Volume 37 Issue 29 September 3, 2010

Girdler v. State, No. 73A01-1001-CR-14, __ N.E.2d __ (Ind. Ct. App., Aug. 26, 2010)

Concludes, contrary to other Court of Appeals cases, that a defendant may be convicted of auto theft even if he was not the original thief; also concludes the rule of “exclusive possession of stolen property since the time of the original theft only applies where direct evidence of a defendant’s knowledge of the property’s stolen character is lacking and such knowledge must be proven circumstantially.”

Adcock v. State, No. 47A01-0912-CR-591, __ N.E.2d __ (Ind. Ct. App., Aug. 27, 2010)

Prosecutor’s analogy to jig saw missing two pieces to demonstrate the difference between beyond all reasonable doubt and beyond a reasonable doubt did not require reversal.

Fisher v. State, No. 10A01-1001-CR-21, __ N.E.2d __ (Ind. Ct. App., Aug. 30, 2010)

Defendant’s constitutional right to a speedy trial was violated when he diligently attempted to be tried on Indiana charges while in federal custody for five years but State did not seek to have him tried under a policy not to return persons in another jurisdiction’s custody until their sentences were served in that jurisdiction.

Regalado v. Eastate of Regalado, No. 64A05-0911-CV-672, ___ N.E.2d ___ (Ind. Ct. App., Aug. 27, 2010)

Indiana Code section 29-1-2-7(b), which governs paternal inheritance to, through, and from a child born out of wedlock, requires a child to show she is a child born out of wedlock; because there was a genuine issue of material fact as to whether the child in this case was a child born out of wedlock, trial court erred in granting summary judgment in the child’s favor.

Eads v. Community Hosps., No. 45S03-1001-CV-33, ___ N.E.2d ___ (Ind., Sept. 1, 2010)

Where patient as injured leaving hospital, and the medical malpractice limitations period expired before the trial court dismissed her general negligence complaint for failure to comply with the Medical Malpractice Act, her medical malpractice action alleging the same facts as the dismissed complaint may be deemed a continuation of the first complaint for purposes of the Journey’s Account Statute.



Girdler v. State, No. 73A01-1001-CR-14, __ N.E.2d __ (Ind. Ct. App., Aug. 26, 2010)

BARNES, J.

It is true that the facts of this case, as applied to Girdler, more closely resemble the crime of receiving stolen auto parts than auto theft. It is a well-settled principle of Indiana law, however, that one may be charged with theft even if the evidence is stronger that the person was not the actual thief and actually received stolen property instead, and vice versa. See Purifoy v. State, 821 N.E.2d 409, 413 (Ind. Ct. App. 2005), trans. denied. Our supreme court has explained:

If the State meets its burden of proof with respect to all the necessary elements of either the theft or receiving stolen property offense as alleged in the charging instrument, it is of no consequence whether the accused was the person who actually took the stolen property from its authorized possessor because, once this burden is met, the State has proved that the accused, whether actual thief or not, has done precisely what is forbidden by both subsection (a) and (b) [of Indiana Code Section 35-43-4-2]—knowingly or intentionally exercising unlawful control over property of another with a purpose to deprive.

Gibson v. State, 643 N.E.2d 885, 892 (Ind. 1994).

Both Purifoy and Gibson were addressing our theft statute, not the auto theft statute. Still, the language of both statutes is virtually identical, and we see no reason why a different rule of law would to apply to theft/receiving stolen property as would apply to auto theft/receiving stolen auto parts. That is, a defendant such as Gibson may be charged with and convicted of auto theft, even if he was not the original thief, so long as the elements of auto theft are met—the knowing or intentional exercise of control over another’s vehicle, with intent to deprive the owner of the vehicle’s value or use. We acknowledge that some cases from this court have suggested that a defendant cannot be convicted of auto theft if there is no evidence that the defendant was the actual, original thief of the vehicle. See Buntin v. State, 838 N.E.2d 1187, 1191 (Ind. Ct. App. 2005) (“since Buntin was charged with the offense of auto theft, and not with the offense of possessing stolen property, we conclude that the evidence is insufficient to sustain his conviction”); Trotter v. State, 838 N.E.2d 553, 557 (Ind. Ct. App. 2005) (agreeing with defendant’s argument that “Indiana law does not permit the inference he was the person who stole [the victim’s] car”). We decline to follow Buntin and Trotter on this point.

We now directly address whether there is sufficient evidence to support Girdler’s auto theft conviction. Girdler specifically contends there is insufficient evidence that he was in exclusive possession of the vehicle for the entire period after the van originally disappeared from the Penske lot. It has been said that there is a “longstanding rule . . . requiring, for purposes of supporting a theft conviction in cases of considerable lapses of time, a showing that the defendant had exclusive possession of the stolen property during the period of time since the theft occurred.” Shelby v. State, 875 N.E.2d 381, 384 (Ind. Ct. App. 2007) (citing Muse v. State, 419 N.E.2d 1302, 1304 (Ind. 1981)), trans. denied. Assuming that the thirteen-day period here between the van’s original theft and its recovery by police on Girdler’s property was a “considerable” lapse of time, we do not believe that the rule recognized by Shelby precludes Girdler’s conviction. In other words, we conclude the State was not required to prove that Girdler was in exclusive possession of the van for that entire thirteen-day period.

Muse, upon which Shelby relied, was a theft case in which the defendant was found in possession of a vehicle reported missing over three months earlier. The defendant had argued that the evidence was “wholly circumstantial” and “did not show that he had actually taken the van or that he knew it was stolen property.” Muse, 419 N.E.2d at 1303. The defendant had strenuously argued that he did not know the vehicle was stolen, and there was no direct evidence of such knowledge. In light of the facts and the nature of the defendant’s argument, our supreme court held, “It is true that where any considerable length of time has elapsed from the time of the theft to the time of the arrest there must be some showing that defendant has had the exclusive possession of the property during that period of time.” Id. at 1304. The Muse court went on to conclude that there was sufficient evidence of the defendant’s exclusive possession of the vehicle since shortly after its theft and his knowledge that it was stolen. Id.

Here, in contrast to Muse, there was direct evidence that Girdler knew the van was stolen from the moment he first saw that Frye had left it on his property; thus, we need not determine whether Girdler had exclusive possession of the vehicle since its theft or shortly thereafter. Girdler originally admitted to police that he knew the van was stolen, based in part on one of its windows being broken out. Thus, unlike in Muse, there was no need here for the State to circumstantially prove that Girdler knew the van was stolen. We conclude that the Muse rule regarding exclusive possession of stolen property since the time of the original theft only applies where direct evidence of a defendant’s knowledge of the property’s stolen character is lacking and such knowledge must be proven circumstantially.

Similarly, our supreme court recently addressed the rule regarding the unexplained possession of recently stolen property in the context of charges for theft or receiving stolen property and held that the same rule applies to either charge. Specifically, the court concluded,

the mere unexplained possession of recently stolen property standing alone does not automatically support a conviction for theft. Rather, such possession is to be considered along with the other evidence in a case, such as how recent or distant in time was the possession from the moment the item was stolen, and what are the circumstances of the possession (say, possessing right next door as opposed to many miles away).

Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010). As with Muse, the rule regarding the unexplained possession of recently stolen property arose as a means of proving, by circumstantial evidence, a defendant’s knowledge that the property was stolen. See Id. Reliance on circumstantial evidence to prove knowledge is not necessary here.

In addition to Girdler’s admission that he knew the van was stolen, he permitted it to remain on his property for five to seven days and failed to take any action to notify police of its presence there. Some tools belonging to Girdler also were found in the van, and Girdler could not explain how they came to be there. This is evidence from which the trial court as fact-finder reasonably could have concluded that Girdler exerted control over the van with intent to deprive Penske of the van’s value or use. The State proved all of the elements of auto theft against Girdler, even though he was not the original thief of the van.

FRIEDLANDER, J., and CRONE, J., concur.

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Adcock v. State, No. 47A01-0912-CR-591, __ N.E.2d __ (Ind. Ct. App., Aug. 27, 2010)

BAKER, C.J.

As discussed above, the prosecutor’s analogy to a jigsaw puzzle missing two pieces was used to highlight the difference between “beyond a reasonable doubt” and “beyond all possible doubt.” Tr. p. 227, 285. The prosecutor explained the purpose of the analogy was that “if you have the whole puzzle that would be proof beyond all possible doubt because you could see the whole picture. I just wanted to make sure that you weren’t going to hold me to that higher burden.” Id. at 361. Indeed, it is apparent that the prosecutor was discussing a legal standard rather than specific evidence. Thus, contrary to Adcock’s contentions, there was no misstatement of the evidence.

Also, even assuming for argument’s sake that the prosecutor’s comments and questions to the jurors amounted to misconduct, Adcock also directs us to several cases from other jurisdictions that have condemned a prosecutor’s analogy similar to the one that was presented here. For instance, in People v. Katzenberger, 101 Cal.Rptr.3d 122, 125, ( Cal.Ct.App. 2009), the prosecutor used a Power Point presentation during closing argument where six different puzzle pieces came onto the screen in sequence. The picture was immediately and easily recognizable as the Statue of Liberty, even though two pieces of the puzzle were missing. On appeal, it was determined that the prosecutor had engaged in misconduct because the

presentation, with the prosecutor’s accompanying argument, leaves the distinct impression that the reasonable doubt standard may be met by a few pieces of evidence. It invites the jury to guess or jump to a conclusion, a process completely at odds with the jury’s serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt.

101 Cal.Rptr.3d at 127. However, the defendant’s conviction was affirmed and it was determined that the prosecutor’s conduct “was not prejudicial, even under a standard of beyond a reasonable doubt,” because “the [trial] court proceeded to instruct the jury with the correct definition of reasonable doubt.” Id. at 128.

And in Lord v. State, 806 P.2d 548, 552 (Nev. 1991), the prosecutor was held to have “improperly quantified the concept of reasonable doubt during closing argument by suggesting that having 90-95% of the pieces of a puzzle suffices to convict beyond a reasonable doubt.” 107 Nev. at 35, 806 P.2d at 552. However, reversal was not warranted because the jury was instructed as to the proper definition of reasonable doubt.

Finally, in People v. Wilds, 529 N.Y.S.2d 325, 327 (N.Y. App. Div. 1988), the trial court used the analogy of a jigsaw puzzle of Abraham Lincoln, stating that if the prosecution “makes out its case beyond a reasonable doubt even though some questions are unanswered, even though there [are] some blank spaces in the jigsaw puzzle you will say so you are convinced beyond a reasonable doubt that this is a [portrait] of Abraham Lincoln.” Id. In reversing the defendant’s conviction, the Wilds court determined that “the average American juror would recognize a jigsaw puzzle of Abraham Lincoln, long before all of the pieces are in place. Obviously, this is not the quantum of proof required in a criminal case.” Id., 529 N.Y.S.2d at 327.

Unlike the circumstances in these cases, the record demonstrates that Adcock also questioned the jurors on voir dire and emphasized that the jury should follow the trial court’s definition of reasonable doubt. Tr. p. 291-92. Thus, Adcock was afforded the opportunity to rebut the prosecutor’s analogy and the trial court provided the jury with a detailed instruction that contained the correct definition of reasonable doubt and the State’s burden of proof. Tr. p. 389, 617-18. More specifically, the trial court read the following instruction to the jury directly following voir dire and after the parties’ closing arguments just prior to deliberations:

A reasonable doubt is a fair, actual and logical doubt based upon reason and common sense. A reasonable doubt may arise either form the evidence or from a lack of evidence. Reasonable doubt exists when you are not firmly convinced of the Defendant’s guilt, after you have weighed and considered all the evidence. A Defendant must not be convicted on suspicion or speculation. It is not enough for the State to show that the Defendant is probably guilty. . . . The proof must be so convincing that you can rely and act upon it in this matter of the highest importance.

Tr. p. 388-89.

When considering the statements and questions as a whole that the prosecutor posed during voir dire, we cannot say that Adcock was unduly prejudiced by the jigsaw puzzle analogy or that fundamental error resulted. Moreover, in light of the opportunity that Adcock was afforded to rebut the prosecutor’s comments and the instructions that were given, we conclude that Adcock has failed to show that his due process rights and his right to a fair trial were violated. Thus, we decline to reverse Adcock’s convictions on this basis.6

[6 Although we do not reverse and decline to find that the prosecutor’s comments amounted to misconduct in this instance, we nonetheless caution prosecutors who are tempted to enliven voir dire and/or opening and closing arguments with visual aids or analogies such as the one here, that using such aids to illustrate the “beyond a reasonable doubt” standard is dangerous and unwise. Moreover, at least one court has acknowledged that “experiments,” including mere graphs, lines, charts, or Power Point presentations, may imperil a prosecutor’s attempt to establish the concept of guilt beyond a reasonable doubt. Katzenberger, 101 Cal.Rptr.3d at 129.]

NAJAM, J., and MATHIAS, J., concur.

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Fisher v. State, No. 10A01-1001-CR-21, __ N.E.2d __ (Ind. Ct. App., Aug. 30, 2010)

FRIEDLANDER, J.

The trial court entered its order denying Fisher’s motion to discharge on December 15, 2009. In its order, the court set forth the relevant stipulated facts as follows:

3. As indicated by the chronological case summary, incorporated by reference, the parties appeared on December 6, 2001. At that time, the Courtwas advised that the Accused was incarcerated in Floyd County, Indiana onfederal charges.

4. The Accused has been continuously incarcerated on federal charges since that time. The State of Indiana has been aware of that fact at least since December 6, 2001.

5. The State of Indiana has a policy whereby no attempt is made to secure the attendance of an Accused who is incarcerated in a foreign jurisdiction, until that person has finished serving their sentence in that  jurisdiction. . . .

* * *

7. The accused has consistently, repeatedly and diligently attempted to bring this matter to trial.

Appellant’s Appendix at 41-42. Given these facts, the court concluded:

even in this case where this action has been pending since June 19th, 2001, and the State has been aware of the location of the Accused since December 6th, 2001 but has not pursued prosecution until the Accused finishes his federal sentence, and the Accused has consistently and diligently sought trial in this matter, there is no authority supporting the Accused’s request for dismissal of this action.

. . . .

We begin with Crim. R. 4, which provides for the discharge of defendants when the State delays in bringing a defendant to trial. In essence, Crim. R. 4 is Indiana’s codification of a defendant’s speedy trial rights. Indiana has long held, however, that Crim. R. 4 “does not apply when a person is incarcerated in a foreign jurisdiction.” Howard v. State, 755 N.E.2d 242, 245 (Ind. Ct. App. 2001). In cases involving speedy trial rights of a defendant incarcerated in a foreign jurisdiction, we apply the IAD rather than Crim. R. 4. Howard v. State, 755 N.E.2d 242.

By way of background, we note that the IAD is an interstate compact between forty-eight states, the District of Columbia, and the federal government that creates uniform procedures for lodging and executing a detainer. See State v. Robinson, 863 N.E.2d 894 (Ind. Ct. App. 2007), trans. denied. The IAD’s purpose is to encourage the expeditious and orderly disposition of outstanding charges against persons already incarcerated in other jurisdictions. Id. The IAD process begins when the state bringing charges against a defendant in custody in another IAD jurisdiction files a detainer. Id.; see also I.C. § 35-33- 10-4. Once the detainer is filed, the defendant may file a request for final disposition, which triggers the requirement under the IAD that he be brought to trial within 180 days. See I.C. § 35-33-10-4. There is, however, no statutory mandate obligating the State to file a detainer within a set time frame. Indeed, here, the State acknowledges that since learning that Fisher was in federal custody in December 2001, it has taken no action to pursue prosecution of Fisher, including the filing of a detainer under the IAD. Absent the filing of a detainer, the provisions of the IAD are not triggered.

Given that Crim. R. 4 and the IAD do not provide grounds for Fisher’s discharge, Fisher’s argument must then be confined to a constitutional analysis of his right to a speedy trial.  . . . .

. . . .

We therefore cannot say that the State necessarily acted in bad faith in not pursuing prosecution. We are left with whether the State’s efforts can be characterized as official negligence.

As noted above, the State acknowledges that it had an affirmative duty to make a diligent and good-faith effort to bring Fisher to trial. The State explains its delay in pursuing prosecution of Fisher by pointing to an express policy to forego prosecution of a defendant until such time as the defendant completes serving time in a foreign jurisdiction.

We observe that as a matter of broad application, the State’s policy is of dubious utility.  . . . We certainly cannot approve of a blanket policy to sit back and wait for a defendant to complete his sentence in a foreign jurisdiction, especially under the facts of this case where the delay in prosecution is substantial. While there may very well be valid reasons underlying the State’s express policy to delay prosecution until such time as a defendant finishes serving time in a foreign jurisdiction, the State’s affirmative duty to diligently, and in good faith, pursue prosecution of defendants is the overriding factor to consider.

. . . In this case, we cannot condone the State’s “egregious persistence” in failing to prosecute Fisher for what has now amounted to five years, regardless of whether it was based upon an established, broadly-applied policy. See id.

. . . As the parties stipulated, Fisher “consistently, repeatedly and diligently attempted to bring this matter to trial.” Appellant’s Appendix at 42. That Fisher asserted his right to a speedy trial weighs in his favor.

Finally, we assess the fourth Barker factor—prejudice. Indiana courts have placed the burden of demonstrating actual prejudice on the defendant to prove a speedy trial deprivation. Lee v. State, 684 N.E.2d 1143 (Ind. 1997). The State admits “it appears as though three of the Barker factors may currently weigh in favor of [Fisher],” but nevertheless argues that Fisher is not entitled to relief because at this stage in the proceedings it is premature to make a determination as to whether Fisher has been prejudiced.

. . . .

Finally, Fisher argues that a showing of prejudice is unnecessary where consideration of the first three Barker factors coalesce in the defendant’s favor. See Prince v. Alabama, 507 F.2d 693 (5th Cir. 1975). Indeed, the Supreme Court has noted that “affirmative proof of particularized prejudice is not essential to every speedy trial claim.” Doggett v. United States, 505 U.S. at 655.

. . . Here, in light of our analysis of the first three Barker factors (excessive delay, inexcusable explanation for the delay, and Fisher’s assertion of his right to a speedy trial), we need not address whether Fisher has demonstrated actual prejudice because under the facts of this case, we will presume prejudice.

In sum, the answer to the question presented in this case is: yes, the State has an affirmative duty to pursue prosecution of Fisher and such duty derives from a defendant’s right to a speedy trial as guaranteed under the Sixth Amendment of the United States Constitution and article 1, section 11 of the Indiana Constitution. As set forth above, our balancing of the Barker factors under the facts of this case leads us to conclude that Fisher’s constitutional right to a speedy trial was violated. Fisher is entitled to relief. We therefore reverse the trial court and remand with instructions to dismiss the underlying action against Fisher.

BARNES, J., and CRONE, J., concur.

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Regalado v. Eastate of Regalado, No. 64A05-0911-CV-672, ___ N.E.2d ___ (Ind. Ct. App., Aug. 27, 2010)

VAIDIK, Judge

Joseph James Regalado received a fifteen million dollar settlement from the City of Chicago in 2000 and died intestate in 2004. Because he left no surviving spouse or issue, his estate is to be distributed to his surviving parents, brothers, sisters, and issue of his deceased brothers and sisters. Victor Regalado, Joseph’s brother, now appeals the Porter Superior Court’s determination on summary judgment that Paula Heffelfinger is Joseph’s half-sister. Joseph’s father married Paula’s mother in 2003, thirty-five years after Paula’s birth. When the marriage was annulled in 2005, Joseph’s father acknowledged Paula to be his biological child.

At issue is whether Indiana Code section 29-1-2-7(b), which governs the paternal inheritance to, through, and from a child born out of wedlock, applies to Paula such that she is an heir to Joseph’s estate. Specifically, subsection (b)(4) of the statute provides that a child born out of wedlock shall be treated as if the child’s father were married to the child’s mother at the time of the child’s birth if the putative father marries the mother of the child and acknowledges the child to be his own. We hold that a child must show she is a child born out of wedlock before Section 29-1-2-7 is applicable and that there is a genuine issue of material fact as to whether Paula is a child born out of wedlock. We also hold that Joseph’s father’s acknowledgment of Paula as his biological daughter in the Agreed Order of Annulment does not preclude Joseph’s father or any other heir from challenging his paternity of Paula. We thus conclude that the trial court erred in granting summary judgment in Paula’s favor. We reverse and remand.

. . . .

Paula’s summary judgment motion sought a determination of her legitimacy as an heir to Joseph’s estate as his half-sister. The burden of proof rests on Paula as a child who alleges that she is an illegitimate child entitled to inherit from or through her putative father. See Green v. Estate of Green, 724 N.E.2d 260, 264 (Ind. Ct. App. 2000). Paula contends she has met this burden by showing that Baltasar married her mother Carmen and acknowledged Paula as his biological child. Victor contends that such a showing is insufficient because she has not first shown that she is a child born out of wedlock.

. . . .

Under [Ind. Code § 29-1-2-7](b)(4), in order to inherit through the paternal side, a child born out of wedlock must show that the putative father married the mother of the child and acknowledged the child as his own. Thus, we determine whether Paula has met her burden of proving that she is entitled to inherit from Joseph’s estate under subsection (b)(4).

. . . .

Here, the designated evidence shows that Baltasar identified Paula as Joseph’s sister in his unsworn July 2003 Petition for Leave to Make Gifts in Guardianship and sworn October 2004 Petition for the Appointment of Administrator and for Supervised Administration. He also sent Paula a birthday card dated October 2003, which he signed, “YOUR DAD B.E.R.” And in Baltasar and Carmen’s November 2005 Agreed Order of Annulment, he acknowledged Paula as his biological daughter. We conclude that this designated evidence is sufficient to show that Baltasar acknowledged Paula as his biological daughter.

. . . .

. . . We [also] conclude that the plain language of Section 29-1-2-7 requires a child to show she is a child born out of wedlock.

. . . .

Paula has not designated evidence showing Carmen’s marital status at the time of Paula’s birth. As a result, she has not shown that she is a child born out of wedlock by virtue of the fact that her mother was unmarried at the time of her birth. This is not necessarily fatal to her claim of heirship, however. Because it is undisputed that Carmen and Baltasar were not married to each other when Paula was born, if Baltasar is Paula’s biological father, then Paula is a child born out of wedlock.

The designated evidence shows that Baltasar did not acknowledge Paula as his daughter until she was thirty-five years of age. Specifically, he identified Paula as Joseph’s sister in an unsworn July 2003 petition filed in Joseph’s guardianship and in a sworn October 2004 Petition for the Appointment of Administrator and for Supervised Administration of Joseph’s estate. Baltasar also sent a birthday card to Paula in October 2003, which he signed, “YOUR DAD B.E.R.,” and acknowledged Paula as his biological daughter in his and Carmen’s November 2005 Agreed Order of Annulment.

In addition to these acknowledgements, Paula designated a March 2007 Siblingship Report stating that Paula and [Joseph’s brother] Tony have a probability of relatedness of 98.1%. We conclude that the evidence designated is insufficient to prove as a matter of law that Baltasar is Paula’s biological father.

. . . .

We determine that there is a genuine issue of material fact as to whether Baltasar is Paula’s biological father and thus conclude that the trial court erred in granting summary judgment in Paula’s favor.

Reversed and remanded.

NAJAM, J., and BROWN, J., concur.

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Eads v. Community Hosps., No. 45S03-1001-CV-33, ___ N.E.2d ___ (Ind., Sept. 1, 2010)

BOEHM, J.

A patient was injured leaving the hospital on crutches. She sued, asserting a general premises liability claim, and claiming the hospital was negligent in refusing her a wheelchair. The medical malpractice limitations period expired before her general negligence complaint was dismissed for failure to comply with the requirement of the Medical Malpractice Act that a medical malpractice complaint be filed with the Department of Insurance before it is presented to a court. We hold that under these circumstances a medical malpractice complaint alleging the same facts as the dismissed complaint may be deemed a continuation of the first complaint for purposes of the Journey’s Account Statute [“JAS”].

. . . .

. . . [U]nder some circumstances the JAS permits a filing after the applicable limitation period to be deemed a “continuation” of an earlier claim. Specifically, the JAS can revive a claim subject to the MMA. Vesolowski v. Repay, 520 N.E.2d 433, 435 (Ind. 1988). The JAS also applies in the cases of several other statutory schemes. Willman v. Railing, 571 N.E.2d 590, 592 (Ind. Ct. App. 1991) (Will Contest Statute); City of Evansville v. Moore, 563 N.E.2d 113, 115 (Ind. 1990) (Wrongful Death Act); Ullom v. Midland Industries, Inc., 663 F. Supp. 491, 492 (S.D. Ind. 1987) (Products Liability Act).

To invoke the benefits of the JAS, a claimant must have commenced a timely action that failed for reasons other than “negligence in the prosecution.” I.C. § 34-11-8-1(a). The timeliness of Eads’s first complaint and its failure are not in dispute. . . .

. . . .

Eads’s original action also did not fail for “negligence in the prosecution” by reason of her filing initially as a premises liability claim. The Hospital is correct that “negligence in the prosecution” is broader than its origin in “failure to . . . prosecute as required by Indiana Trial Rule 41(E),” and the term has been said to apply to “any failure of the action due to negligence in the prosecution.” Zambrana v. Anderson, 549 N.E.2d 1078, 1081 (Ind. Ct. App. 1990). Examples of negligence in the prosecution beyond ordinary failure to prosecute are failure to pay the filing fee, Parks v. Madison County, 783 N.E.2d 711, 721 (Ind. Ct. App. 2002), and naming the wrong party. Zambrana, 549 N.E.2d at 1081.

There may be instances where the incorrect assertion of a general negligence claim is “negligence in the prosecution.” But we do not agree that dismissal of a general negligence claim for failure to comply with the MMA necessarily precludes application of the JAS. . . .

Though the JAS does not explicitly refer to good faith in the filing of the original action, Indiana courts have implied a good faith requirement. E.g., Basham v. Penick, 849 N.E.2d 706, 709 (Ind. Ct. App. 2006). For the same reason we do not find negligence in the prosecution, we are not persuaded that Eads exhibited bad faith when she filed her original claim sounding in general negligence.

. . . .

The Hospital suggests that the proposed IDOI complaint cannot be the continuation of the general negligence claim because the IDOI claim seeks different relief. In the first place, the JAS uses “continuation” to describe what an action “be considered” if it meets the criteria of I.C. § 34-11-8-1(b) and the original action meets the criteria of I.C. § 34-11-8-1(a). A plaintiff invoking the benefit of the JAS is not required to prove the second complaint is a “continuation” of the first. The two must assert fundamentally the same claim, but whether one suit is a “continuation” of another is the result of meeting the test of subsections, (a) and (b), not the cause.

. . . .

Both complaints allege identical historical facts and assert as the basis of Eads’s claim that the Hospital failed “to ensure that [Eads] has a safe means of egress.” The Court of Appeals nevertheless agreed with the Hospital that the IDOI complaint was not a continuation of the action filed in Superior Court because the former was a claim of medical malpractice and the latter asserted general negligence. The Court of Appeals reasoned that although the facts and parties in the two complaints were the same, “the actual claim—the source of the alleged liability—is wholly different.” Eads, 909 N.E.2d at 1014. We agree that a medical malpractice claim is in some respects, as the Court of Appeals put it, “wholly different” from a general negligence claim. But we do not agree that the differences between the two are the “source of the liability.” The MMA does not create a new cause of action. It merely requires that claims for medical malpractice that are recognized under tort law and applicable statutes be pursued through the procedures of the MMA. Chamberlain v. Walpole, 822 N.E.2d 959, 963 (Ind. 2005). The source of a medical malpractice claim remains basic tort law, which is the same as the source of a general negligence claim, and “[t]here are no more legal elements to the tort of doctor malpractice than there are to other negligence torts.” Burke, 520 N.E.2d at 441. Finally, the JAS requires that the second action be brought not later than the later of three years after the termination of the first action or the limitation period applicable to “the original action,” thus implying that there may be different limitation periods applicable to the two. That is in fact the case here, where the two year general personal injury period is not limited to the occurrence based period applicable to medical malpractice claims.

. . . .

Eads’s IDOI claim was submitted two weeks before the original action failed. The Hospital argues that Eads’s proposed IDOI complaint cannot be the continuation of a failed claim because the original action was still pending at the time she filed the IDOI complaint. Although the more common scenario involves the filing of a new action after a claim has failed, the statute does not require that sequence. . . . Given the language of the statute, the greater weight of the notice considerations supra, and the absence of bad faith on Eads’s part discussed supra, we agree with Torres as to the handling of the procedural sequence here. Eads’s IDOI claim, though brought before the failure of the IDOI claim, can be considered a continuation of the original claim.

The trial court’s grant of summary judgment is reversed.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

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