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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.

CoA: State had no authority to bring paternity action for stillborn baby

In what is an ultimately very sad case involving the stillborn birth of a baby to a barely teenage girl, the Court of Appeals found that neither the assignment of the matter to the State under Title IV-D of the Social Security Act or Indiana’s paternity statutes, provided an avenue for the State to bring an action to establish paternity. Here, the mother simply wanted to confirm who the father of her child was and was not seeking any other benefit or monetary amount.

Since Title IV-D’s purpose is to enforce support obligations and the paternity statutes are there to provide “proper care, maintenance, education, protection, support and opportunities” to the child, there was no interest or authority for the State to file an action for paternity. This did not mean, however, the mother could not do so on her own.

www.in.gov/judiciary/opinions/pdf/05081401mgr.pdf.

CoA affirms denial of summary judgment to lawyer in legal malpractice case

This matter stems from a legal malpractice claim against a criminal attorney and mainly involves the concept that professional negligence may be nullified if allowing a claim to proceed would allow one to profit from his or her own criminal acts. The CoA limited the application of this rule.

Here, “Beal [the attorney/defendant] represented Blinn [the client/plaintiff] in a federal criminal action, despite Beal’s limited experience with federal litigation, his unfamiliarity with the legal construction of a federal proffer session, its purpose and its consequences, and his failure to convey a request for further interviews as part of the proffer session to Blinn.” The resulting federal proffer session snafu led to Blinn’s plea deal being revoked and him subsequently receiving a worse deal later on through a different attorney.

In arguing for summary judgment, Beal relied on the case of Rimert v. Mortell, 680 N.E.2d 867 (Ind. Ct. App. 1997), trans. denied. In that case, a patient diagnosed as psychotic was discharged and went on to murder four people in South Carolina after which he was found guilty but mentally ill. His family then filed a claim for medical malpractice against the doctor who discharged him.

The Court of Appeals held in that case:

the rule against actions based upon or involving a plaintiff’s criminal act is correlative with Indiana’s public policy against permitting one to profit from his or her wrongdoing. Each embodies the principle that one who is responsible for the commission of a criminal or wrongful act must exclusively bear his or her share of the responsibility for the act, and may not evade that responsibility either through gaining some profit for the act or shifting liability for the act to another. We therefore hold it to be the public policy of this state that an individual who has been convicted of a crime should be precluded from imposing liability upon others, through a civil action, for the results of his or her own criminal conduct. Consequently, a person may not maintain an action if, in order to establish the cause of action, he or she must rely, in whole or in part, upon an illegal act or transaction to which he or she is a party or upon a violation by him or herself of the criminal laws.

Rimert, 680 NE 2d at 874.

The Court of Appeals distinguished Rimert from the instant matter in that the former held one could not essentially excuse his criminal acts (or profit thereform) by stating that the professional negligence caused or contributed to the criminal acts. Rather, when the alleged professional negligence occurred after the alleged criminal actions, as here, the policy was not applicable since it would in essence prevent any criminal defendant from maintaining a legal malpractice claim against his or her own attorney where the defendant was found or pleaded guilty.

www.in.gov/judiciary/opinions/pdf/05071403par.pdf.

UIM policy could be set off by Worker’s Compensation recovery, but not below state minimum

The CoA’s opinion is filed in the ever-expanding catalog of cases relating to under-insured motorist (“UIM”) coverage.

The issue is relevant in light of the Indiana Supreme Court’s recent ruling in Justice v. Am. Family Mut. Ins. Co., 4 N.E.3d 1171, 2014 Ind. LEXIS 196 (Ind. 2014). In fact, the Court of Appeals relies on that decision in reaching its conclusion here.

In this case, the spectacularly surnamed Christine Anderson was in a motor vehicle accident during the course of her employment. The at-fault driver had $25,000 in coverage, which was paid in full, and Anderson received $81,166.15 in worker’s compensation (“WC”) benefits since she was on the job. She had at the time a UIM policy with limits of $100,000. Thus, she sought $75,000 for the remaining UIM coverage.

Indiana Insurance argued that the UIM policy limit was set off by the WC benefit since it exceeded the $75,000 in remianing UIM coverage. This would mean that coverage would be reduced from the policy limits rather than the total damages (e.g. if Anderson had $300,000 in damages, she argues that the amount she received in WC benefits should be deducted from the $300 number instead of the $75K in coverage).

The Court of Appeals sided with Indiana Insurance on this point, holding that policies generally provide for when a setoff is to be made against damages rather than limits of liability and the use of the word damages in other areas of the policy is evidence that the insurer did not intend for the setoff to apply to damages if another word is used.

Paragraph E mentions “element of loss” and does not mention damages. Further, the portion of the Policy addressing underinsured motorists coverage uses the term “damages” on other occasions. Also, similar to Am. Econ., Paragraph E falls under the section titled “LIMIT OF LIABILITY.”  Unlike Tate, the Policy defines an “[u]nderinsured motor vehicle” as one for which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is either: “1. Less than the limit of liability for this coverage; or 2. Reduced by payments to persons, other than ‘insureds’, injured in the accident to less than the limit of liability for this coverage.” Appellant’s Appendix at 163. Based upon Paragraph E, we cannot say that the trial court erred to the extent that it reduced the amount Anderson received from worker’s compensation from the Policy limit.

The Court of Appeals did however hold that under the recently published Justice case, the insurer could not apply WC benefits to reduce the UIM benefit below the state mandated minimum of $50,000.  In citing that case, the Court found the following language dispositive: “[i]f [the underinsured motorist] had carried the required amount of liability insurance, [the insured] would have received $50,000, and the purpose of our uninsured/underinsured motorist statute is to put him in that position.” 4 N.E.3d at 1179. Thus, no matter whatever the WC benefit Anderson received, she was entitled to $50,000 in UIM coverage.

Accordingly, the Court of Appeals upheld summary judgment by the trial court on the issue of the setoff but reversed summary judgment on the issue of the recoverable UIM benefit.

www.in.gov/judiciary/opinions/pdf/05021401ebb.pdf.

Estranged wife entitled only to 2.5% of husband’s lottery winnings

Married couple was physically separated in June, 2006. The husband then won $2,000,000 in the lottery in January, 2011 and coincidentally decided that a final divorce decree was long overdue. Trial Court found that wife was entitled to only 2.5%

Of note was that wife sent requests for admissions that husband did not answer. By these admissions, husband admitted that a 70/30 split to the wife was a just and equitable distribution. The Court of Appeals agreed, affirming that requests for admissions may be used to establish legal conclusions, but stated that husband only admitted that it was “a” just and equitable distribution and not “the only” such distribution. The trial court was still obligated to decide of the distribution was fair and reasonable. See Ind. Code § 31-15-7-5. In so holding, the Court noted: Discretion signifies choice, and a decision-maker exercising discretion has the ability to choose from a range of permissible conclusions. Johnson v. U. S., 398 A.2d 354, 361 (D.C. 1979).

Bad faith finding reversed where there was no obligation to produce evidence detrimental to Plaintiff

At trial on a UIM claim, GEICO’s counsel found out days before the trial that one of the plaintiffs, a doctor, had been charged with obtaining controlled substances by fraud in Florida. The information was raised on cross examination of that plaintiff.  After a verdict for one of the other plaintiffs, plaintiffs moved for a finding of bad faith for not presenting the evidence before trial, pursuant to Ind. Code § 34-52-1-1. The trial court granted the motion and GEICO appealed.

The Court of Appeals reversed on the basis that there was no discovery request for the information compounded by the fact that the plaintiff doctor knew of the information and elected not to disclose it to his attorney.

www.in.gov/judiciary/opinions/pdf/04171401ebb.pdf.

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.

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.

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.

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.

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.

IN CoA sua sponte denies interlocutory appeal for lack of jurisdiction due to untimeliness

In what is now the 9th published decision (State and Federal) emanating from the Mark S. Weinberger, M.D. saga, the Indiana Court of Appeals dismissed the interlocutory appeal of Lake County Judge, Calvin Hawkins’s grant of partial summary judgment. The trial court issued its order on Nov. 19, 2012. The plaintiff then filed a motion to reconsider on January 7, 2013. On April 3, 2013, the trial court entered a stipulated order denying the motion to reconsider and certifying the matter for interlocutory appeal. The order did not cite good cause for delay for filing for interlocutory appeal nor did it include any findings for good cause.

Despite the fact that neither party raised the issue of timeliness, the Appellate Court noted Indiana Appellate Rule 14(B) which provides:

A motion requesting certification of an interlocutory order must be filed in the trial court within thirty (30) days after the date the interlocutory order is noted in the Chronological Case Summary unless the trial court, for good cause, permits a belated motion. If the trial court grants a belated motion and certifies the appeal, the court shall make a finding that the certification is based on a showing of good cause, and shall set forth the basis for that finding.

Thus, even though the certification of interlocutory appeal went uncontested at all stages, the failure to follow this appellate procedure deprives the Appellate Court of jurisdiction to hear argument on the matter. Here, the motion to reconsider could not toll the limitations date and the trial court’s order lacked any findings to go beyond the 30 day deadline to file an interlocutory appeal. Thus, the appeal was dismissed for lack of jurisdiction.

www.in.gov/judiciary/opinions/pdf/02181402cds.pdf.

Trial court may order installment payments of judgment in excess of 7 year term

In action to suspend driver’s licenses of two judgment defendants, trial court did not err in amending judgment to installment payments and reinstating driving privileges of said defendants under Ind. Code § 9-25-6-6. Trial court also had discretion to make the installment longer than 7 years even though statute permits suspension of driving privileges only within 7 years of failure to satisfy judgment. Statute was clear and unambiguous and did not set time limit on installment payments.

See McGee v. McGee, 998 N.E.2d 270, 271 (Ind. Ct. App. 2013) (“[I]t is as important to recognize what a statute does not say as it is to recognize what it does say.”). If we were to interpret the statute in the manner in which NIPSCO suggests, we would be adding a requirement to the statute that is not there. We cannot and will not do that. See id. at 272.

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.

Local fraternity potentially liable for personal injuries from hazing but not national fraternity or university

In today’s decision, the Indiana Supreme Court addressed several questions relating to duty and the safety of college students. The analysis can be broken down as follows:

  1. Wabash College: Wabash College was not liable under a premises liability theory since its tenant, the local fraternity, maintained exclusive control and possession of the premises where the injury occurred. The school’s promulgation of a policy against hazing was insufficient to create an assumed duty as it “did not extend to direct oversight and control of the behavior of individual student members of the local fraternity.” In other words, it discouraged hazing and offered educational outreach but did not police it in such a way that it failed in its undertaking to protect Yost. Finally, the local fraternity was not the agent of Wabash since “mere consent to governance does not equate to agency.”
  2. National Fraternity: the  Fraternity similarly lacked liability on the theories of assumed duty and agency and the reasoning mirrored that which was applied to Wabash.
  3. Local Fraternity: the local fraternity did bear liability because there were sufficient facts to show that the fraternity may have assumed a duty of care of Yost in that it may have assumed supervisory services upon which Yost relied.

www.in.gov/judiciary/opinions/pdf/02131401bd.pdf.

Indiana v. IBM

Much as I try to provide analysis of an entire opinion with what time I have, I draw the line at 93 page opinions. Suffice it to say that, the IN CoA found that IBM materially breached its agreement to provide a working welfare infrastructure to the State but . . .

Despite finding a material breach on IBM’s part, we affirm the trial court’s award of $40 million in assignment fees and $9,510,795 in Equipment fees to IBM. We do so because the State and IBM agreed under the terms of the contract that the State would pay these fees. Further, the State would be unjustly enriched if it were to keep IBM’s  equipment and to assume IBM’s subcontracts without paying IBM. We further affirm the trial court’s denial of Deferred Fees to IBM, reverse the trial court’s award of $2,570,621 in Early Termination Close Out Payments and $10,632,333 in prejudgment interest to IBM, and remand the case to the trial court to determine the amount of fees IBM is entitled to for Change Orders 119 and 133. Finally, we remand the case to the trial court to determine the State’s damages for IBM’s material breach of the contract and to offset any damages awarded to IBM. We therefore affirm in part, reverse in part, and remand the case to the trial court.

www.in.gov/judiciary/opinions/pdf/02131403nhv.pdf.

How not to contest adverse possession.

“While the parties were litigating the issue of ownership, Flick tried to drive Reuter from her home. He removed the underpinning of her mobile home and severed the water lines accessing the well. A short time later, he entered Reuter’s land with a large rotary mower, destroyed her plants, and erected an electric fence around her home.”

While the IN CoA ultimately found that the Reuter was not entitled to retain the property under adverse possession or any other theory, reversing the trial court, it did affirm the award of damages award of $29,487.70 against Flick for damages he caused by attempting to eject Reuter without court authorization pursuant to Indiana Code § 32-30-2-1.

www.in.gov/judiciary/opinions/pdf/02131401nhv.pdf.

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