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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.

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.

IN CoA reverses trial court’s judgment to pierce corporate veil

“Country Contractors, Inc. (“Country”) entered into a contract to provide excavation services for A Westside Storage of Indianapolis, Inc. (“Westside”). Country subcontracted out a substantial portion of the work and eventually left the worksite without completing the job.” Westside filed for breach of contract and slander of title against Country and its two shareholders, the Songers.

On March 11, 2013, the trial court issued its findings, conclusions, and judgment in favor of Westside against Country and against the Songers personally. The $117,542.20 damage award consisted of $51,162.86 in additional costs to complete the Westside project; $14,959.34 in prejudgment interest; $17,500.00 in attorney’s fees; and $33,920.00 in damages for delay of the project caused by Country’s breach.

On the issue of piercing the corporate veil, the CoA did not upset the finding that the corporation was substantially under-capitalized or that the shareholders did not observe corporate formalities. Rather, the focus was on the nexus between any of the elements of piercing the veil and the alleged resulting injustice. Here, the CoA could find no such nexus and so the judgment of the trial court was reversed.

With respect to the slander of title claim, Country and its subcontractor filed liens against Westside for teh same invoiced work. The sub then resolved its lien with Westside and recorded its release. Country filed its lien after the release was filed and had no independent work of its own to claim the lien. Thus there was sufficient evidence to support a slander of title claim and the award of attorneys fees was appropriate enough not upset the trial court’s discretion.

Finally, the award for delay damages was reversed as speculative.

www.in.gov/judiciary/opinions/pdf/02121401tac.pdf.

IN CoA affirms denial of mother’s petition to relocate to Hawaii with son

Where mother petitioned to leave Bartholomew County for better employment and the long list of Hawaii v. Indiana pros, trial court erred in holding that mother did not make the petition in good faith but did not err overall in holding that move was not in child’s best interests. CoA factored in father’s limited ability to exercise parenting time (which he had exercised regularly); the child’s relationship with his extended family; child’s adjustment to school and friends in the area; opposing views of social workers; and mother’s previous contempt order where she obstructed father’s parenting time.

www.in.gov/judiciary/opinions/pdf/02051401cjb.pdf.

Boehringer v. Weber (1-31-14)

IN CoA (Bradford; Mathias & Pyle Concur). Real Estate – Sales Disclosures, Mold

Where two inspections prior to sale of home did not show mold, buyer could not claim seller failed to comply with sales disclosure requirements (which require disclosure of actual knowledge under Ind. Code § 32-21-5-9) or that seller committed fraud. Trial court’s decision was affirmed and seller was entitled to $450,000 in attorneys’ fees and costs at the trial level. The amount of fees was not contested by buyer for reasons unknown.

www.in.gov/judiciary/opinions/pdf/01311401cjb.pdf.

Andrews v. Mor/Ryde International (1-29-14)

CoA: Pyle; Crone concurs & Barnes dissents w/ sep. opinion

In action for bad faith by sales representative against former principal, CoA affirms trial court’s ruling that punitive damages provided by Ind. Code § 24-4-7-5 (in the Indiana Sales Representative Act) are subject to the heightened burden of proof and distribution standards provided by Indiana’s civil punitive damages statute (Indiana Code §§ 34-51-3-2 and 34-51-3-6).

Both the majority and dissenting opinions noted the absence of the legislature’s guidance on how punitive damages should be handled under the ISRA.

www.in.gov/judiciary/opinions/pdf/01291402rrp.pdf.

Reed v. Bethel (1-24-14)

CoA (Pyle; Barnes & Crone concur). Evidence objections at trial

www.in.gov/judiciary/opinions/pdf/01241401rrp.pdf.

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