Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                      Aug 09 2013, 9:21 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS:                      ATTORNEY FOR APPELLEES:

KIRK A. PINKERTON                              SCOTT E. YAHNE
SCOTT B. COCKRUM                               Yahne Law, P.C.
Hinshaw & Culbertson LLP                       Munster, Indiana
Schererville, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

NEPHROLOGY SPECIALISTS, P.C.,                   )
SHAHABUL ARFEEN, M.D., SANJEEV                  )
RASTOGI, M.D., MAHER AJAM, M.D. and             )
RAIED ABDULLAH, M.D.,                           )
                                                )
      Appellants/Defendants/Counter Plaintiffs, )
                                                )
             vs.                                ) No. 45A03-1212-CT-535
                                                )
ASIM CHUGHTAI, M.D., RAFAEL FLETES,             )
M.D., KUPUSAMY UMAPATHY, M.D.,                  )
A.J. PAMPALONE, D.O., BRYAN WALDO, M.D., )
STEVEN MISCHEL, D.O., MARISELA VARELA, )
M.D., DAVID ASHBACH, M.D., and KRISTOPH )
GIRICZ, M.D.                                    )
                                                )
      Appellees/Plaintiffs/Counter Defendants,  )
                                                )
                                                )
NEPHROLOGY SPECIALISTS, P.C.,                   )
                                                )
      Third Party Plaintiff,                    )
                                                )
             vs.                                )
NORTHWEST INDIANA NEPHROLOGY, P.C., )
DAN ZIMMERMAN, and JAYNE LLOYD,                 )
                                                )
       Third Party Defendants.                          )



                      APPEAL FROM THE LAKE SUPERIOR COURT
                      The Honorable Michael N. Pagano, Special Judge
                              Cause No. 45D09-1206-CT-11




                                       August 9, 2013



      MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION




ROBB, Chief Judge

       Appellees (the “Departing Physicians”) petition this court for rehearing of our

decision dated June 27, 2013. In that opinion, we held that relevant board meetings and

bylaw amendments resulted in non-compete provisions continuing in certain employment

contracts, and reversed the trial court. We grant the Departing Physicians’ petition for the

limited purpose of clarifying our reference to testimony from the drafting attorney, and affirm

our opinion in all other respects.

       The Departing Physicians argue that we impermissibly reweighed evidence in our

opinion. They argue that our reference to testimony from drafting attorney Seng, regarding

intent behind the board resolution at issue, indicates that the document was inherently unclear

and that we did not provide “the requisite deference to the Trial Court’s interpretation of the

evidence.” Appellees’ Petition for Rehearing at 7. To the contrary, attorney Seng’s


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testimony did not decide the issue of intent, nor did our reference to it indicate a belief that

the document was inherently unclear. Rather, we concluded that the intent was to affirm the

then-current bylaws, including all recent amendments, based on the language of the

document. We cited to attorney Seng’s testimony as further support for our conclusion, not

as evidence on which we based our conclusion.

       We have considered the Departing Physicians’ other arguments in the petition for

rehearing, and find them to be merely a reiteration of arguments presented in their original

brief. We therefore clarify that reference to attorney Seng’s testimony did not indicate that

the document was inherently unclear, and affirm our opinion in all other respects.

FRIEDLANDER, J., and CRONE, J., concur.




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