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
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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
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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.
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