Elizabeth Roumbos v. Samuel G. Vazanellis and Thiros and Stracci, PC , 2017 Ind. App. LEXIS 248 ( 2017 )

FILED
OPINION ON REHEARING Jun 13 2017, 6:15 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Mark S. Pantello David C. Jensen
Benson, Pantello, Morris, James & Robert J. Feldt
Logan, LLP Eichhorn & Eichhorn, LLP
Fort Wayne, Indiana Hammond, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Elizabeth Roumbos, June 13, 2017
Appellants-Plaintiff, Court of Appeals Case No.
45A03-1606-CT-1424
Appeal from the Lake Superior
v. Court
The Honorable John M. Sedia,
Judge
Samuel G. Vazanellis and
Thiros and Stracci, PC, Trial Court Cause No.
45D01-1501-CT-2
Appellees-Defendants
Najam, Judge
[1] Samuel Vazanellis and law firm Thiros and Stracci, PC, (collectively, “Law
Firm”), request rehearing, asking us to reconsider our reversal of the trial
court’s grant of summary judgment in their favor. Law Firm specifically takes
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issue with our rejection of their argument that Roumbos’ testimony was
equivocal. We stated in our original opinion:
In its brief on appeal, the law firm asserts that Roumbos was
equivocal about the cause of her fall in her deposition testimony.
We cannot agree. It is clear from the totality of her testimony
that at all times Roumbos identified the wires as the cause of her
fall. See Appellant’s App. Vol. II at 80-83. Accordingly, we
reject the law firm’s argument that Roumbos cannot contradict
herself to create a genuine question of material fact as well as the
law firm’s argument that Roumbos’ claim against the hospital
was based exclusively on the fact of the fall.
Roumbos v. Vazanellis, et. al., 71 N.E.3d 64, 65 n.1 (Ind. Ct. App. 2017). In its
petition for rehearing and subsequent notice of additional authority, Law Firm
likens the facts in this case to those in Central Indiana Podiatry, P.C. v. Barnes &
Thornburg, LLP, 71 N.E.3d 92 (Ind. Ct. App. 2017). We grant rehearing to
distinguish the facts of this case from those in Podiatry and its predecessor,
Gaboury v. Ireland Road Grace Brethren, Inc., et. al., 446 N.E.2d 1310 (Ind. 1983).
[2] Law Firm argues Roumbos made contradictory statements in two different
depositions, and thus summary judgment was proper under Podiatry and its
predecessor, Gaboury. However, the statements Law Firm cites are not
contradictory and thus Podiatry and Gaboury do not control. In Roumbos’ first
deposition, the following exchange occurred:
Q: And do you know how you tripped? What foot came in
contact with these wires?
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[Roumbos]: That, I can’t tell you.
*****
Q: And you don’t know what foot came in contact with
what?
[Roumbos]: No.
(Appellant’s App. Vol II at 81-2.) In her second deposition, Roumbos testified:
Q. . . . had you walked over [the wires] to get to the table to pour
the water?
A. Yes, I did.
Q. Okay. And did you step over them?
A. No.
Q. You just walked over them?
A. Uh-huh.
*****
Q. Okay. Well, you stepped on them, or you stepped over them,
one or the other, didn't you?
A. If I step[ped] on [them], I could have fell [sic].
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***
Q. And you agree with me that if you look[ed] down, you would
have seen [the wires], wouldn't you?
A. Probably.
Q. . . . And when you turned around, you didn't look down,
though, did you?
A. No.
***
Q. But there was no reason why you couldn't look around and
see what was on the floor, was there?
A. No.
(Id. at 93-94, 96.)
[3] Roumbos’ answers are not contradictory because the questions were not the
same. In the first exchange, the questions pertain to which foot came into
contact with the wires causing Roumbos to fall, and the compound nature of
the first question makes it difficult to ascertain which question Roumbos
answered. The second exchange more explicitly questions Roumbos on the
details of the fall, but in it she is never asked to identify the foot that tripped. As
such, Roumbos did not contradict herself.
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[4] In contrast, the plaintiff in Podiatry, Miller, explicitly contradicted his earlier
testimony when he filed an affidavit in response to the defendant’s motion for
summary judgment:
Further, Miller relies heavily on his statements set forth in an
affidavit filed as part of the malpractice action. In the affidavit,
he emphasizes the importance the durational time limit played in
the Vogel Agreement, specifically that he thought Vogel would
perform surgeries with FASC as long as he practiced in the area.
Miller argues had he known Vogel could terminate his affiliation
with FASC under the original terms of the Vogel Agreement, he
would not have signed the Fee Release. However, in his
testimony as part of the Hamilton County Litigation, Miller
testified multiple times that he was not concerned about the time
frame in which Vogel would perform surgeries at FASC and had
not given the time frame much thought.
*****
Much of Miller’s argument on appeal is about the alleged
concealment of Vogel’s concerns about implementing the
Settlement Agreement resolving the federal litigation because
Vogel wanted a durational time limit on his ownership of FASC.
Miller’s position regarding his concern with a durational time
limit seems to change based on what would benefit him in a
particular case. The changing nature of Miller’s own testimony
cannot create a genuine issue of material fact to defeat B&T’s
motion for summary judgment, as the time frame and the
communication surrounding the Vogel Agreement and Vogel
Litigation seem to be the crux of Miller’s fraud allegations.
Podiatry, 71 N.E.3d at 96 (internal citations to the record omitted).
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[5] Similarly, in the seminal case regarding this issue, Gaboury, the same explicit
contradiction existed between the plaintiff’s statements in a deposition and his
averments in an affidavit in response to summary judgment. In that case,
Gaboury sued Ireland Road Grace Brethren after he hit a cable on its property
and was injured. In the deposition, Gaboury stated he knew where the road
ended, he knew a parking lot existed at the end of the road, and he intended to
turn around in the parking lot owned by Ireland Road; the only thing he
indicated he did not know was “whether a cable would be up[.]” Gaboury, 446
N.E.2d at 1312. However, in his affidavit in opposition to Ireland Road’s
motion for summary judgment, he stated:
4. That because of the lighting and the fact that the cable was in
no way highlighted, the plaintiff never saw the cable prior to the
accident and was never aware that the (sic) had entered the
property of the Ireland Road Grace Brethren, Inc.
*****
6. That the plaintiff knew that a parking lot of a church was at
the end of the road; however, he could not ascertain where the
end of the road was located.
Id. Our Indiana Supreme Court adopted a tenet of law long held in other
jurisdictions: “If a party who has been examined at length on deposition could
raise an issue of fact simply by submitting an affidavit contradicting his own
prior testimony, this would greatly diminish the utility of summary judgment as
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a procedure for screening out sham issues of fact.” Id. at 1314 (quoting Perma
Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)).
[6] Here, the compound nature of the question asked in the first deposition makes
it difficult to determine which question Roumbos answered. Further, the first
question asked was not specific and the second involved the foot that tripped
over the wire. In the second deposition, the questions were more nuanced, and
thus Roumbos’ answers were more concise. The questions in the second
deposition did not involve the identification of the foot on which Roumbos
tripped. The facts in this case are strikingly different than those in Podiatry and
Gaboury, as in those cases the two statements at issue were unquestionably
contradictory, and in this case they are decidedly less so.
[7] We grant rehearing to clarify the distinction between Podiatry and Gaboury and
the facts of this case. We affirm our original opinion in all respects.
Bailey, J., and May, J., concur.
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