MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any
                                                                    Dec 31 2019, 8:58 am
court except for the purpose of establishing
the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Heather A. McCarthy                                      Susan K. Swing
Anthony DeBonis, Jr. & Associates                        Johnson & Bell, P.C.
Attorneys At Law, LLC                                    Crown Point, Indiana
Hobart, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kathleen Alexander,                                      December 31, 2019
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         19A-CT-1556
        v.                                               Appeal from the Lake Superior
                                                         Court
Damasius, Inc. d/b/a Vyto’s                              The Honorable Bruce D. Parent,
Pharmacy, Traci Vrehas, and                              Judge
Suzanne Cantu,                                           Trial Court Cause No.
Appellees-Defendants.                                    45D11-1710-CT-190




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-1556 | December 31, 2019            Page 1 of 9
[1]   Kathleen Alexander appeals the trial court’s denial of her motion to amend her

      complaint. We affirm.


                                      Facts and Procedural History

      On October 24, 2017, Alexander filed a complaint against Damasius Inc. d/b/a

      Vyto’s Pharmacy (“Damasius”), Traci Vrehas, and Suzanne Cantu (Damasius,

      Vrehas, and Cantu, collectively, the “Defendants”). Under Count I,

      negligence, she alleged her physician, Dr. Okechi Nwabara “prescribed

      telephonically a drug known as ‘Pravastatin,’” she “took the above-mentioned

      prescription to” Damasius to be filled, and Vrehas, a pharmacist, negligently

      prepared her prescription on July 12, 2016, giving her Paroxetine, a serotonin

      reuptake inhibitor, instead of Pravastatin, a medicine to treat high cholesterol.

      Appellant’s Appendix Volume II at 12. She alleged she continued to take the

      medicine until about July 20, 2016, when she discovered the improper filling of

      the prescription after being disoriented for several days. She asserted that she

      suffered confusion, despair, severe anxiety, listlessness, and dizziness resulting

      in a fall at her home that injured her lumber back area, right shoulder, and left

      knee as a result of ingesting Paroxetine. She also asserted that the illness she

      was supposed to be treating with medicine prescribed by Dr. Nwabara

      continued to worsen as a result of the delay in obtaining the correct medicine,

      she incurred medical and hospital expenses associated with treatment and

      would probably incur more in the future, and suffered “an inability to work, as

      well as other consequential damages.” Id. at 14.



      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1556 | December 31, 2019   Page 2 of 9
[2]   Under Count II, “spoliation of evidence,” she alleged she contacted Damasius

      to inform it of the error in filling the prescription and that Cantu, a pharmacist,

      altered the prescription record to show that the proper prescription of

      Pravastatin was dispensed to her on July 12, 2016. Id. at 15 (capitalization

      omitted). She also alleged Cantu directed her to immediately bring the bottle

      dispensed on July 12, 2016, to the pharmacy or that Damasius would arrange

      to pick up the bottle from her home.


[3]   On January 30, 2018, the Defendants filed an answer admitting that Vrehas was

      a pharmacist employed by Damasius. On October 4, 2018, the court entered a

      case management order setting forth various deadlines including:


              1. Any Motions to join additional parties and/or amend the
              pleadings must be filed by Jan 30, 2019.

              2. Each attorney is Ordered to serve all opposing counsel herein
              with a list of contentions of fact and law, the names and address
              of witnesses, and photocopies of all exhibits reasonably expected
              to be used at trial within thirty (30) days. Counsel are Ordered to
              supplement the lists and copies as other witnesses or exhibits
              become known. Witnesses and exhibits not disclosed at least
              thirty (30) days before the discovery deadline may not be used at
              trial without leave of Court which will be granted only upon a
              showing of good cause for the failure to disclose.

                                                   *****

              4. Counsel are Ordered to complete all discovery by Dec 30,
              2019.


      Id. at 41.


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1556 | December 31, 2019   Page 3 of 9
[4]   On February 6, 2019, Alexander filed a request for production and a verified

      motion to compel the Defendants to produce all of the pharmacy’s written

      policies regarding dispensing medications, advising patients, maintaining a

      patient profile, and OBRA compliance.


[5]   On February 13, 2019, the parties filed a stipulation which stated that

      Alexander “by counsel, and pursuant to Ind. Trial Rule 41, stipulates to the

      dismissal of Count II of the Plaintiff’s Complaint with prejudice.” 1 Id. at 82.

      On February 14, 2019, the court ordered the dismissal of Count II, and

      Alexander filed a motion to withdraw her motion to compel and asserted that

      “[t]he parties have come to an agreement regarding the pending discovery

      issue.” Id. at 88.


[6]   On February 26, 2019, the court entered an Order of Administration which

      indicated that the matter had a jury trial scheduled after December 31, 2019,

      and stated in part:


               To reorganize the docket in the Court, it is hereby Ordered:

               The Jury trial and the final pre-trial conference in the matter are
               VACATED.

               All previous orders of this Court related to deadlines for filing of
               a pre-[trial] order, the exchange of contentions, the filing of




      1
       The document containing the stipulation was titled: “Stipulation for Partial Dismissal of Count II of
      Plaintiff’s Complaint.” Appellant’s Appendix Volume II at 82 (capitalization omitted).

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1556 | December 31, 2019                 Page 4 of 9
              motions in limine, and the filing of proposed jury instructions are
              similarly VACATED.

              All Discovery-related deadlines shall remain intact.

              Unless there is presently a status conference in the matter, the
              attorney for the Plaintiff is instructed to coordinate a
              teleconference for the purpose of resetting the trial date, if
              appropriate, and/or making alterations to the present deadlines.
              In the latter instance, Plaintiff will file a proposed order setting a
              teleconference; Plaintiff will initiate the teleconference, unless
              otherwise agreed.


      Id. at 92.


[7]   On March 22, 2019, Alexander filed a Motion for Leave to File First Amended

      Complaint for Damages, which alleged that discovery was open until

      December 30, 2019, that the action was not on the court’s trial calendar, and

      that allowing Alexander to file an amended complaint would not cause any

      undue delay or unduly prejudice any party. The amended complaint attached

      to the motion added Count II, gross negligence, Count III, respondeat superior,

      and Count IV, negligent training, supervision, and retention. On April 5, 2019,

      the Defendants filed a response in opposition to Alexander’s motion.


[8]   On April 9, 2019, the court denied Alexander’s motion and stated it had

      previously set a deadline to amend the pleadings, which had lapsed, Alexander

      failed to show good cause why an amendment was necessary, the Defendants

      would be prejudiced by having to start over seventeen months into the

      discovery process, and Alexander failed to meet her burden.


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1556 | December 31, 2019   Page 5 of 9
[9]    On April 11, 2019, Alexander filed a motion to reconsider in which she asserted

       she deposed Cantu and Vrehas on December 13, 2018, and that the policy

       handbook was referenced during the depositions in regard to internal standards.

       She also asserted the court denied her motion five days after the Defendants

       filed a response, and Lake County Local Rule 45-TR7-4 provided her a ten-day

       period to file a reply. On April 26, 2019, the Defendants filed a response. On

       May 2, 2019, Alexander filed a reply in support of her motion to reconsider.

       On May 14, 2019, the court entered an order denying the motion to reconsider

       and stating Alexander had no right to a reply pursuant to “Local Rule 4, as

       such a right is reserved for motions filed pursuant to Trial Rules 12 and 56.” Id.

       at 153.


[10]   On May 16, 2019, Alexander filed a motion for certification of the April 9, 2019

       order. On June 7, 2019, the court entered an order which stated that the court

       re-read each motion and its own prior orders, determined Alexander’s motion

       correctly pointed out that the court misapplied the Trial Rules and/or Local

       Rules, found “[t]he mistake of this judicial officer aside, nowhere does

       Alexander address the issue that Judge Schneider set a deadline by which all

       parties could amend their pleadings, and that deadline had passed at the time of

       her filing,” concluded Alexander failed to carry her burden of demonstrating

       good cause for the proposed amendment, and certified the April 9, 2019 order

       for interlocutory appeal. Id. at 163.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1556 | December 31, 2019   Page 6 of 9
                                                   Discussion

[11]   Alexander argues that the trial court abused its discretion by misapplying Local

       Rule 45-TR7-4 and denying her motion to amend her complaint. The

       Defendants argue that Alexander failed to file her amendment within the

       deadline, they did not hinder the prosecution of the case, allowing Alexander to

       assert new theories of liability would prejudice them, and allowing such

       gamesmanship would permit Alexander to have additional bites at the apple.


[12]   Indiana Trial Rule 15(A) provides that “[a] party may amend his pleading once

       as a matter of course at any time before a responsive pleading is served or, if the

       pleading is one to which no responsive pleading is permitted, and the action has

       not been placed upon the trial calendar, he may so amend it at any time within

       thirty [30] days after it is served” and thereafter “a party may amend his

       pleading only by leave of court or by written consent of the adverse party” and

       “leave shall be given when justice so requires.” Amendments should be

       liberally allowed under Trial Rule 15(A), while giving proper regard for any

       prejudice to the nonmoving party. United of Omaha v. Hieber, 653 N.E.2d 83, 87

       (Ind. Ct. App. 1995) (citing Templin v. Fobes, 617 N.E.2d 541, 543 (Ind. 1993)),

       reh’g denied, trans. denied. Although amendments to pleadings are to be liberally

       allowed, the trial court retains broad discretion in granting or denying

       amendments. Hilliard v. Jacobs, 927 N.E.2d 393, 398 (Ind. Ct. App. 2010), trans.

       denied. We will reverse upon a showing of only an abuse of that discretion. Id.


[13]   An abuse of discretion may occur if the trial court’s decision is clearly against

       the logic and effect of the facts and circumstances before the court, or if the
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1556 | December 31, 2019   Page 7 of 9
       court has misinterpreted the law. Id. We consider whether a trial court’s ruling

       on a motion to amend is an abuse of discretion by evaluating a number of

       factors, including “undue delay, bad faith, or dilatory motive on the part of the

       movant, repeated failure to cure deficiency by amendment previously allowed,

       undue prejudice to the opposing party by virtue of the amendment, and futility

       of the amendment.” Id. (quoting Palacios v. Kline, 566 N.E.2d 573, 575 (Ind. Ct.

       App. 1991)). In reviewing a discretionary motion, we generally affirm if there

       is any rational basis for the trial court action. Palacios, 566 N.E.2d at 575. Trial

       court discretion is permitted because of the court’s strategic advantage in

       balancing considerations for trial. Id.


[14]   To the extent Alexander asserts that the trial court misapplied Local Rule 45-

       TR7-4, which provides for a party to file a reply, 2 we observe that the court

       noted in its June 7, 2019 order that it had misapplied the Local Rule, that it

       read “everything for a third time,” and concluded that Alexander failed to carry

       her burden of demonstrating good cause for the proposed amendment.




       2
           Lake County Local Rule 45-TR7-4 provides:

                 All motions filed pursuant to Trial Rules 12 and 56 shall be accompanied by a separate
                 supporting brief. An adverse party shall have thirty (30) days after service of the initial brief
                 in which to serve and file an answer brief, and the moving party shall have ten (10) days
                 after service of the answer brief in which to serve and file a reply brief. With regard to all
                 other motions or matters submitted to the court, and so long as consistent with the Indiana
                 Rules of Procedure, an adverse party wishing to respond shall do so within fifteen (15) days
                 of service. The moving party shall have ten (10) days after service of the response within
                 which to reply. Each motion shall be separate, while alternative motions filed together
                 shall each be identified on the caption. Failure to file an answer brief or reply brief within
                 the time prescribed shall be deemed a waiver of the right thereto and shall subject the
                 motion to summary ruling.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1556 | December 31, 2019                       Page 8 of 9
       Appellant’s Appendix Volume II at 164. Under these circumstances, we cannot

       say that the trial court failed to consider Alexander’s arguments.


[15]   With respect to Alexander’s assertion that the court’s February 26, 2019 order

       “vacated all previous trial orders and only maintained the prior Judge’s

       discovery-related deadlines,” Appellant’s Brief at 24, we note that the court’s

       February 26, 2019 order did not vacate the prior order setting forth a deadline

       of January 30, 2019, for amending the pleadings, and Alexander did not object

       to the order.


[16]   The record reveals that the court entered a case management order on October

       4, 2018, which set forth a deadline of January 30, 2019, for amending the

       pleadings. Alexander filed a motion for leave to file an amended complaint on

       March 22, 2019, which was seven weeks after the deadline and more than one

       year and four months after her initial complaint was filed. Defendants’

       assertion of prejudice due to Alexander’s allegations of new theories of liability

       was apparently well-taken by the trial court, and we find no abuse of discretion.

       We cannot say that Alexander has demonstrated that reversal is warranted.


[17]   For the foregoing reasons, we affirm the trial court’s order.


[18]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1556 | December 31, 2019   Page 9 of 9
