*1 Whipple Dickey 1221; left in the 420 N.E2d v. 95, 2d where a teflon mesh was (1980),Ind.App., 401N.E.2d787. patient's abdomen. The trial court directed a verdict for the defendant doctor. The Pursuant to 16-9.5-9-9, Ind.Code appellate reversed, court holding that a expert opinion reached the Medical Re- though submissible case existed even there view Panel presented was in support of had expert been no direct testimony sup- defendant's summary judgment motion for porting plaintiff's case. as sup- evidence does not "[the The trial court finding error in port the conclusion that defendant failed to genuine that there was no issue fact to applicable meet the standard of care as be submitted for trial. The inference of charged in the initial complaint." Record duty breach of opinion confronts medical I 25. am unable agree to with the duty. no breach of requires Justice thus a majority plaintiff's response adequate- trial, say This is not point that at this ly specific set forth facts to genuine show a to justice requires a plaintiff. verdict for the issue for trial. The Petition granted, to transfer is I would affirm the entry trial court's opinion of the vacated, Second District is summary judgment. judgment reversed, of the trial court is and the cause is remanded with instruc- deny
tions to the defendant doctor's motion
for summary judgment.
SHEPARD, C.J., and GIVAN and
PIVARNIK, JJ., concur. separate dissents with KIMBERLING, Appellant, Michael A.
opinion. v. dissenting. DICKSON,Justice, Indiana, Appellee. STATE of 56(E) Trial Rule following includes the explicit requirement: No. 45S03-8808-CR-354. * * * When a summary judg- motion for Supreme Court of Indiana. ment is supported provided made and rule,
in this party may an adverse March 1988. allegations rest the mere or denials pleading, of his response, by but his affi- provided
davits or as otherwise in this
rule, must specific set forth facts show- genuine that there is a issue for trial.
If he does respond, summary judg- not so if appropriate, shall be entered * * * against him.
A party opposing summary judgment is
"obliged disgorge sufficient evidence" to genuine
show the existence of a triable (1981),
issue. Shideler Dwyer v. 275 Ind. 281; Pon American Airways,
World Inc. v. Local Readers Ser
vice, (1968), Inc. App. 143 Ind. 240 N.E.
2d party opposing 552. The summary specific must "come forth with showing
facts genuine there issue Ind., trial." Bitzegaio Criss v. *2 agent's
After the oral advisement, appel- lant was sent a letter which stated: "Unless full payment $5,633,12 of [sic]
is received March 1985, your ac- count will be turned over prosecut- to the ing attorney legal for action." payment was not made appellant was subsequently convicted of check decep- in tion connection with check number 1134. The majority opinion of the Court of Ap- peals position takes the that the above let- ter did not fulfill the statutory requirement of notice as set forth in Ind.Code 35-48-5-5(e), which reads as follows: Kupsis, Schererville, Visvaldis P. ap- for "It a defense (a) under subsection if pellant. person who: Pearson, Linley Gen., E. Atty. Michael (1) has an account with a credit institu- Worden, Gene Deputy Gen., Atty. India- tion but does not have sufficient funds napolis, appellee. for account; in that check, draft, issues or delivers a ON CRIMINALPETITION payment order for on that credit insti- FOR TRANSFER tution; pays the payee due, or holder the amount GIVAN, Justice. together protest with fees any ser- published In opinion, Kimberling v. charge, vice fee or may which not exceed (1987), App., State Ind. greater of ($15) fifteen dollars or five appellant's reversed con- percent (5%)(but not more than two hun- of Deception viction and ordered en- dred fifty ($250)) dollars try of a acquittal. of due, may charged be payee Appellant facts are: operated sever- holder, days after the date al businesses in Lake County. January On mailing by of payee or holder of 24, 1985, he issued a check in the amount person notice check, draft, to the that the $1,971 pay goods for previously deliv- or order has paid by not been the credit ered by City check, Sales. That number institution. Notice sent in the manner 1184, was appellant's drawn on one of 28-2-8-1(c) set in busi- forth IC constitutes ness accounts with Citizens Federal Sav- check, draft, to the that the ings. Before he issued the order has not been phoned inquire the bank to about his bal- payee institution. The or holder of a ance 'check, draft, or order that has been dis- $4,572.97. and was told that he had However, when the presented, check was honored incurs no civil or criminal liabili- issued, six after it was it was ty sending re- for notice under this subsec- "UNCOLL,." turned the bank marked tion." agent An payee assigned The Court majority opinion task collecting quotes the amount of the check. from Suits v. Ind.App., State agent arranged 451 payment N.E.2d schedule as follows: appellant. with Two other checks which "A construction which includes notice had been dishonored were by appel- part of the defense place con- lant; however, check number 1134 re- trol of the availability of the defense unpaid. payee's agent mained notified hands of the or holder. The payment was not made holder or totally deprive could promptly they would seek prosecu- defendant of the defense of tion. intentionally notice of non- thereby nullifying legis- DeBRULER, J., concurs with lature's intent that separate opinion such a defense can SHEPARD, C.J., Thus,
and should concurs for exist. only expressed reasons inter- therein. pretation gives viability to legis- expressed lature's intent that a defense DICKSON, J., concurs in both shall exist is the construction that the DeBRULER's, GIVAN's and JJ., timely payment defense is after the state *3 opinions. proven has the mailing element of DeBRULER, Justice, concurring. of nonpayment." deception issuing is or delivering We do not interpret the statute as intend- an immediately payable check partic- with a up mailing to set the of notice that the knowledge time, namely the ular instrument paid has not been as the only the check will paid not be upon present- by method which a defendant could receive knowledge is not shared with notice of such accept default. We Judge payee. 35-43-5-5(a) (£). 1.C. and dissenting opinion Staton's in this case as a elements of (1) the crime knowing are logical approach more to the situation. It intentional, (2) issuing (3) delivering, an is clear from the facts in this case that immediately payable instrument, (4) appellant was notified of the nonpayment knowledge. unshared prosecution by letter, person, a should statement, prima his make bank facie case (1)
payee's payment schedule, venue, (2) and a identity, (3) threat of a knowing or legal action. issuing intentional or delivering, (4) an im- mediately payable instrument, (5) un- We view the legislature intent of the shared knowledge. The crime would be passing giving the statute an complete upon the delivery. defense of (10) days The Court of "after the date of by majority find an additional element of holder of the crime in notice to the 85-48-5-5(e). draft, or 1.C. This additional paid order has not element been appears to be a failure of the defendant to giving (10) institution" as a ten make repre- due as day grace period following type of no- sented the check gaining after knowl- payor tice which a would usually receive in edge that the check was not the course of business. We do not view bank. There is no such element to be language of the statute as an attempt By found there. express its wording, Sec. up to set extremely an technical and exclu- 5(e) defines a defense to the crime of check sive method of notification. We see no deception. The defense is available to a reason for such a strict interpretation. We defined defendants, class of who in the the language view of the statute setting absence of this defense appropriate- up a method payor which a could avoid ly guilty be found of the crime of check prosecution by making payment within ten deception. 5(e) The Sec. defense is in es- (10) days of notification of nonpayment. upon proof sence made out by the defend- gravamen of the situation is ant that he the amount due payor, receiving after day reasonable and within ten period which commenced positive notification nonpayment, non-payment when written notice of fails to bank make was sent out to him. Consequently, restitution within ten guilt the evidence of was not subjects insufficient possible himself to prose- because of the prosecution failure cution. He cannot invoke the defense prove notice of non-payment. which was available to him within ten days under the terms of the statute. SHEPARD, C.J., opinion vacated, concur. and the trial court is affirmed.
PIVARNIK, J., concurs.