Lean, proceeded with his defense to the action and did not challenge the order dismissing his co-defendants. Eventually, Lean settled with the plaintiffs for $1.73 million.

After settling the underlying lawsuit, Lean sued his former co-defendants for contribution. They moved for summary judgment, citing the contribution bar in the dismissal order. The trial court denied their motion and they appealed.

On appeal, the Court concluded that Lean's claim for contribution was barred by the doctrine of issue preclusion.


While the Court sought to limit its holding to the facts of the case, calling those facts "unique," this case serves as an important practice tip. One should always consider correcting any error in a final judgment at the earliest possible moment, so as to prevent the application of res judicata principals to your particular situation. Failure to do so is a calculated risk that can have large adverse side effects.

Brad A. Catlin
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In this case, a pregnant woman was admitted to a hospital in active labor and was being attended to by a midwife, who had provided prenatal care to the woman during her pregnancy. After the woman was admitted to the hospital, the midwife ruptured the "bag of waters." Less than an hour later, a prolapsed umbilical cord was identified and a doctor was called to the hospital in anticipation of having to perform a Cesarean section. Less than an hour after that, the doctor delivered a stillborn infant girl, who could not be resuscitated. It was discovered that the infant died while the mother was in labor and that the fetal heart rate monitor, which had indicated a heart rate, was actually registering Brown's heart rate. An examination of the umbilical cord and placenta revealed "a large thrombus midway in the cord."

The parents filed a complaint against both the hospital and the midwife, claiming wrongful death and negligent infliction of emotional distress. The trial court granted summary judgment to the defendants on all counts, from which the parents appealed.

On appeal, the Court held that parents could state a claim for negligent infliction of emotional distress against the hospital. It first concluded that the parents' claimed emotional damages, directly related to the child's stillbirth, are of the kind and extent normally expected to occur in a reasonable person and are not likely speculative, exaggerated, fictitious, or unforeseeable. The Court then turned to who qualified as a patient under the Medical Malpractice Act. It followed Ind. Patient's Comp. Fund v. Winkle, 863 N.E.2d 1 (Ind. Ct. App. 2007), reh'g denied, trans. denied, which held that a fetus does not qualify as a "patient" under the Act, and then turned to the question of whether the pregnant mother qualified as an “actual victim” of negligence able to assert Parents' claim for negligent infliction of emotional distress under the Act. The Court held that she did.


The Court then held that the Parents may make the same claim against the midwife, even though she elected non-coverage under the Act, because the Act merely dictates procedures by which a claimant may bring a cause of action.


This case is interesting for many reasons. First it clarifies both the modified impact rule and the remedies Indiana law provides to parents whose children are stillborn due to the negligence of another. It is also likely that the Court's rationale in support of its judgment will be controversial, particularly the part of the case discussing the legal relationship between a pregnant woman and her unborn child. However, litigators should pay particular attention to a passage in the decision discussing Ind. Patient's Comp. Fund v. Butcher, 863 N.E.2d 11 (Ind. Ct. App. 2007), which highlights the reasons why the Court reached this particular result.

Brad A. Catlin
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