The court’s third longest tenured judge, the highly respected Hon. Ezra Friedlander, authored the unanimous decision. Judge Friedlander was joined by the court’s second longest tenured jurist – the Hon. Edward Najam – and Judge Cale Bradford, who authored a short concurring opinion to emphasize a couple important points of the decision. The concurring opinion is itself an almost unheard of occurrence in not-for-publication (NFP) decisions with fewer than 2% of Indiana NFP decisions since 2006 including a written concurring opinion and less than 0.04% concurring in entirety. Yet, even more rare is a concurrence in which the sole purpose is to emphasize the value of the majority’s holding. After an exhaustive search your author was not able to uncover a single instance of such a concurring opinion prior to the Urbina case. One notable commentator voiced the opinion that this decision should be added to the "running list of cases designated as NFP that perhaps should not have been."
The court summarized the issues as follows:
(1) Taking all factual allegations in the Urbinas’ complaint as true and drawing all reasonable inferences in their favor for purposes of a motion to dismiss under T.R. 12(B)(6), did the trial court err in concluding that the Urbinas would not be able to establish under any set of facts admissible under the allegations of their complaint that ABLA breached a duty to divulge to the Urbinas the substance of the phone call advising ABLA that the baby might be suffering from chemical withdrawal?
(2) Did the Urbinas contractually release any claim of breach of fiduciary duty based upon the operative facts in this case?
On all three issues, the court found in favor of the Urbinas. The decision reinstated the Urbinas' complaint that had been dismissed in its entirety without written opinion by the trial court. This means that the Court of Appeals found that (1) the adoption agency had a duty to disclose information regarding the birthmother’s use of methadone while the child was in utero, (2) an exculpatory clause that attempted to release the adoption agency and its employees from liability for “unknowns” in the adoption process did not apply to information within the agency’s actual possession, and (3) that the Urbinas have on its face a potentially viable claim for intentional infliction of emotional distress.
In his concurring opinion, Judge Bradford thought it important to emphasize “the most significant holding of the case.” He wrote,
I agree that the [Agency] Agreement required ABLA to disclose to the Urbinas any relevant information gathered during the adoption process. In short, you get it–you pass it on. I also agree that the release in the Agreement does not cover nondisclosure and that it shields ABLA only from liability for any information that turns out to be incorrect. Quite simply, disclosure of incorrect information and nondisclosure are just not the same thing. Were we to accept ABLA’s argument on this point, it would render the disclosure requirement meaningless.
The attorneys here at Pavlack Law who have represented the Urbinas the whole way through the case from the trial court and on appeal are quite pleased by the extremely well written and thoughtful opinion from the Court of Appeals and are excited to proceed in seeking justice for the Urbinas.
As this opinion is only a day old, there is still the possibility that A Bond of Life Adoptions, LLC and the other defendants will either seek rehearing on the matter or transfer to the Indiana Supreme Court. Further, it is still possible for either party to seek publication of this decision to convert it into precedent that can aid others.
One of the Urbinas’ attorneys, Pavlack Law associate attorney Colin E. Flora, expressed great pleasure with the decision. He stated, “It is great to see a tremendous amount of work payoff with a fantastic decision.” To Mr. Flora the best part of the decision was that the court ultimately made its decision based upon the lead arguments put forth in the briefs. He noted that when a case is on appeal and you must argue that the previous court got it wrong you are obligated to put forth every possible argument as to why the previous court got it wrong. Thus, where your primary argument wins the day it is a great feeling because at no point has the court had to say any part of your argument was wrong. The court did not even have to consider the other arguments.
With a decision now in the books the Urbinas’ attorneys can now turn their attention back to trying to bring the case before a jury and seek a just and fair result.
Urbina v. A Bond of Life Adoptions, LLC, No. 06A01-1210-CT-464, 985 N.E.2d 1153 (table), 2013 WL 1788250 (Ind. Ct. App. Apr. 25, 2013).
Indiana Appellate Rule 65 – governing the use and procedures regarding not-for-publication memoranda decisions.
For thoughtful and in depth discussions of the role of memoranda decisions in the law consider: Thomas L. Hudson, Proposed: Make Memoranda Decisions Available Online and Allow Them to Be Cited as Persuasive Authority, Arizona Attorney, June 2006, 14; Hon. Donn G. Kessler and Thomas L. Hudson, The “Secret” History of Memoranda Decisions: A Rule’s Evolution, Arizona Attorney, June 2006, 10 (describing the history of citation rules and recent changes among states and federal courts).
- Ind. Decisions – "COA Sides with Canadian Couple Who Sued Adoption Agency over Drug-Addicted Baby", The Indiana Law Blog (Apr. 26, 2013).