Archive | March 2014

Trial Court could not reserve issue of spousal maintenance after finding no evidence requiring it in final order

In a divorce case, the Trial Court found insufficient evidence so as to support a finding that Wife was entitled to maintenance (i.e. Indiana’s version of alimony). Wife later received ruling for Social Security appeal that she was in fact disabled and the Trial Court modified its final order.

The Court of Appeals disagreed with this approach, finding:

it is clear that a trial court is to determine whether a spouse is entitled to maintenance at the time the dissolution decree is entered. Ind. Code §§ 31-15-7-1, -2. Indiana Code Section 31-15-7-2(1) and (2) require the court to make certain findings, before it considers whether maintenance is necessary. The spouse seeking maintenance has the burden of proving that he or she is entitled to maintenance. Matzat v. Matzat, 854 N.E.2d 918, 921 (Ind. Ct. App. 2006). If, at the time of dissolution, the trial court finds that a spouse has not satisfied the statutory criteria entitling him or her to maintenance, then that is the end of the matter. The dissolution decree is final. Ind. Code § 31-15-2-16(b).

www.in.gov/judiciary/opinions/pdf/03251401tac.pdf.

Appeal was not timely filed when movant did not properly seek additional time

Sometimes it is easier (and best) just to file a notice of appeal. After losing custody of his child by court order on January 17, 2013, the following timeline occurred:

  1. Petitioner timely filed his Motion to Correct Error on February 8, 2013.
  2. He then filed a motion for extension of time to file a memorandum of law until March 31, 2013, which the trial court granted.
  3. Petitioner timely filed his memorandum of law on April 1, 2013 (March 31 was a Sunday).
  4. Petitioner then filed his notice of appeal on May 30, 2013.
  5. Notably, petitioner never filed for an extension of time for a ruling.

Based on this timeline and facts, the Court of Appeals determined that the following timeline at law applied:

  1. Motion would have been deemed denied forty-five days after it was filed, i.e., on March 25, 2013.
  2. Pursuant to Trial Rule 53.3(D), the trial court had the power to extend its deadline for ruling only for an additional thirty days, i.e., until April 24, 2013.
  3. Thirty days thereafter, the notice of appeal was due (May 24, 2013).

Without filing for an additional time for a ruling to the Supreme Court under Rule 53.1(D), the Court of Appeals allowed for the maximum amount of time to file an appeal, which was May 24, 2013. Petitioner apparently thought he had thirty days from the date his motion was deemed denied in his eyes, which was around May 14, 2013.

www.in.gov/judiciary/opinions/pdf/03191409jsk.pdf.

Increased PCF payout dates bill sent to Gov. Pence

A bill that would increase the number of payouts per year by the Indiana Patients Compensation Fund from 2 times to 4 has made it from the General Assembly to Gov. Pence’s desk.  A copy of the bill is linked below for reference.

Senate Bill 56

Justice v. American Family Insurance

Indiana Supreme Court reversed grant of summary judgment to American Family and held that plaintiff is entitled to recover the remaining $25,000 from American Family under the terms of his underinsured motorist policy limit because the set-off using workers’ compensation benefits in his case would reduce the policy below the statutory minimum. The policy explicitly stated that wok comp benefits set-off reduced the limits of liability, and in this case would bring the policy limits below the statutory minimum.

www.in.gov/judiciary/opinions/pdf/03131401mm.pdf.

Small claims judgment based entirely on hearsay did not violate due process

In a small claim collections case, plaintiff succeeded at trial even though it only submitted an unsworn letter from the creditor dentist. The defendant argued that this violated due process since he was not able to cross-examine the doctor. The Court of Appeals disagreed reasoning that the defendant could have issued a subpoena to ensure the doctor’s appearance at trial. This made the distinguishable from other cases where small claims courts wrongfully disallowed cross-examination of testifying witnesses.

www.in.gov/judiciary/opinions/pdf/03111401rrp.pdf.

Medical malpractice complaint deemed filed on date sent via FedEx

The Indiana Supreme Court reversed the Appellate Court’s holding that a medical malpractice complaint could only be deemed filed as of the date of mailing if, and only if, the complaint were sent out via registered or certified mail. This interpretation of Ind. Code § 34-18-7-3(b) excluded delivery services such as FedEx or UPS. Thus, a party filing a medical malpractice complaint via FedEx, as in this case, would have their complaint with the Dept. of Insurance deemed filed on the date of receipt by the DOI rather than the date it was sent out. Here, it meant the filing of the complaint occurred after the statute of limitations expired.

On a petition for rehearing (which was denied without any further opinion), the plaintiff raised for the first time that Ind. Code § 1-1-7-1(a) should control. That statute reads in relevant part:

If a statute enacted by the general assembly or a rule . . . requires that notice or other matter be given or sent by registered mail or certified mail, a person may use: (1) any service of the United States Postal Service [“USPS”] or any service of a designated private delivery service (as defined by the United States Internal Revenue Service) that: (A) tracks the delivery of mail; and (B) requires a signature upon delivery . . . .

Id. (emphasis added in opinion).

Thus, two issues were presented to the Court: 1) could the plaintiff raise this argument for the first time on rehearing, and 2) could the above statute control the application of Ind. Code  § 34-18-7-3(b). The Supreme Court answered both of these questions in the affirmative.

As to the first point, the Court observed: “The crucial factor, however, in determining whether [the plaintiff] may interject what appears to be a new issue into the appeal is whether [the defendant] had unequivocal notice of the existence of the issue and, therefore, had an opportunity to defend against it.” Hochstedler v. St. Joseph Cnty. Solid Waste Mgmt. Dist., 770 N.E.2d 910, 918 (Ind. Ct. App. 2002), trans. denied. The Court found that the issue of whether the complaint was timely filed was clearly conveyed at all levels and so defendants’ objection on this argument was overruled.

On the second, the Court focused on two portions of the statute: 1) that the med mal statute required delivery by registered or certified mail in order to deem a complaint filed; and 2) that the filing of the complaint fell under the “or other matter” provision.

In closing the Court emphasized that its opinion was an elevation of “form over substance” and observed that there really was no difference anyway between filing a complaint via FedEx or UPS overnight and doing so via registered or certified mail.

www.in.gov/judiciary/opinions/pdf/03101401bd.pdf.

County’s decision not to retain highway supervisor was not subject to judicial review

Indiana Supreme Court holds that county’s vote not to retain supervisor and subsequent yay/nay vote to retain different supervisor were ministerial acts, and not quasi-judicial, and thus were not subject to judicial review.

The Court recited the four factors that would render an act judicial or quasi-judicial:

(1) the presence of the parties upon notice; (2) the ascertainment of facts; (3) the determination of the issues; and (4) the rendition of a judgment or final order regarding the parties’ rights, duties, or liabilities. See Lincoln v. Bd. of Comm’rs of Tippecanoe Cnty., 510 N.E.2d 716 (Ind. Ct. App. 1987), abrogated in part on other grounds by McDillon v. N. Ind. Pub. Serv. Co., 841 N.E.2d 1148 (Ind. 2006).

Here, the Court found that there was “not a ‘determination of issues’ nor a ‘rendition of a judgment or final order regarding the parties’ rights, duties, or liabilities.'” under Lincoln and therefore held that the decision was ministerial.

www.in.gov/judiciary/opinions/pdf/03061401bd.pdf.

Where Arbitrator’s report was messier than the divorce itself, case was reversed and remanded

In divorce case out of Lake County, parties submitted to arbitration. Arbitrator made ruling and Husband timely appealed after filing a timely motion to correct error that the Court did not address.

IN CoA found that report was inconsistent for several reasons, to wit:

  1. Finding that Wife submitted no evidence of medical condition but was awarded maintenance in the form of health insurance premiums for one year;
  2. Denying Wife’s motion for deviation from 50/50 split and then failing to account for several items of personal property;
  3. After the above defect was subsequently corrected, the CoA still found that the property was split in Wife’s favor and that some bank accounts were still not accounted for.

Court reversed and remanded case to remedy these issues.

www.in.gov/judiciary/opinions/pdf/03061401jsk.pdf.

Tax deed upheld where purchaser properly sent notices via certified mail

IN CoA reversed grant of summary judgment in favor of original homeowner and against tax deed purchaser. Purchaser of tax deed was required only to send notice via certified mail, not request a return green or follow up on service, to provide notice of redemption period and then to provide notice that redemption period has expired.  Such service was deemed constitutionally sufficient to provide notice.

www.in.gov/judiciary/opinions/pdf/03061402mgr.pdf.

Attorneys’ fees not recoverable under Crime Victims’ Act for common law fraud

While Crime Victims Relief Act provides for attorneys’ fees for criminal fraud, elements of common law fraud and burden of proof were different so as to bar a claim for attorneys’ fees under the Act for common law fraud.

www.in.gov/judiciary/opinions/pdf/03031402ehf.pdf.

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