OLIVARES v. PERFORMANCE CONTRACTING INC (2025)

MEMORANDUM DECISION

[1] Jose F. Olivares appeals the trial court's entry of summary judgment for Performance Contracting, Inc. (“PCI”) and Dr. Thomas V. Graber.¹ Olivares raises five issues for our review, which we consolidate and restate as the following two issues:

1. Whether the trial court erred when it entered summary judgment.

2. Whether PCI and Dr. Graber are entitled to awards for reasonable appellate costs and fees.

[2] We affirm the trial court's entry of summary judgment and remand for the trial court to determine awards for reasonable appellate costs and fees for PCI and Dr. Graber.

Facts and Procedural History

[3] Olivares is a Michigan resident and, in 1998, worked for a company called Performance Abatement Services (“PAS”) in Lansing, Michigan. Charles Williams was a Worker's Compensation Administrator for PAS at that time. On May 5, 1998, Olivares fell off of a ladder and suffered an injury to his shoulder “arising out of and in the course of [his] employment” with PAS. Appellant's App. Vol. 2, p. 35.² On June 21, Dr. Graber performed surgery on Olivares's shoulder. Thereafter, Olivares sought and received worker's compensation benefits from the State of Michigan. However, those benefits were terminated when Michigan determined that Olivares had voluntarily refused to return to work.

[4] Dissatisfied with Michigan's limitation of the remedy for his shoulder injury to worker's compensation benefits, Olivares “has spent more than twenty years repeatedly filing actions in different forums ․ seeking additional compensation arising out of his shoulder injury.” Appellees’ App. Vol. 2, pp. 164-65. He has repeatedly alleged various forms of conspiracy and fraud between PAS, through various employees, and Dr. Graber. He has attempted to rope into his lawsuits legal entities that are purportedly parent or sibling companies to PAS, including, as relevant here, PCI, an Indianapolis-based company that Olivares alleges to be a sibling company of PAS. Indeed, in a 2014 Michigan complaint, Olivares alleged nearly identical claims against Dr. Graber and a different purported employer at the time of his 1998 injury. See id. at 86-98.

[5] On December 10, 2022, Olivares filed the instant action against PCI, Williams, and Dr. Graber. According to Olivares's operative amended complaint,³ Williams, as PCI's agent, and Dr. Graber committed fraud and civil conspiracy when they worked together to hide from Olivares that “his rotator cuff could not be repaired” and to provide Olivares with a “return to work letter.” Appellant's App. Vol. 2, pp. 32-33, 35-36. Those actions compelled Olivares “to return to a job site [at] which no work was offered,” which resulted in the allegedly wrongful termination of his worker's compensation benefits for refusing to work. Id. at 33, 35-36.

[6] PCI and Dr. Graber moved for summary judgment on several grounds, including the relevant statutes of limitations and res judicata. After a hearing at which Olivares did not appear, the trial court granted those motions for summary judgment, and this appeal ensued.⁴

1. The trial court properly entered summary judgment for PCI and Dr. Graber.

[7] We first address Olivares's argument that the trial court erred when it entered summary judgment for PCI and Dr. Graber. Our standard of review is well established:

When this Court reviews a grant or denial of a motion for summary judgment, we “stand in the shoes of the trial court.” Summary judgment is appropriate “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” We will draw all reasonable inferences in favor of the non-moving party. We review summary judgment de novo.

Arrendale v. Am. Imaging & MRI, LLC, 183 N.E.3d 1064, 1067-68 (Ind. 2022) (citations omitted). Further, we “may affirm a grant of summary judgment upon any theory supported by the evidence.” Miller v. Danz, 36 N.E.3d 455, 456 (Ind. 2015).

[8] Olivares argues that the court's orders on summary judgment are erroneous for the following reasons: the Michigan worker's-compensation decisions are against PAS, not PCI, and therefore res judicata cannot apply here; PCI (and others) engaged in efforts to actively conceal PCI's identity as Olivares's true employer from Olivares, and he timely filed the instant action upon learning of PCI's identity; and Dr. Graber concealed evidence of the true scope of Olivares's injury. Olivares also asserts that he “is merely seeking enforcement” of the worker's-compensation decision against PCI; that the Michigan decision (or, more properly, Olivares's reading of it) is entitled to full faith and credit; and that who his actual employer was at the time of his injury “is a question of fact precluding summary judgment.” Appellant's Br. at 27, 33.

[9] We initially agree with PCI that Olivares's assertions on appeal that he is merely seeking enforcement of the Michigan worker's-compensation decisions are not proper. First, Olivares has repeatedly asked Michigan tribunals to reconsider their decisions on his worker's-compensation demands, and Indiana will not reconsider those decisions. Second, Olivares's complaint here identifies two and only two causes of action: one for conspiracy and one for fraud. Neither of those is a request for enforcement of a judgment.⁵

[10] As for Olivares's stated claims in his complaint, we agree with PCI and Dr. Graber that, other reasons favorable to the trial court's judgments notwithstanding, the designated evidence makes clear that Olivares's instant claims are barred by the relevant statutes of limitations. Olivares's conspiracy claims allege an injury to him or his personal property, which carries a two-year statute of limitations. Ind. Code § 34-11-2-4(a) (2021). Olivares's fraud claims, read generously to Olivares, carries at most a six-year statute of limitations. I.C. § 34-11-2-7(4). And, under the discovery rule, a statute of limitations does not begin to run until the plaintiff knows, or in the exercise of ordinary diligence could have discovered, that he has been injured from tortious conduct. City of Marion v. London Witte Grp., LLC, 169 N.E.3d 382, 390 (Ind. 2021). When a cause of action accrues is generally a question of law. Id.

[11] By Olivares's own admissions, he was injured in 1998 while working for his employer. That same year, he received medical care for that injury from Dr. Graber. In April 2014, Olivares filed a complaint in Michigan in which he alleged that, seven days prior to filing that complaint, he had undergone an X-ray of his injured shoulder and learned for the first time the alleged true nature of his injury. Appellees’ App. Vol. 2, p. 86. In that complaint, Olivares alleged that Dr. Graber and another legal entity that Olivares alleged to be his employer had conspired and committed fraud against Olivares to hide the true nature of his injury from him. Id. at 93.

[12] Thus, by his own admissions, Olivares knew in April 2014 of the purported conspiracy and fraud between Dr. Graber and Olivares's employer. That same designated evidence establishes a prima facie showing that any person in Olivares's position at that time, in the exercise of ordinary diligence, would have discovered who his actual employer had been within a reasonable timeframe after the 2014 X-ray, and certainly within two years of the filing of his 2014 complaint.

[13] In response, Olivares simply states that he did not learn that PCI was actually his employer until several years later. He also asserts without explanation that PCI must have been actively hiding itself from discovery by some unknown means. We conclude that Olivares's response, without more, is insufficient to create even a genuine issue of fact as to whether he exercised ordinary diligence following his April 2014 X-ray to discern the true identity of his purported employer. Indeed, he alleges that PCI is a subsidiary of the entity he alleged to be his employer in his 2014 complaint, yet he provides no cogent explanation of why he was unable to discern that entity's corporate structure at that time.

[14] Olivares did not file the instant complaint until December 2022, well beyond the expiration of all of the possibly relevant statutes of limitations. Olivares's claims are therefore time-barred, and the trial court properly entered summary judgment for PCI and Dr. Graber.

2. We remand for the trial court to determine awards of reasonable appellate costs and fees for PCI and Dr. Graber.

[15] PCI and Dr. Graber separately ask that we enter an order awarding them reasonable costs and fees for having to defend themselves in this appeal. We agree. Although PCI and Dr. Graber note numerous procedural flaws in Olivares's prosecution of this appeal, our primary concern is with the obvious conclusion that Olivares has repeatedly abused the judicial process to harass Dr. Graber and others over the course of decades for an injury he sustained in 1998. Insofar as Olivares had an initial entitlement to some relief from that injury, Michigan resolved that matter—whether Olivares likes it or not—many years ago. Rather than accept a final judgment, however, Olivares has repeatedly sought to relitigate the same issues over and again across different forums with no basis to do so. Olivares's abusive litigation tactics have not been properly deterred.

[16] Accordingly, we agree with PCI and Dr. Graber that they are entitled to awards of reasonable appellate costs and fees in this matter, and we remand to the trial court for it to determine and enter those awards.

Conclusion

[17] For all of these reasons, we affirm the trial court's entry of summary judgment for PCI and Dr. Graber, and we remand for the court to determine awards of reasonable appellate costs and fees.

[18] Affirmed and remanded.

FOOTNOTES

1.   Olivares's amended complaint also named Charles Williams as a defendant. However, Olivares later admitted to the trial court that his claims against Williams were in his role as a purported agent for PCI and not individually. Appellant's App. Vol. 2, p. 18. Olivares thus also stipulated that Williams, in any individual capacity, was not a party. Id.

2.   The cover pages of Olivares's appendix volumes suggest two volume numbers; we follow the first stated volume number.

3.   Olivares attempted to file additional amended complaints without the permission of the trial court.

4.   PCI asks that we dismiss Olivares's appeal due to his numerous violations of our Appellate Rules. Although PCI's request is well taken, we instead opt to decide this appeal on its merits and remand to the trial court for it to determine a reasonable award of costs and fees to PCI and Dr. Graber for Olivares's substantive and procedural violations.

5.   Likewise, Olivares's attempts to invoke the twenty-year limitations period for enforcement of judgments is a nonstarter.

Mathias, Judge.

Foley, J., and Felix, J., concur.