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CoA affirms default judgment

CoA upheld a trial court’s default judgment where the defaulted party committed a series of errors over a period of months. The relevant timeline is as follows:

  • Oct. 23, 2012, Plaintiff files complaint
  • Oct. 27, 2012, Plaintiff personally serves Defendant, who lives across the hall from Plaintiff
  • Dec. 4, 2012, Plaintiff files motion for entry of default
  • Dec. 6, 2012 Defendant admits receiving this motion on this date
  • Dec. 10, 2012 Defendant writes letter to Trial Court requesting additional time to obtain counsel. Letter not received until one week later
  • Dec. 11, 2012 Plaintiff obtains default and matter is set for hearing on Feb. 19, 2013 to assess damages
  • Feb. 19, 2013, at hearing on damages,Defendant does not appear but Trial Court receives letter from him requesting continuance, which Trial Court grants with no further extensions of time
  • March 19, 2013, Defendant again does not appear and Court states it will grant default judgment of ~$40,000
  • After hearing, Trial Court receives letter from Defendant citing jury obligation and requesting another continuance
  • April 1, 2013, Trial Court confirms Defendant did not in fact have to report for jury duty and enters default judgment
  • April 3, 2013, Defendant appears by counsel and files vague motion to set aside one month later, which was denied

While the CoA acknowledged the policy of favoring trying cases on the merits, it could not ignore that Defendant failed to show excusable neglect. CoA further stated that a “lack of personal jurisdiction” argument, if made, would have fallen under Rule 60(B)(6) which was not cited by Defendant.

Ultimately, CoA affirmed default but the case is a rather extreme example of Defendant error in responding to a lawsuit and then asserting vague arguments in attempting to lift the default.

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.

Default judgment of $500k set aside where service narrowly defective

In injury case against the American Legion, the plaintiff made service through the sheriff who left copy of summons and complaint with registered agent’s address and then mailed them to the same address, which was not an abode or dwelling, first class. 

Manner of service failed to comply with Trial Rule 4 service on individuals or business entities and setting aside of default judgment was upheld.

www.in.gov/judiciary/opinions/pdf/02281401ewn.pdf.

Slip and fall summary judgment motion denied in IN ND

Plaintiff was a patron at a Target in Valparaiso when she tripped and fell when she “felt her foot catch on something.” Upon examination of the area she saw a hump in the floor mat where she had fallen. This area was in the direct field of vision of a cashier station.

Judge Simon denied Target’s motion for summary judgment, reasoning that the plaintiff’s testimony was enough to rise above mere speculation and that a jury could reasonably infer that the plaintiff caught her foot on the floor mat.

Furthermore, the fact that the defect was in the field of vision of a Target employee was sufficient to show that Target may have had constructive notice of the defect.

OPINION AND ORDER denying 10 Motion for Summary Judgment for Daugherty v. Target Corporation :: Justia Dockets & Filings.

Mitchell v. 10th and The Bypass, LLC

Evidence obtained after entry of an order granting a motion for partial summary judgment may not form the basis for vacating that order. Relief from judgment under Indiana Trial Rules is not limited to final judgments.

www.in.gov/judiciary/opinions/pdf/02201401rdr.pdf.

IN CoA changes position on statute of limitations on amended complaints

In case where motion to amend complaint, adding new defendants, along with proposed amended complaint was filed before statute of limitations but amended complaint and issue of summons were approved after SOL expired, suit was timely filed as to newly added Defendants. Court expressly abrogated the position it took on the same fact pattern presented in A. J.’s Auto. Sales v. Freet, 725 N.E.2d 955 (Ind. Ct. App. 2000) (a case decided at the trial level by Judge Crone and at the appellate level by Judge Friedlander, Sr. Judge Garrard, and Judge Darden, none of whom participated in this opinion). Instead, the panel took the occasion to adopt the majority view on this issue and deemed that the addition of the defendants was timely by virtue of the filed motion and proposed complaint.

www.in.gov/judiciary/opinions/pdf/02201401msm.pdf.

TOPS v. IN DOE

Indiana Department of Education removed TOPS from its list of approved SES providers. TOPS appealed the determination and the DOE sent a letter affirming the decision. The letter did not contain any factual findings regarding its decision, nor did it reference any other document that would contain such findings. TOPS then filed for judicial review and the DOE moved to dismiss, stating that the letter was a final order and thus TOPS was obligated to submit the entire agency file to the trial court for review. The trial court granted the motion and TOPS appealed.

While the CoA admonished TOPS for not attaching the entire file for judicial review, it was not fatal to TOPS’s case. In fact, TOPS’s oversight was minimal compared to the DOE’s. In a strange bout of “let’s hope no one notices,” the DOE attempted to argue on appeal that the order was not final but rather “purported” order, even though the basis for dismissal at the trial level was that the order was final, thereby necessitating TOPS to attach the entire record. The CoA caught the inconsistency and ruled that DOE did not argue this to the trial court and therefore could not raise the argument for the first time on appeal. The DOE had advanced the argument because a final order is indeed required to contain findings of fact.

Under AOPA, a final order by an administrative agency must present written findings of fact, including ‘findings of ultimate fact . . . accompanied by a concise statement of the underlying basic facts of record to support the findings’ as well as ‘conclusions of law for all aspects of the order.’ Pack v. Indiana Family & Soc. Servs. Admin., 935 N.E.2d 1218, 1222 (Ind. Ct. App. 2010) (quoting Ind. Code § 4-21.5-3- 27(b) & (c)).

Thus, the cause was remanded to the administrative level where the DOE will be given the opportunity to support its decision with findings of fact and conclusions of law.

www.in.gov/judiciary/opinions/pdf/02141402mpb.pdf.

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