ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE:
STEVEN D. GROTH PAUL B. KUSBACH
PETER J. AGOSTINO Paul Kusbach Attorneys
South Bend, Indiana South Bend, Indiana
PHILIP E. KALAMAROS
PETER J. BAGIACKAS
Edward N. Kalamaros & Associates
South Bend, Indiana
JENNIFER M. RICHARDSON and ) PLYMOUTH COMMUNITY SCHOOLS, ) ) Appellants-Defendants, ) ) vs. ) No. 50A03-9811-CV-469 ) ELISA CALDERON, ) ) Appellee-Plaintiff. )
experienced a number of side effects while taking the anti-seizure medication, including
"drowsiness, increased difficulty in concentration, shortened attention span, and [a] general
feeling of being medicated." Record at 164.
Upon her discharge from Memorial Hospital on June 14, 1996, Calderon was admitted to Memorial Hospital's traumatic brain injury outpatient rehabilitation program. While in the outpatient rehabilitation program, Calderon came under the care of William H. Youngs, Ph.D., a licensed psychologist and clinical neuropsychologist who practices at Memorial Hospital's Independent Living Center. Dr. Youngs treated Calderon throughout the month of June 1996, and his last clinical contact with her was in July 1996. Against medical advice, Calderon discharged herself from the outpatient rehabilitation program in mid-August 1996. In an affidavit designated by Calderon in support of her claim that summary judgment would be inappropriate because material issues of fact exist, Dr. Youngs stated that "[t]here were clear indications from Elisa Calderon's behavior during the clinical contacts, as well as the neuropsychological evaluation that there were difficulties in frontal lobe system executive functioning regarding planning, organization, self-monitoring, and judgment." Record at 170.
Calderon attended Bethel College in the fall of 1996. Although Calderon stated in her affidavit that she struggled while at Bethel College, she took six classes and earned a cumulative grade point average of 3.199 during the fall semester. In one class, English 101: Written Communication II, Calderon received the grade of B+.
hereafter accrue on account of or in any way growing out of any and all known
and unknown, foreseen and unforeseen bodily and personal injuries and
property damage and the consequences thereof resulting or to result from the
accident, casualty or event which occurred on or about the 30th day of May,
1996, at or near Berkley & Columbus Streets in Plymouth, Indiana in Marshall
It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said releasees deny liability therefor and intend merely to avoid litigation and buy peace.
The undersigned hereby declare(s) and represent(s) that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release it is understood and agreed, that the undersigned rely(ies) wholly upon the undersigned's judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefor and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed.
The undersigned further declare(s) and represent(s) that there may be unknown or unanticipated injuries resulting from the above stated accident, casualty or event and in making this Release it is understood and agreed that this Release is intended to include such injuries.
The undersigned further declare(s) and represent(s) that no promise, inducement or agreement not herein expressed has been made to the undersigned, and that this Release contains the entire agreement between the parties hereto, and that the terms of this Release are contractual and not a mere recital.
This Release expressly reserves all rights of the person, or persons, on whose behalf the payment is made and the rights of all persons in privity or connected with them, and reserves to them their right to pursue their legal remedies, if any, including but not limited to claims for contribution, property damage and personal injury against the undersigned or those in privity or connected with the undersigned.
repayment of monies shall remain under advisement pending further hearing to be scheduled
on request." Record at 294.
Richardson and Plymouth Community Schools thereafter filed petitions with the trial court to certify that the conditions for an interlocutory appeal to this court had been met. The trial court entered an order certifying the interlocutory appeal pursuant to Ind. Appellate Rule 4(B)(6), and this appeal ensued.
Additional facts will be set forth where pertinent.
circumstances. Ford v. State, 704 N.E.2d 457; Zemco Mfg., Inc. v. Pecoraro, 703 N.E.2d
Affidavits in support of or in opposition to a motion for summary judgment are governed by T.R. 56(E). Miller v. Monsanto Co., 626 N.E.2d 538 (Ind. Ct. App. 1993). T.R. 56(E) provides in pertinent part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."
Dr. Youngs's affidavit stated in pertinent part:
8. Although Elisa Calderon performed relatively well in the structured neuropsychological testing environment, it is my clinical impression that she would have more difficulty in less structured settings giving [sic] the frontal lobe damage/dysfunction and difficulty with executive system functioning. Individuals with damage to the frontal lobes of the brain tend to have difficulties with attention, concentration, organizing their thoughts, difficulty with understanding and comprehending complex ideas, and dividing their attention between competing events. It is also typically the case, and it is the case with Elisa Calderon, that she tended to minimize and deny the extent of her neurological deficits, such that she would not indicate to others that she had problems nor even perceive herself that she had problems. In this regard, it is very unlikely that Elisa Calderon would be able to appreciate and understand a complicated legal document such as that which I have been shown, which I am told she signed on December 18, 1996. . . .
9. My last clinical contact with Elisa Calderon was July of 1996. She had difficulty in attending the program because of fatigue, transportation issues, and possibly questionable comprehension of the extent of her deficits. She ultimately discharged herself from the program against our advice. It is unfortunate that Elisa Calderon discharged herself from the program as the staff of the Independent Living Center most likely would have been able to improve her cognitive functioning, thereby helping her make better judgments in the future. This would have been true both in her academic setting at Bethel College, of which we had concerns about her attending on a full time basis, as
well as her ability to comprehend and use good judgment in terms of complex
10. It is my opinion that Elisa Calderon did not appreciate and understand the complicated legal document given to her about six months after her traumatic brain injury on May 30, 1996 . . . .
Record at 170-72.
It is readily apparent that Dr. Youngs's affidavit, when read in its entirety, meets the criteria set forth in T.R. 56(E) and that there was a proper foundation for the opinions contained in the affidavit. Such affidavit was made on the bases of Dr. Youngs's own personal knowledge of Calderon's injuries as well as Calderon's behavior during clinical contacts, a neuropsychological screening and comprehensive neuropsychological evaluations conducted by Dr. Youngs, and neuropsychological counseling/psychotherapy provided by Dr. Youngs. In addition, it is apparent from the affidavit that Dr. Youngs, a licensed psychologist and clinical neuropsychologist, was personally familiar not only with Calderon's cognitive functioning, but also with the limitations generally found in individuals, such as Calderon, with damage to the frontal lobes of the brain.
The trial court did not abuse its discretion in refusing to strike paragraphs 8 through 10 of Dr. Youngs's affidavit.
Richardson claims that the newspaper articles contain unsworn statements and are unverified
exhibits which constitute inadmissible hearsay.
Again, we apply an abuse of discretion standard when reviewing a trial court's evidentiary rulings. Ford v. State, 704 N.E.2d 457; Zemco Mfg., Inc. v. Pecoraro, 703 N.E.2d 1064.
Calderon asserts before this court, as she did before the trial court, that the newspaper articles were not offered to prove the truth of the matter asserted and, therefore, they did not constitute inadmissible hearsay. Calderon asserts that the newspaper articles were included in Guy's files and "were part of Cincinnati Insurance Company's response to a proper Ind. Trial Rule 34(C) Request for Production." Appellee's Brief at 4. Accordingly, she asserts that the articles were offered to establish Guy's state of mind, i.e., that Guy was aware of the severity of Calderon's brain injuries and the degree to which those injuries interfered with Calderon's cognitive functioning "when he talked her into signing the release in his office under the pretense that she was getting insurance money to pay her medical bills." Appellee's Brief at 28.
A trial court errs in excluding on hearsay grounds newspaper articles where the articles are not offered into evidence to establish the truth of the matter asserted, but rather are properly offered to establish other facts or inferences. Kucki v. State, 483 N.E.2d 788 (Ind. Ct. App. 1985). In this case, Calderon did not offer the newspaper articles to establish the truth of the matter asserted therein. Accordingly, the trial court did not abuse its discretion in denying Richardson's motion to strike those articles.
that the trial court's decision was erroneous. A summary judgment
determination shall be made from any theory or basis found in the evidentiary
matter designated to the trial court.
City of New Haven v. Chemical Waste Management of Indiana, L.L.C., 701 N.E.2d 912, 922 (Ind. Ct. App. 1998), trans. denied (citations omitted).
Richardson argues that the trial court erred in denying her summary judgment motion because the release executed by Calderon on December 18, 1996 was an unambiguous, general release, that Calderon understood and voluntarily signed the release, and that Calderon therefore knowingly and willingly released Richardson from any and all personal injury claims she had against her as a result of the May 30, 1996 accident. Richardson also claims that Calderon had the mental capacity to understand the release because, at the time Calderon signed it, she maintained over a B average as a freshman at Bethel College.
Plymouth Community Schools argues that: 1) it was Calderon's burden to prove that she should be able to avoid the release because of incapacity; 2) the evidence Calderon presented failed to create a genuine issue of fact regarding her incapacity; and 3) as a third- party beneficiary of the release signed by Calderon, it is entitled to judgment as a matter of law.
Calderon argues that the trial court's order denying summary judgment should be affirmed because she lacked the capacity to make a knowing and voluntary release of her rights and that, under the circumstances, the execution of the release was unconscionable. The evidentiary materials designated to the trial court establish that there are genuine issues of material fact with regard to whether Calderon was competent to sign the release
submitted to her on December 18, 1996, whether she made a knowing and willful release of
her claims, and whether the release was made under duress or undue influence or was
otherwise unconscionable. Accordingly, the trial court did not err in denying Richardson's
and Plymouth Community Schools's motions for summary judgment.
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