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Court tackles 2 first-impression issues

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The Indiana Supreme Court ruled on a case today in which there were two issues of first impression, finding consolidation of a trial with a preliminary injunction hearing without notice isn't a reversible error unless a showing of prejudice can be made.

In John C. Roberts, M.D. v. Community Hospitals of Indiana, Inc., No. 49S02-0804-CV-189, the high court was faced with two issues Indiana courts hadn't directly ruled on - the standard of review of a trial court's decision to advance and consolidate a trial on the merits with a preliminary injunction, and whether a party which solicits the equivalent of a final judgment waives any challenges to consolidation as improper.

Dr. John C. Roberts was a resident in Community Hospitals' Family Medicine Residence Program under a one-year contract. Despite tardiness and absenteeism from work, Roberts' contract was renewed for a second year. After several warnings about his missing exams and not showing up for shifts, Community terminated his contract. Roberts sued for breach of contract and the trial court held a preliminary injunction hearing. The court then consolidated without notice the hearing with a trial on the merits pursuant to Ind. Trial Rule 65(A)(2), denying Roberts' application for a preliminary injunction, and entering final judgment in favor of Community. The trial court also denied Roberts' motion to correct error, in which he argued if he had received notice, he would have called other witnesses and presented more evidence, but he didn't specify names or facts.

The high court hasn't addressed T.R. 65(A)(2) since it was enacted in 1970, and turned to federal courts to see how they have interpreted the similar Federal Rule of Civil Procedure 65(a)(2). The prevailing federal rule is that allegations of prejudice by the consolidation must be specific, which means more than simply identifying the steps that might be possible to produce evidence not shown at the preliminary injunction stage, wrote Justice Theodore Boehm.

The justices also recognized that a stricter requirement of showing prejudice may produce unfair results and may need to be relaxed in situations, such as when a party had little time for discovery of matters largely known to its opponent. The Supreme Court then outlined items a court must consider to determine prejudice following a surprise consolidation.

The Supreme Court also examined another issue of first impression: Community's argument that Roberts can't claim surprise from consolidation because he submitted a proposed order to the court requesting relief on the merits. The 3rd and 7th Circuit appeals courts have addressed this issue and ruled a plaintiff had waived any objection to the timeliness of a notice because he had submitted a brief and a proposed order which "contemplated solely a final adjudication on the merits," wrote the justice.

"We prefer to resolve cases on the merits if in doubt, and we therefore find no waiver in this case but observe that Community's argument finds support in the foregoing federal authority," wrote Justice Boehm. "In the future, of course, parties should be mindful that a request for relief available only in a final judgment after a preliminary injunction hearing may invite consolidation under Trial Rule 65(A)(2) and waive any objection to lack of notice."

The Supreme Court affirmed the consolidation and entry of final judgment.

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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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