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Opinions March 25, 2022 – The Indiana Advocate

The following notices were posted after the IL deadline on Thursday:

7and Circuit Court of Appeals

Gorss Motels, Inc. v. Brigadoon Fitness, Inc. and Brigadoon Financial, Inc.
21-1358
Appeal from the United States District Court for the Northern District of Indiana, Division of Fort Wayne. Judge Holly A. Brady.
Civil. Upholds denial of class certification in action brought by Gorss Motels Inc. under the Telephone Consumer Protection Act seeking legal penalties for itself and on behalf of a class of fax advertisement recipients allegedly unsolicited submissions from Brigadoon Fitness Inc. and Brigadoon Financial Inc. Finds that at the class certification stage, it was not on Brigadoon to prove the merits of its defense of authorization, which it supported by a viable theory and specific evidence. Also finds that the onus was on the plaintiff to demonstrate that the common questions of law or fact would predominate in the subsequent resolution of the leave issue at the merits stage. Finally, finds that the district court did not abuse its discretion in finding that Gorss failed to discharge this charge.

Indiana Supreme Court

Harold Arrendale v. American Imaging & MRI, LLC aka Marion Open MRI; Isa Canavati, MD; Amy Sutton, NP; Allied Physicians, Inc. a/k/a Fort Wayne Neurological Center; Alexandre Boutselis, MD; John Dean, MD; Donald Bruns, MD; Marion General Radiology, Inc.; Jon Karl, MD; and Northeast Orthopedics, PC
21S-CT-370
Civil tort. Reverses summary judgment granted to Marion Open MRI in a lawsuit brought by Harold Arrendale. Find Sword c. NKC Hospitals, Inc., 714 NE2d 142 (Ind. 1999) and Section 429 of the Restatement (Second) of the Torts Apparent Agency Principles apply to non-hospital medical entities that provide health care to patients. Also finds that Arrendale has shown that there are genuine material factual issues as to whether the radiologist who read and interpreted her MRIs was an apparent agent of defendant Marion Open MRI. Referrals for continuation of the procedure.

Darci Wilson v. Anonymous defendant 1
21S-CT-371
Civil tort. Set aside the grant of summary judgment in favor of anonymous defendant 1 in a dispute with Darci Wilson. Finds that under Section 267 of the agency’s (Second) Restatement, a medical service provider may be held liable for the acts of an apparent agent based on the provider’s manifestations of a relationship of agency with the apparent agent, causing a third party to rely on such a relationship. Also finds that there were disputed issues of fact as to whether unnamed Defendant 1 introduced Wilson’s physical therapist as his apparent agent. Referrals for continuation of the procedure. Judge Geoffrey Slaughter agrees with the judgment with a separate opinion.

friday notice

Indiana Court of Appeals

Cyrille J. Catellier c. Tim K. Catellier, Eli Catellier, Allie Grigsby and Bobbie Baldwin (Mem. Dec.)
21A-CP-1243
Civil Plenary. Upholds the dismissal of Cyrille J. Catellier’s motion for correction of error, filed following the Hendricks Circuit Court’s denial of his motion for dispensation from judgment, which challenged the order executing a mutual release, recognizance of not to sue and the settlement agreement between Cyrille, Tim Catellier and Bobbie Baldwin. Finds that the court of first instance did not abuse its discretionary power when it rejected Cyrille’s request for dispensation from judgment because he did not raise a claim or well-founded defence, and that the court of trial court therefore did not abuse its discretionary power when it dismissed Cyrille’s request to correct an error. Judge Elaine Brown disagrees with a separate opinion.

Justin Black v. Indiana State (dec. brief)
21A-CR-1703
Criminal. Upholds the revocation of Justin Black’s probation and the order that he serve the remaining 2,100 days of his six-year suspended sentence at the Indiana Department of Corrections. Finds that the Decatur Superior Court did not abuse its discretion.

In the matter of the involuntary termination of the parent-child relationship of MD and TD (minor children), and NW (mother) and TD (father) v. Indiana Department of Child Services (Dec. Mem.)
21A-JT-2312
Juvenile breach of parental rights. Upholds termination of the parental rights of mother NW and father TD over their minor children, MD and TD Finds clear and compelling evidence to support the Delaware Circuit Court’s finding that there is a reasonable likelihood that the terms remain unchanged and that termination of TD’s parental rights is in the best interests of the children.

Kenneth R. Pitts, Jr. v. Indiana State (dec. brief)
21A-CR-2564
Criminal. Upholds Kenneth R. Pitts Jr.’s total sentence of 30 years for his Level 2 intentional homicide and Level 2 burglary convictions. Finds Pitts has failed to bear his burden to show that his sentence is improper.