Walgreen Co. v. Abigail E. Hinchy

• Court: Indiana Court of Appeals
• Decided: January 15, 2015
• Docket: 49A02-1311-CT-950
• Status: Published

Opinion

Jan 15 2015, 8:34 am FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:

THOMAS E. WHEELER II NEAL F. EGGESON, JR. MAGGIE L. SMITH Eggeson Appellate Services Frost Brown Todd LLC Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

WALGREEN CO., ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1311-CT-950 ) ABIGAIL E. HINCHY, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable David J. Dreyer, Judge Cause No. 49D10-1108-CT-29165

January 15, 2015

OPINION ON REHEARING—FOR PUBLICATION

BAKER, Judge Walgreen has filed a petition for rehearing, raising several claims of error in our

original opinion. We grant the petition so that we may address Walgreen’s arguments.

In our original opinion, we held that Hinchy had raised a viable claim of

negligence/professional malpractice against Walgreen. Walgreen Co. v. Hinchy, No.

49A02-1311-CT-950 (Ind. Ct. App. Nov. 14, 2014). Walgreen argues that Hinchy has

never raised that claim directly against Walgreen. We disagree.

Initially, we note that Indiana is a notice pleading state, meaning that what is

required to state a claim is “pleading the operative facts so as to place the defendant on

notice as to the evidence to be presented at trial.” Noblesville Redevelopment Comm’n v.

Noblesville Assocs. Ltd. P’ship, 674 N.E.2d 558, 563 (Ind. 1996). Therefore, that

Hinchy’s complaint did not include an explicit claim of professional malpractice against

Walgreen is of no moment. All operative facts supporting such a claim were included in

the complaint.

Furthermore, Hinchy did explicitly raise this precise claim, with supporting

argument and evidence, at multiple stages of the litigation. First, she explicitly briefed the

issue on summary judgment. Second, the parties extensively argued this issue before the

trial court. Third, the issue was argued on the directed verdict motion. Fourth, Hinchy

filed multiple proposed final jury instructions directly related to this claim of professional

malpractice against Walgreen. Finally, Hinchy explicitly referred to this claim in her

Appellee’s Brief in this appeal. Never once, until now, has Walgreen argued that the claim

2 was not properly pleaded. It is far too late in this stage of litigation to raise a procedural

argument for the first time. Consequently, this claim of error must fail.

Next, Walgreen argues that our assertion that it had failed to appeal the denial of

summary judgment and directed verdict on the claim of invasion of privacy through public

disclosure of private facts was erroneous. Again, we disagree.

In its brief, Walgreen argued only that the trial court’s rulings regarding the jury

instructions relating to this claim were erroneous. Walgreen contends that we are too

focused on the headings in its brief, but Walgreen is incorrect. Regardless of the headings,

it is readily apparent that the substance of its argument relates to the trial court’s rulings on

jury instructions rather than to the rulings regarding the tort itself. It is for Walgreen to

make and organize its own appellate argument, and we will not infer a broader argument

than it actually made. Walgreen’s vague assertions in its brief are not enough to rise to the

level of cogent argument. Therefore, this claim of error must fail.

To the extent that we erred in stating that Withers learned Hinchy’s social security

number, we note for the record that it may not have occurred. It is not entirely clear whether

that did or did not happen, but either way, it does not change the ultimate outcome of this

case.

Finally, Walgreen argues that we erred in stating that Davion Peterson shared with

others the information about Hinchy that he learned from Withers. There is evidence in

the record, however, that Peterson did share certain information with three other

3 individuals. Tr. 566-67. While the evidence can be interpreted in different ways, we will

not reweigh it on appeal. Therefore, this claim of error must fail.

The result we reached in our original opinion stands.

KIRSCH, J., and ROBB, J., concur.