                                                                               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


      Court of Appeals of Indiana | Opinion on Rehearing 45A03-1606-CT-1424 | June 13, 2017        Page 1 of 7
      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?



      Court of Appeals of Indiana | Opinion on Rehearing 45A03-1606-CT-1424 | June 13, 2017   Page 2 of 7
        [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].



Court of Appeals of Indiana | Opinion on Rehearing 45A03-1606-CT-1424 | June 13, 2017   Page 3 of 7
                                                      ***


              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.



      Court of Appeals of Indiana | Opinion on Rehearing 45A03-1606-CT-1424 | June 13, 2017   Page 4 of 7
[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).




      Court of Appeals of Indiana | Opinion on Rehearing 45A03-1606-CT-1424 | June 13, 2017   Page 5 of 7
[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




      Court of Appeals of Indiana | Opinion on Rehearing 45A03-1606-CT-1424 | June 13, 2017   Page 6 of 7
      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.




      Court of Appeals of Indiana | Opinion on Rehearing 45A03-1606-CT-1424 | June 13, 2017   Page 7 of 7
