RECENT DEVELOPMENTS IN INDIANA CIVIL PROCEDURE

* Partner, Hoover Hull LLP, Indianapolis, Indiana. B.S., 1994, Indiana University—

Bloomington; J.D., 1998, magna cum laude, Indiana University School of Law—Indianapolis. The

views expressed herein are solely those of the author.

1. This Article discusses select Indiana Supreme Court and Indiana Court of Appeals

decisions during the survey period—from October 1, 2004, through September 30, 2005, except

where otherwise indicated—as well as amendments to the Indiana Rules of Trial Procedure that

were ordered by the Indiana Supreme Court during the survey period.

2. I

ND. TRIAL R. 4.4(A).

3. Compare Litmer v. PDQUSA.com, 326 F. Supp. 2d 952, 955 n.3 (N.D. Ind. 2004)

(finding that the 2003 amendment makes Indiana’s long-arm statute coextensive with the limits of

due process, “allowing courts to collapse the prior two-prong analysis into a single inquiry:

whether the exercise of personal jurisdiction comports with due process”), with Pozzo Truck Ctr.,

Inc. v. Crown Beds, Inc., 816 N.E.2d 966, 969 n.2 (Ind. Ct. App. 2004) (concluding, based at least

in part on the retention of the specific, enumerated acts in amended Rule 4.4(A), that Indiana courts

will continue to apply the two-step analysis, “first determining whether the conduct falls under the

long-arm statute and then whether it comports with the Due Process Clause as interpreted by the

United States Supreme Court and courts in this state”), and Michael A. Dorelli, Recent

Developments in Indiana Civil Procedure, 39 I

ND. L. REV. 817, 831 n.115 (2006) (“[T]he

enumerated acts may have been included in the amended Rule as specific but non-exhaustive bases

for a finding of constitutional due process.”).

4. 857 N.E.2d 961 (Ind. 2006). The LinkAmerica decision was rendered December 5, 2006,

just outside the current survey period. However, the ruling is included given its significant,

RECENT DEVELOPMENTS IN INDIANA CIVIL PROCEDURE

ICHAEL A. DORELLI

During the survey period, the Indiana Supreme Court and the Indiana Court

of Appeals rendered decisions both changing fundamental principles of state

procedural law and providing helpful interpretations of the Indiana Rules of Trial

Procedure (“Rules” or “Indiana Trial Rules”). Amendments to the Rules were

minimal during the survey period. Nevertheless, appellate interpretation of the

Rules continued to effect an evolution of the manner in which the Rules are

applied in practice.

I. I

NDIANA SUPREME COURT DECISIONS

A. Personal Jurisdiction Reduced to One-Step Analysis

In 2003, Rule 4.4(A)—Indiana’s “long arm” jurisdiction statute—was

amended to include the following language: “In addition, a court of this state

may exercise jurisdiction on any basis not inconsistent with the Constitutions of

this state or the United States.” Since the amendment, state and federal courts

have disagreed whether the amendment reduced the personal jurisdictional

analysis from two steps to one or whether the retention of specific, enumerated

acts satisfying statutory long-arm jurisdiction evidenced an intent to retain a two-

step jurisdictional analysis.

In LinkAmerica Corp. v. Albert, the Indiana Supreme Court resolved the

706 INDIANA LAW REVIEW [Vol. 40:705

immediate impact on jurisdictional analysis.

5. Id. at 967.

6. The court in LinkAmerica recited the due process framework for jurisdictional analysis

as follows:

The Due Process Clause of the Fourteenth Amendment requires that before a state

may exercise jurisdiction over a defendant, the defendant must have certain minimum

contacts with [the state] such that the maintenance of the suit does not offend traditional

notions of fair play and substantial justice. If the defendants’ contacts with the state are

so continuous and systematic that the defendant should reasonably anticipate being

haled into the courts of that state for any matter, then the defendant is subject to general

jurisdiction, even in causes of action unrelated to the defendant’s contacts with the

forum state.

If the defendant’s contacts with the forum state are not continuous and systematic,

specific jurisdiction may be asserted if the controversy is related to or arises out of the

defendant’s contacts with the forum state. Specific jurisdiction requires that the

defendant purposefully availed itself of the privilege of conducting activities within the

forum state so that the defendant reasonably anticipates being haled into court there.

A single contact with the forum state may be sufficient to establish specific jurisdiction

over a defendant, if it creates a substantial connection with the forum state and the suit

is related to that connection. But a defendant cannot be haled into a jurisdiction solely

as a result of random, fortuitous, or attenuated contacts or of the unilateral activity of

another party or a third person.

Finally, if the defendant has contacts with the forum state sufficient for general or

specific jurisdiction, due process requires that the assertion of personal jurisdiction over

the defendant is reasonable.

Id. at 967 (internal citations and quotation marks omitted) (alteration in original).

7. Id. at 968 (citing Wesleyan Pension Fund, Inc. v. First Albany Corp., 964 F. Supp. 1255,

1261 (S.D. Ind. 1997)).

issue, clarifying that the 2003 amendment to Rule 4.4(A), despite its retention of

the specific, enumerated acts satisfying long-arm jurisdiction, collapses the

personal jurisdictional inquiry into a single step:

The 2003 amendment to [Rule 4.4(A)] was intended to, and does, reduce

analysis of personal jurisdiction to the issue of whether the exercise of

personal jurisdiction is consistent with the Federal Due Process Clause.

Retention of the enumerated acts found in Rule 4.4(A) serves as a handy

checklist of activities that usually support personal jurisdiction but does

not serve as a limitation on the exercise of personal jurisdiction by a

court of this state.

Following a recitation of federal due process rules and standards, the court

in LinkAmerica recognized the presumption that the contacts of a wholly owned

subsidiary with the forum state “are not attributed to the parent corporation for

jurisdictional purposes.” The court explained that the presumption of

separateness is overcome only upon “clear evidence” that “either (1) the parent

utilizes its subsidiary in such a manner that an agency relationship can be

2007] CIVIL PROCEDURE 707

8. Id. (citing Wesleyan Pension Fund, Inc., 964 F. Supp. at 1261-62).

9. Id. at 969.

10. Id.

11. Id. at 970.

12. Id. Interestingly, the court recognized and addressed the similarities between personal

jurisdiction analysis under the due process clause with the corporate veil-piercing doctrine. Id. The

court recognized that

[p]iercing may, in some instances, be based on facts that also support the assertion of

jurisdiction over the parent of a subsidiary. Otherwise stated, the same conduct of a

foreign corporate defendant may in some cases expose it to both personal jurisdiction

and liability under the laws of a particular forum.

Id.

13. 849 N.E.2d 535 (Ind. 2006).

14. Id. at 536-37.

15. Id. at 536.

16. Id.

perceived; (2) the parent has greater control over the subsidiary than is normally

associated with common ownership and directorship; or (3) the subsidiary is

merely ‘an empty shell.’”

The Indiana Supreme Court reversed the Indiana Court of Appeals’ finding

that the presumption of “separateness” was overcome, discussing as significant

the fact that the parent company and the subsidiary did not share common

“operating personnel.” The supreme court in LinkAmerica evaluated the parent

company’s observation of and adherence to “corporate formalities,” in addition

to the contacts of common “operating personnel,” in resolving the jurisdictional

issue. After evaluating the parent company’s adherence to corporate

formalities, the court upheld the “separateness” of the parent from its subsidiary,

concluding that the plaintiffs “have not provided anything to overcome the

presumption that [the parent] and [subsidiary] are institutionally independent.”

Therefore, the court held, the subsidiary’s “contacts with the state cannot be

attributed to [the parent].”

B. Action Pending in Another Court

In Kozlowski v. Dordieski, the court discussed the frequent

mischaracterization of a Rule 12(B)(8) defense—i.e., that “the same action is

pending in another state court”—as “jurisdictional” and held that although the

trial court possessed subject matter jurisdiction over the particular case before it,

it properly refrained from exercising its authority under Rule 12(B)(8). In

Kozlowski, the defendants had filed a writ of certiorari in Lake County Superior

Court (as plaintiffs therein), challenging a decision by the Lake County Plan

Commission approving a subdivision and a waiver of certain subdivision

ordinance requirements. The superior court affirmed the commission’s

decision, but the Indiana Court of Appeals reversed and remanded the matter

back to the commission.

708 INDIANA LAW REVIEW [Vol. 40:705

17. Id.

18. Id. at 536-37.

19. Id. (quoting Kozlowski v. Dordieski, 831 N.E.2d 1270 (Ind. Ct. App. 2005)).

20. Id. at 537 (internal quotation marks omitted) (“[T]his case is not about subject matter

jurisdiction, but rather priority.”).

21. Id. at 537 n.1.

22. Id. (quoting Appellee’s Appendix, Kozlowski v. Dordieski, 831 N.E.2d 1270 (Ind. Ct.

App. 2005) (No. 45S05-0606-CV-223)).

23. Id. at 537.

24. Id. (quoting Pivarnik v. N. Ind. Pub. Serv. Co., 636 N.E.2d 131, 134 (Ind. 1994)).

25. Id.

26. Id.; see also Kentner v. Ind. Pub. Employers’ Plan, Inc., 852 N.E.2d 565, 575 (Ind. Ct.

App. 2006) (reversing the trial court’s dismissal of state court complaint pursuant to Rule 12(B)(8)

and principles of comity), trans. denied, 2007 Ind. LEXIS 130 (Ind. Feb. 22, 2007). The court in

Kentner described “the way in which a 12(B)(8) motion should be evaluated”:

The determination of whether two actions being tried in different state courts constitute

the same action depends on whether the outcome of one action will affect the

adjudication of the other. The rule applies and an action should be dismissed where the

parties, subject matter, and remedies are precisely or even substantially the same in both

suits.

Subsequently, the plaintiffs in Kozlowski filed a complaint for injunctive

relief with the Lake County Circuit Court, seeking, among other things, an

injunction against any further work. The circuit court entered summary

judgment against the plaintiffs, stating that it did not have “subject matter

jurisdiction” over the matter; rather, it concluded that the Lake County Superior

Court had subject matter jurisdiction. The Indiana Court of Appeals affirmed

the Circuit Court’s decision, holding that “the trial court correctly concluded that

it lacked subject matter jurisdiction over these proceedings.”

The Indiana Supreme Court affirmed the result reached by the court of

appeals, but clarified that “subject matter jurisdiction was not the right reason.”

Recognizing that “the prevalence among this state’s bench and bar [is to] view[]

various procedural defenses through a jurisdictional lens[,]” the court in

Kozlowski analyzed the issue under Trial Rule 12(B)(8), even though at least one

of the defendants alleged that the Circuit Court lacked “jurisdiction over the

subject matter.” The court explained that under Rule 12(B)(8), “a defendant

may assert as an affirmative defense that the same action is pending in another

state court.” Two actions are the “same if the parties, subject matter, and

remedies sought are substantially the same in both suits.” The court found that

the only difference between the original certiorari petition and the later complaint

for injunctive relief, for Rule 12(B)(8) purposes, “lies in [the] request in the

second action to demolish the improvements, while the first action sought to

prevent them from being made.” Concluding that “[b]oth cases had

substantially the same parties, subject matter, and remedies sought,” the court in

Kozlowski held that “[t]he Lake Circuit Court was right to refrain from exercising

authority over [the] case.”

2007] CIVIL PROCEDURE 709

Kentner, 852 N.E.2d at 570-71 (quoting Vannatta v. Chandler, 810 N.E.2d 1108, 1110-11 (Ind. Ct.

App. 2004)). The court in Kentner concluded that, in the case before it, “neither the parties, the

subject matter, nor the remedies of the two lawsuits at issue [were] substantially the same[,]” nor

would the outcome of one lawsuit have an “effect upon the outcome of the other.” Id. at 575.

Regarding the trial court’s dismissal based on principles of comity, the court “applaud[ed] the trial

court’s desire to respect the proceedings that [were] ongoing in its sister federal court[,]” but

reiterated its conclusions on the Rule 12(B)(8) issue that there was “no need to dismiss the [state

court] [l]itigation out of deference to the federal district court . . . .” Id. at 576.

27. 839 N.E.2d 1179 (Ind. 2006).

28. Id. at 1186.

29. Id. at 1185 (internal citations omitted).

30. Id.

31. Id.

32. Id.

C. Waiver of Affirmative Defenses

In Willis v. Westerfield, the court held that the “sudden emergency” doctrine

is not an affirmative defense within the meaning of Rule 8(C) and, therefore, the

defense was not waived due to the defendant’s failure to plead it as an

affirmative defense in his answer. In reaching its decision, the Indiana Supreme

Court provided a helpful discussion of Rule 8(C) and the definition of an

“affirmative” defense:

[Rule 8(C)] provides that “[a] responsive pleading shall set forth

affirmatively and carry the burden of proving: [list of defenses] and any

other matter constituting an avoidance, matter of abatement, or

affirmative defense.” Pursuant to this Rule, a party seeking the benefit

of an affirmative defense must raise and specifically plead that defense

or it is waived. . . . The list of affirmative defenses contained in the Rule

is not exhaustive.

. . . Whether a defense is affirmative “depends upon whether it

controverts an element of a plaintiff’s prima facie case or raises matters

outside the scope of the prima facie case.” . . . An affirmative defense is

a defense “upon which the proponent bears the burden of proof and

which, in effect, admits the essential allegations of the complaint but

asserts additional matter barring relief.”

The court in Willis explained that “[s]udden emergency does not assert a

matter outside the allegations of the plaintiff’s complaint.” The fact that the

proponent of the sudden emergency defense bears the burden of proof “does not

in itself render the sudden emergency doctrine an affirmative defense.” In other

words, according to the court in Willis, “the doctrine does not admit the

allegations of the complaint but nevertheless excuse fault.” Rather, the doctrine

“defines the conduct to be expected of a prudent person in an emergency

710 INDIANA LAW REVIEW [Vol. 40:705

33. Id. (quoting Brooks v. Friedman, 769 N.E.2d 696, 699 (Ind. Ct. App. 2002)).

34. Id. at 1186.

35. Id.

36. 848 N.E.2d 675 (Ind. 2006).

37. Id. at 677.

38. Id.

39. Id. at 678.

40. Id. Pursuant to Indiana Evidence Rule 201(a), “[a] judicially-noticed fact must be one

not subject to reasonable dispute in that it is either (1) generally known within the territorial

jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” I

ND. R. EVID. 201(a).

41. Lutz, 848 N.E.2d at 678.

situation.”

The Indiana Supreme Court disagreed with the Indiana Court of Appeals’

reasoning that “a mandatory pleading requirement for the sudden emergency

doctrine would promote fairness by ‘minimizing the chances of trial by ambush’

and would allow for better preparation of suits, thereby promoting judicial

efficiency.” The Indiana Supreme Court explained that “[t]he same could be

said for a number of other circumstances that may be claimed to explain conduct

that may be seen as presumptively negligent. Discovery, not a pleading

requirement, is the means the Rules provide to ferret these out.”

D. Judicial Notice of Admission in Answer

In Lutz v. Erie Insurance Exchange, the court analyzed the appropriate

procedure for using an admission in a party’s pleading to prove a fact at trial.

Specifically, a third-party plaintiff requested judicial notice of the fact that a

traffic light was red at the time of an accident, based on the third-party

defendant’s admission of that fact in her answer to the third-party complaint.

The trial court declined the judicial notice request, the third-party plaintiff

appealed and the court of appeals affirmed.

On transfer, the Indiana Supreme Court clarified that a trial court may take

judicial notice of a party’s pleadings, but the facts recited in the pleadings may

not be susceptible to judicial notice. In Lutz, the court determined that whether

or not a traffic light was red at a particular time is not the type of fact appropriate

for judicial notice because it is “plainly not generally known or resolvable by

resort to any unquestionable source.” However, the court recognized that once

the admission contained in the answer was judicially noticed, it became a

“judicial admission as a matter of law.” The court explained the effect of an

admission in a party’s pleading as follows:

Statements contained in a party’s pleadings may be taken as true as

against the party without further controversy or proof. Unless a pleading

is withdrawn or superseded, any admission contained in the pleading is

conclusive as to that party. The reason for this is that pleadings are

designed to narrow the issues required to be tried. Opposing parties

2007] CIVIL PROCEDURE 711

42. Id. (internal citations omitted).

43. Id.

44. Id.

45. 845 N.E.2d 1038 (Ind. 2006).

46. Id. at 1042.

47. Id. Fuchs involved a decree on a paternity petition, which included a provision that any

post-decree matters would be mediated before the filing of any post-decree requests for relief.

prepare their case on the assumption that facts admitted by other parties

require no proof. For this scheme to work properly, parties must be

entitled to rely on trial courts to treat admissions in pleadings as binding

on the party making the admission.

The court in Lutz held that the third-party plaintiff was “entitled to an

instruction that as to [the third-party defendant] the light was red.” The court

questioned whether the third-party plaintiff requested such an instruction and

determined that, because the jury was properly instructed on other issues that

rendered the trial court’s omission of this instruction harmless, the third-party

plaintiff was not prejudiced.

Using the Lutz decision as a guide, a plaintiff seeking to bind a party to an

admission in a pleading should first request judicial notice of the pleading and,

more specifically, the admission. Second, if the facts admitted are not subject to

judicial notice under Indiana Rule of Evidence 201, the plaintiff should request

an instruction regarding the admitted facts, based on the “judicial admission” of

the facts in the pleading.

E. Mandatory Mediation

In Fuchs v. Martin, the court held that a trial court “may require parties to

engage in mediation as a prerequisite to contested court trials or hearings” and

that a court may, “in the exercise of sound discretion in discrete cases, order

mediation as a prerequisite to the filing of requests for future proceedings

therein.” In support of its holdings, the court in Fuchs explained the policy

supporting mandatory mediation:

The best interests of Indiana citizens and sound judicial administration

are well-served when trial courts fully utilize and promote the use of

mediation, which can be an enormously effective tool to facilitate the

amicable resolution of disputes, to enable parties to meaningfully

participate in crafting solutions that best serve their respective interests,

to reduce points of contention that would otherwise require a court

hearing, to minimize the destructive polarization that can accompany

contested adversarial proceedings, to resolve disputes often more

expeditiously and less expensively than by protracted litigation and trial

proceedings, to equip parties with dispute resolution skills, and to relieve

crowded trial dockets thus enabling courts to provide necessary trials

712 INDIANA LAW REVIEW [Vol. 40:705

48. Id. at 1041.

49. Id. at 1043.

50. Id.

51. Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000).

52. Glotzbach v. Froman, 854 N.E.2d 337, 338 (Ind. 2006).

53. Id. (quoting Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 355 (Ind. 2005)

(concluding that “existing remedies were sufficient to outweigh the benefits of an independent tort

action for first-party spoliation”)). In particular, the court in Gribben explained that “the remedies

for destruction of evidence, including the inference that the destroyed evidence was unfavorable,

criminal sanctions against the party, and professional sanctions for attorneys, were all available to

deter and redress first-party spoliation.” Gribben, 824 N.E.2d at 355.

54. Gribben, 824 N.E.2d at 355.

55. Glotzbach, 854 N.E.2d at 339.

56. Id. (discussing Thompson v. Owensby, 704 N.E.2d 134 (Ind. Ct. App. 1998); Murphy

v. Target Prods., 580 N.E.2d 687, 690 (Ind. Ct. App. 1991), abrogation recognized by City of Gary

v. Smith & Wesson Corp., 776 N.E.2d 368 (Ind. Ct. App. 2002)).

more promptly.

Further, the court held that “the power of an individual trial court to order

mediation in a specific case is not limited by [local rules authorizing

mediation].” Rather, the court explained, “[t]he fact that local rules may

establish a general requirement for mediation in some situations does not limit

a court from ordering it under other circumstances.”

F. Third-Party Spoliation of Evidence—No Independent Cause of Action

Spoliation of evidence is “the intentional destruction, mutilation, alteration,

or concealment of evidence.” “If spoliation by a party to a lawsuit is proved,

rules of evidence permit the jury to infer that the missing evidence was

unfavorable to that party.” In 2005, the Indiana Supreme Court, answering a

certified question from the United States District Court, held that “Indiana

common law does not recognize an independent cause of action for either

intentional or negligent ‘first party’ spoliation of evidence, i.e., spoliation by a

party to the underlying claim.” The Indiana Supreme Court “expressly held

open the question whether Indiana law recognized a tort of spoliation by third

parties, i.e., ‘persons that are not parties to litigation.’”

In Gotzbach v. Froman, the Indiana Supreme Court addressed that question

and declined to recognize a claim for third-party spoliation—i.e., spoliation by

persons that are not parties to the litigation—where an employee sought to

impose a duty on his employer to preserve evidence of an industrial accident.

After reviewing prior case law from the Indiana Court of Appeals, including the

court of appeals’ decision in the present case, the court in Gotzbach held that

“existing case law and public policy dictate refusal to recognize an independent

cause of action under the circumstances presented by [that] case.”

The court in Glotzbach rejected arguments that a “special relationship” was

created between the employer and employee by the employer’s “knowledge of

2007] CIVIL PROCEDURE 713

57. Id. at 339. The court reasoned that

an employer will virtually always be aware of an injury occurring in the workplace. If

that knowledge were sufficient to establish a special relationship, the practical effect

would be that an employer always has a duty to preserve evidence on behalf of its

employee for use in potential litigation . . . .

Id. at 339-40.

58. Id. at 340. The court explained that “the relationship of the parties, not foreseeability”

was the central factor, and it ruled that “[m]ere ownership of potential evidence, even with

knowledge of its relevance to litigation, does not suffice to establish a duty to maintain such

evidence.” Id. at 340-41 (quoting Reinbold v. Harris, 2000 U.S. Dist. LEXIS 16643, at *8 (S.D.

Ind. Nov. 7, 2000)).

59. Id. at 341.

60. Id.

61. Id.

62. Id.

63. Id. (citing Petrik v. Monarch Printing Corp., 501 N.E.2d 1312, 1320 (Ill. App. Ct. 1986))

(“It would seem to be sheer guesswork, even presuming that the destroyed evidence went against

the spoliator, to calculate what it would have contributed to the plaintiff’s success on the merits of

the underlying lawsuit.”).

[the] situation and the circumstances surrounding the accident” and that “the

foreseeability of harm caused by the failure to retain [the evidence] supports the

recognition of a duty.” In addition, the court determined that “policy

considerations are the controlling factor in refusing to recognize spoliation as a

tort under [the circumstances in the case].” Rejecting the argument that the

policy of deterring spoliation required recognition of an independent cause of

action against third parties, the court explained the following:

We agree that evidentiary inferences are not available as a remedy for or

deterrent to third-party spoliation. Many of the other remedies remain

applicable, however. Criminal sanctions apply equally to third parties

and first parties. Similarly, sanctions under the Indiana Rules of

Professional Conduct are available if attorneys for the third party are

involved in the misconduct. Courts also have the power to issue

contempt sanctions against non-parties who frustrate the discovery

process by suppressing or destroying evidence.

Finally, the court in Glotzbach reasoned that “[p]roving damages in a third-

party spoliation claim becomes highly speculative and involves a lawsuit in

which the issue is the outcome of another hypothetical lawsuit.” The court

expressed concern that a “jury would be asked to determine what the damages

would have been had the evidence been produced and what the collectibility of

these damages would have been.” The court stated that “this exercise often

could properly be described as ‘guesswork.’”

714 INDIANA LAW REVIEW [Vol. 40:705

64. IND. TRIAL R. 53.3(A).

65. Id.

66. 849 N.E.2d 1114 (Ind. 2006).

67. Id. at 1116.

68. Id.

69. 726 N.E.2d 285 (Ind. 2000).

70. Metcalf, 849 N.E.2d at 1115 (discussing Cavinder, 726 N.E.2d at 289).

71. Id. at 1116.

72. Id.

G. Deemed Denial of Motion to Correct Error

Pursuant to Indiana Trial Rule 53.3(A), a motion to correct error is “deemed

denied” if (1) the court fails to set the motion for hearing within forty-five days,

or (2) the court fails to rule on the motion within thirty days after it was heard or

forty-five days after it was filed, if no hearing is required. Further, Rule

53.3(A) provides that any appeal must be initiated within thirty days after the

motion is deemed denied.

In Garrison v. Metcalf, the Indiana Supreme Court held that a motion to

correct error was deemed denied thirty days after a hearing on the motion, despite

that the trial court belatedly granted the motion thirty-six days after the

hearing. More specifically, the court in Metcalf ruled that the trial court’s

belated grant of the motion was invalid because the moving party failed to file

a notice of appeal within thirty days after the date on which the motion was

deemed denied.

The court in Metcalf distinguished its prior decision in Cavinder Elevators,

Inc. v. Hall, in which it ruled that a trial court’s belated grant of a motion to

correct error could stand where the moving party filed a notice of appeal within

thirty days of the date of the deemed denial. In the present case, the moving

party failed to file a notice of appeal. As such, the Indiana Supreme Court held

that the motion was deemed denied pursuant to Rule 53.3(A) and the trial court’s

belated grant of the motion was invalid.

The court apparently recognized the harshness of its decision and the

“peculiarity” of the seemingly meaningless act of filing a notice of appeal after

a motion to correct error is belatedly granted:

We admit that it seems somewhat odd to require a notice of appeal to be

filed after a motion to correct error has been belatedly granted in order

to validate the grant of the motion to correct error. But this peculiarity

is a function of the date on which the trial court belatedly ruled in this

particular case; that will not always be so . . . . Eliminating the

possibility of this peculiarity would effectively amend the deadline in

Trial Rule 53.3(A) for ruling on motion to correct errors from 30 to 60

(or 45 to 75) days.

In short, under Metcalf, if a trial court belatedly grants a motion to correct

error, the moving party must file a notice of appeal within thirty days after the

2007] CIVIL PROCEDURE 715

73. 841 N.E.2d 1148 (Ind. 2006).

74. Id. at 1150-51.

75. I

ND. TRIAL R. 6(E).

76. McDillon, 841 N.E.2d at 1152.

77. Id. (emphasis added). The court in McDillon recognized that the trial court did not apply

or interpret Rule 6(E) in reaching its decision—which involved the timeliness of a jury trial demand

following an order setting aside a default judgment—nor was Rule 6(E) raised by either party on

appeal. Id.

78. 842 N.E.2d 804 (Ind. 2006).

79. Id. at 806.

80. Id.

“deemed denial” date in order to “validate” the trial court’s belated ruling.

Whether the appeal must actually be litigated in order to effectuate the validation

is not addressed in Metcalf. Further, the Metcalf decision implies that if a trial

court belatedly denies a motion to correct error, the thirty-day deadline for filing

a notice of appeal would run from the date on which the motion was deemed

denied—i.e., not from the actual denial date.

H. Three Day Extension for Service by Mail

In McDillon v. Northern Indiana Public Service Co., the Indiana Supreme

Court resolved “an apparent conflict among Indiana cases regarding the

application of Rule 6(E) and its automatic three-day extension of time when court

orders are mailed.” Rule 6(E) provides as follows:

Whenever a party has the right or is required to do some act or take some

proceedings within a prescribed period after the service of a notice or

other paper upon him and the notice or paper is served upon him by mail,

three [3] days shall be added to the prescribed period.

After analyzing prior decisions from the Indiana Court of Appeals

interpreting Rule 6(E), sometimes with differing results, the court in McDillon

clarified that Rule 6(E)’s three-day extension of time “applies only when a party

has a right or is required to do some act within a prescribed period after the

service of a notice or other paper.” According to the court in McDillon, the

Rule “does not apply to extend periods that are triggered by the mere entry of the

order or the happening of an event other than the service of notice or other

paper.”

I. Motion for Relief from Judgment

In Allstate Insurance Co. v. Fields, the court clarified that Trial Rule 60(B),

governing motions for relief from judgment, does not authorize a motion for

relief from an interlocutory order. The issue arose in the context of an

attempted appeal from the trial court’s order denying a motion for relief from an

order entering a default on liability but setting the case for trial on damages.

The court in Fields discussed prior amendments to Rule 60, as well as

716 INDIANA LAW REVIEW [Vol. 40:705

81. Id. at 807-08 (discussing Pathman Constr. Co. v. Drum-Co Eng’g Corp., 402 N.E.2d 1

(Ind. Ct. App. 1980)).

82. Id. at 808.

83. Id. at 808-09.

84. Id. at 809.

85. Id.

86. Id.

87. Id. The supreme court explained that by granting transfer, the decision of the Indiana

Court of Appeals was vacated, making dismissal and remand the appropriate procedural course.

Id.

88. 846 N.E.2d 761 (Ind. Ct. App. 2006).

interpretive case law, in reaching its conclusion that inclusion of the phrase

“entry of default” in Rule 60(B) does not render the rule applicable to

interlocutory orders of default that do not constitute final judgments. The court

explained that “fairness and sound judicial administration do not favor granting

an exceptional privilege of immediate appellate access to a party defaulted for

failure to comply with applicable rules or court orders.”

The court elaborated on the intended function of Rule 60(B) and (C):

The function of Rule 60(B) is to permit parties to challenge a judgment

at a point subsequent to the expiration of the time allowed for filing a

motion to correct error or initiating an appeal. When a trial court denies

such a 60(B) motion, a party aggrieved thereby must have an opportunity

to appeal. Trial Rule 60(C) establishes that such a ruling constitutes a

final judgment, thus permitting an appeal, and triggers the timing

deadline for taking such an appeal.

According to the court in Fields, a motion to reconsider the entry of default

on the issue of liability would have been the appropriate procedural mechanism

for challenging the trial court’s ruling. Because a motion to reconsider is not

a request for relief under Rule 60(B), a denial of the motion would not be

“deemed a final judgment” or otherwise appealable pursuant to Rule 60(C).

The court in Fields recognized that the trial court properly could have treated

the Rule 60(B) motion as a motion for reconsideration. Because the trial court

denied the motion and no certification of the trial court’s interlocutory ruling was

sought, the Indiana Supreme Court dismissed the appeal and remanded the matter

to the trial court for further proceedings.

II. INDIANA COURT OF APPEALS’ DECISI ONS

A. Venue

1. Preferred Venue—“Sufficient Nexus Test.”—In Skeffington v. Bush, the

court of appeals evaluated whether a “sufficient nexus” existed between land and

the underlying action, such that venue was proper under Trial Rule 75(A)(2),

which states that preferred venue lies in “the county where the land or some part

2007] CIVIL PROCEDURE 717

89. Id. at 763 (quoting IND. TRIAL R. 75(A)(2)).

90. Id. at 762.

91. Id.

92. Id.

93. Id.

94. Id.

95. Id.

96. Id. at 763.

97. Id. (quoting Diesel Constr. Co. v. Cotten, 634 N.E.2d 1351, 1354 (Ind. Ct. App. 1994)).

98. Id. at 763-64.

99. Id. at 764 (citing I

ND. TRIAL R. 75(A)(2)).

100. Id.

101. 846 N.E.2d 234 (Ind. Ct. App. 2006).

102. Id. at 243 (emphasis added).

103. Id. at 241 (quoting City of Fort Wayne v. State ex rel. Hoagland, 342 N.E.2d 865, 869

thereof is located or the chattels or some part thereof are regularly located or

kept, if the complaint includes a claim for injuries thereto or relating to such land

or such chattels.”

Specifically, in Bush, the plaintiff contracted with the Gary Community

School Corporation to install new surfaces on five football fields located in Lake

County. The plaintiff subcontracted with the defendant to hydro-seed the

football fields. When the grass did not grow as the defendant had guaranteed,

the plaintiff “subcontracted with two other firms to install sod on three of the

football fields.” The plaintiff then filed suit against the defendant, alleging

breach of contract, breach of warranty and negligence in the performance of the

work. The defendant filed a motion to transfer venue to Porter County, where

he resides and his business is located. The motion was granted by the trial

court, which concluded that there was “no nexus between the suit and the Lake

County land of the Gary Community School Corporation.”

The court in Bush explained that “[a] claim relates to the land under [Trial

Rule 75(A)(2)] if there is a sufficient nexus between the land and the underlying

action.” “The nexus test will be affected by such factors as, but not limited to,

whether the acts giving rise to the liability occurred there, and whether

examination of the site may be necessary to resolve the dispute.”

The court held that a “sufficient nexus” existed “between [the plaintiff’s]

action and the football fields [the defendant] hydro-seeded for [the plaintiff’s]

complaint to allege claims related to land.” “Because the land is in Lake

County, preferred venue lies there.” The court of appeals reversed the trial

court’s decision transferring venue to Porter County.

100

2. Jurisdiction of Court upon Change of Judge.—In City of Gary v.

Enterprise Trucking & Waste Hauling, the court held that “the trial court did

101

not have jurisdiction to enter a permanent injunction after it had already granted

[a] change of judge motion.” “It is the general rule that once a proper and

102

timely motion for change of venue is filed, the trial court is divested of

jurisdiction to take further action except to grant the change of venue.” The

103

718 INDIANA LAW REVIEW [Vol. 40:705

(Ind. App. 1976)).

104. Id. at 242 (quoting I

ND. TRIAL R. 79(O)).

105. Id. at 243 (emphasis added).

106. Id. (citing Justak v. Bochnowski, 391 N.E.2d 872, 877 (Ind. Ct. App. 1979)).

107. Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 688-89 (Ind. Ct. App. 2006) (citing

Strauser v. Westfield Ins. Co., 827 N.E.2d 1181, 1185 (Ind. Ct. App. 2005)).

108. 846 N.E.2d at 683.

109. Id. at 689 (citing Anderson v. Dean Witter Reynolds, Inc., 920 P.2d 575, 579 (Utah Ct.

App. 1996); Andres v. McNeil Co., 707 N.W.2d 777, 786 (Neb. 2005); Troum v. Newark Beth

Israel Med. Ctr., 768 A.2d 177 (N.J. Super. Ct. App. Div. 2001)).

110. 662 N.E.2d 945 (Ind. 1996).

111. Perryman, 846 N.E.2d at 688.

112. Id. at 689.

court in Enterprise evaluated whether a request for a permanent injunction is an

“emergency matter” within the meaning of Trial Rule 79(O), which provides

“[n]othing in [Rule 79] shall divest the original court and judge of jurisdiction

to hear and determine emergency matters between the time a motion for change

of judge is filed and the appointed special judge accepts jurisdiction.” Based

104

primarily on a comparison of the appellate implications of preliminary and

permanent injunctions, the court in Enterprise concluded that “a permanent

injunction is not an emergency matter.” As such, the court held that “the trial

105

court did not have jurisdiction to enter [the] permanent injunction after it had

already granted the . . . change of judge motion.”

106

B. Statute of Limitations

1. Discovery Rule.—The “discovery rule,” as it relates to the accrual of a

statute of limitations, “provides that a cause of action accrues when a party

knows or in the exercise of ordinary diligence could discover, that [a] contract

has been breached or that an injury had been sustained as a result of the tortious

act of another.” In Perryman v. Motorist Mutual Insurance Co., the court

107 108

held that “the discovery rule only postpones the statute of limitations by belated

discovery of key facts and not by delayed discovery of legal theories.”

109

Specifically, the plaintiff in Perryman argued that his cause of action—an

insurance coverage action based on a pollution exclusion in the policy—did not

accrue when he became aware of his “injury,” in March 1994, but instead it

accrued “in 2004 when he became aware of [the Indiana Supreme Court’s]

decision in American States Insurance Co. v. Kiger, adopting, as an issue of

110

first impression, the rule that an absolute pollution exclusion in an insurance

policy … is ambiguous and unenforceable.” In other words, the plaintiff in

111

Perryman claimed that, although he was aware of his “injury,” he was unaware

“of the purported accrual of his injury’s legal ramifications” until after he learned

of the supreme court’s Kiger decision in 2004 (i.e., approximately eight years

after the Kiger decision was rendered). In that regard, the plaintiff requested

112

“an expansion of the discovery rule to, not only awareness of a sustained injury,

2007] CIVIL PROCEDURE 719

113. Id.

114. Id.

115. Id. (citing Healy v. Owens-Illinois, Inc., 833 N.E.2d 906, 910 (Ill. App. Ct. 2005); Clare

v. Saberhagen Holdings, Inc., 123 P.3d 465, 468 (Wash. Ct. App. 2005); McIntosh v. Blanton, 164

S.W.3d 584, 586 (Tenn. Ct. App. 2005)).

116. Id. (quoting Mitchell v. Holler, 429 S.E.2d 793, 795 (S.C. 1993)). “Stated more

succinctly, the law does not require a smoking gun in order for the statute of limitations to

commence.” Id. (citing Giraud v. Quincy Farm & Chem., 6 P.3d 104, 109 (Wash. Ct. App. 2000)).

117. Id. at 690. The court in Perryman also ruled that the defendant was not equitably

estopped from asserting the statute of limitations as a defense, due to its alleged “fraudulent

concealment” of the change in the law resulting from the supreme court’s decision in Kiger. Id. at

691. Specifically, the court in Perryman declined to impose a duty to inform an insured plaintiff

of a published decision, because the decision “was a matter of public record, equally available and

accessible to [the insured].” Id. The court described its rationale for refraining from imposing such

but also knowledge of his legal causes of action.”

113

Rejecting the plaintiff’s argument, the court in Perryman described the

general purpose of a statute of limitation as follows:

Statutes of limitation find their justification in necessity and convenience

rather than in logic. They represent expedients, rather than principles.

They are practical and pragmatic devices to spare the courts from

litigation of stale claims, and the citizen from being put to his defense

after memories have faded, witnesses have died or disappeared, and

evidence has been lost.

114

Recognizing that no Indiana cases supported its conclusion that the discovery

rule does not encompass knowledge of a legal cause of action, the court in

Perryman looked to foreign decisional authority:

[A] review of foreign case law supports our conclusion that the

application of the discovery rule does not mandate that plaintiffs know

with precision the legal injury that has been suffered, but merely

anticipates that a plaintiff be possessed of sufficient information to cause

him to inquire further in order to determine whether a legal wrong has

occurred.

115

The court in Perryman concluded that:

The exercise of reasonable diligence means simply that an injured party

must act with some promptness where the acts and circumstances of an

injury would put a person of common knowledge and experience on

notice that some right of his has been invaded or that some claim against

another party might exist. The statute of limitations begins to run from

this point and not when advice of counsel is sought or a full blown

theory of recovery developed.

116

The court held that “the discovery of an injury, not the development of new

case law, commences the running of the statute of limitations.” In other words,

117

720 INDIANA LAW REVIEW [Vol. 40:705

an affirmative duty as follows:

By now attempting to shift responsibility of his duty to be aware of the law, [the

insured] would have us not only create a new burden on insurance companies to keep

abreast of developments in claims that have been rejected already but which are still

viable within the statute of limitations’ term, but also reward plaintiffs who fail to

diligently research Indiana law within the statute of limitations term in order to timely

bring a claim. This we will not do.

Id.

118. 849 N.E.2d 706 (Ind. Ct. App. 2006).

119. I

ND. CODE § 34-11-8-1 (2004). The Journey’s Account Statute states, in relevant part:

(a) This section applies if a plaintiff commences an action and:

(1) the plaintiff fails in the action from any cause except negligence in

the prosecution of the action;

. . . .

(b) If subsection (a) applies, a new action may be brought not later than . . . .

(1) three (3) years after the date of the determination under subsection (a);

. . . .

and be considered a continuation of the original action commenced by the plaintiff.

Id. (emphasis added).

120. Basham, 849 N.E.2d at 711; see also Cox v. Am. Aggregates Corp., 684 N.E.2d 193, 195

(Ind. 1997) (“[T]he [Journey’s Account Statute] enables an action dismissed for lack of personal

jurisdiction in one state to be refiled in another state despite the intervening running of the statute

of limitations.”).

121. Basham, 849 N.E.2d at 708.

122. Id.

123. Id.

124. Id.

the statute of limitations accrues upon knowledge of the pertinent facts—not

upon discovery of the relevant case law or legal theory.

2. Journey’s Account Statute.—In Basham v. Penick, the court analyzed

118

the circumstances in which the “Journey’s Account Statute” applies to save an

119

otherwise time-barred lawsuit (which was originally filed in another improper

jurisdiction) and held that “the timeliness of the original filing [in the wrong

jurisdiction] is measured by [the subsequent, proper jurisdiction’s] statute of

limitations, not that of the foreign jurisdiction in which [the] complaint was

erroneously filed.”

120

In Basham, two parties—an Indiana resident and a Kentucky resident—were

involved in an automobile accident. Two years after the date of the accident,

121

the Kentucky resident filed a complaint in Kentucky state court, alleging

negligence resulting in both personal and property injuries. The

122

defendant—the Indiana resident—moved for and was granted a dismissal for lack

of personal jurisdiction. “At the time the Kentucky court dismissed [the] suit,

123

the Indiana statute of limitations on personal and property injury actions [i.e., two

years] had run.”

124

Months later, the Kentucky plaintiff filed a complaint against the Indiana

2007] CIVIL PROCEDURE 721

125. Id.

126. Id.

127. Id. at 708-09.

128. Id. at 711 (citations omitted).

129. Id.

130. Id.

131. 192 F. Supp. 955 (N.D. Ind. 1961).

132. Basham, 849 N.E.2d at 711 (discussing Abele, 192 F. Supp. at 955).

133. Id.

134. Id. at 711-12.

defendant in Indiana state court, again alleging both personal and property

damages. The defendant moved for judgment on the pleadings, arguing that

125

the action was time-barred. The trial court granted the defendant’s motion and

126

the plaintiff appealed, arguing that the Journey’s Account Statute applied “to

save her otherwise time-barred action.”

127

The “unique factual situation presented by the [Basham] case” results from

the fact that in Kentucky, “the statute of limitations for injury to one’s person is

one year.” In Basham, the original complaint “was untimely filed at least in

128

part according to the applicable statute of limitations of the foreign jurisdiction

in which [it was] erroneously filed, but would have been timely filed according

to the applicable statute of limitations under Indiana law.” The court in

129

Basham, therefore, was required to decide “whether the timeliness of [the

plaintiff’s] complaint [was] resolved according to Kentucky law [where the claim

was originally filed], or, conversely, according to Indiana law.”

130

The court in Basham followed the analysis utilized by the Indiana federal

district court in Abele v. A.L. Dougherty Overseas, Inc., which found that a

131

“plaintiff should be protected by the Journey’s Account Statute because [the]

original . . . [untimely] action would have been timely if filed in [the proper

jurisdiction].” The court in Basham stated that “for purposes of the Journey’s

132

Account Statute, the timeliness of the original filing is measured by Indiana’s

statute of limitations, not that of the foreign jurisdiction in which a complaint

was erroneously filed.” Thus, the court in Basham explained, the plaintiff’s

133

“personal injury claim, untimely filed in Kentucky, would have been timely had

it been filed in Indiana.” Reasoning that the defendant “had timely notice,

134

under applicable Indiana law, that [the plaintiff] intended to maintain her rights

before the courts” and considering the “broad and liberal purpose of the

Journey’s Account Statute, and the Supreme Court’s admonition that the statute

not be narrowly construed,” the court in Basham held as follows:

[U]nder the facts of this case, the timeliness of [the plaintiff’s] original

complaint [filed in Kentucky], for purposes of the Journey’s Account

Statute, is determined by Indiana’s statute of limitations. [The

plaintiff’s] original claim for personal injuries, therefore, was timely,

and in that respect did not fail for negligence in prosecution of the

722 INDIANA LAW REVIEW [Vol. 40:705

135. Id. at 712. The court in Basham also rejected the defendant’s argument that the plaintiff

filed the original action in “bad faith” and “with knowledge of the lack of jurisdiction[.]” Id. at

712-13.

136. 842 N.E.2d 822 (Ind. Ct. App. 2005), trans. denied, 855 N.E.2d 1010 (Ind. 2006).

137. Id. at 826. Indiana Trial Rule 15(C) provides, in relevant part, as follows:

An amendment changing the party against whom a claim is asserted relates back if the

. . . within one hundred and twenty (120) days of commencement of the action, the party

to be brought in by amendment: (1) has received such notice of the institution of the

action that he will not be prejudiced in maintaining his defense on the merits; and (2)

knew or should have known that but for a mistake concerning the identity of the proper

party, the action would have been brought against him.

ND. TRIAL R. 15(C). Rule 15(C) was amended effective April 1, 2002 and “gives a party

attempting to have their amended complaint relate back to their original complaint an additional

120 days in which to give notice of the institution of the action.” Coley, 842 N.E.2d at 825 n.2

(“The prior version of the rule allowed relation back if the requirements were met ‘within the period

provided by law for commencing the action against him.’”). The court in Coley was unaware of any

prior Indiana cases applying the revised Rule. Id. at 825.

138. Coley, 842 N.E.2d at 823. Because the plaintiffs’ cause of action involved personal

injuries, the applicable statute of limitations was two years. Id. at 824 (citing I

ND.CODE § 34-11-2-

4 (2004)).

139. Id. at 823.

140. Id.

141. Id. at 825.

action.

135

3. Relation Back Doctrine.—In Crossroads Service Center, Inc. v. Coley,

136

the court held that a plaintiff’s amended complaint did not “relate back” to the

date of the original complaint, because the new defendant added via the

amendment—“a completely different corporation”—did not know of the claim

until it received the amended complaint, “which was after the 120 days [after

commencement of the action] had passed.” On December 24, 2002, the

137

plaintiffs in Coley filed their original complaint, alleging premises liability for

injuries incurred at a truck stop/service center on December 27, 2000.

138

Subsequently, the plaintiffs learned that the named defendant did not own the

premises and that, in fact, the premises were owned by a completely different,

unaffiliated entity. On April 29, 2003, the plaintiffs filed their amended

139

complaint naming the true owner of the premises as the defendant. The amended

complaint was served on the new defendant on May 10, 2003.

140

The new defendant moved for summary judgment, alleging via affidavits of

the defendant company’s registered agent and its manager/accountant, that it had

no knowledge of the claim until it was served with the amended complaint—i.e.,

137 days after the original complaint was filed. Because the plaintiff “failed

141

to designate any evidence which would contradict [the defendant’s] assertions

and would create a genuine issue of material fact necessary to defeat a motion for

2007] CIVIL PROCEDURE 723

142. Id. at 826.

143. Id.

144. 852 N.E.2d 1035 (Ind. Ct. App. 2006), trans. granted, (Ind. May 21, 2007).

145. Id. at 1036.

146. Id. (emphasis added).

147. Id. at 1038-39.

148. Id. at 1039-40.

149. Id. at 1040.

150. Id.

151. Id.

152. Id.

153. Id. (discussing In re Lawrance, 579 N.E.2d 32, 37 (Ind. 1991)).

summary judgment[,]” the court in Coley held that the plaintiffs failed to

142

establish the “third requirement of Trial Rule 15(C), and the amended complaint

[could] not relate back.”

143

C. Mootness—Public Interest Exception

In Jones v. Womacks, the plaintiff, an individual who rented property

144

within a school district, brought an action against the county auditor, claiming

that a statute governing petition and remonstrance procedures for building

projects proposed by political subdivisions was unconstitutional. Specifically,

145

the plaintiff claimed that the petition/remonstrance procedure violated the Equal

Protection Clause of the Fourteenth Amendment to the United States

Constitution, because it “restricts the right to participate in the

petition/remonstrance process to owners of real property living within the

political subdivision.” The parties entered into a “Stipulation in Lieu of

146

Preliminary Injunction,” which provided that the plaintiff would be allowed to

sign a petition or remonstrance, which would then be sealed and would remain

sealed unless and until the procedure resulted in a tie. After the process (which

147

did not result in a tie) was completed, the parties filed cross-motions for

summary judgment, the court denied the plaintiff’s motion and granted the

defendant’s motion, and, on appeal, the State of Indiana intervened to address the

constitutionality of the statute. On appeal, however, the State of Indiana

148

argued only that “the matter is moot and should not be addressed.”

149

Recognizing that the case was moot “[i]n the true sense of the word,” the

150

court in Womacks explained that “although moot cases are usually dismissed,

Indiana courts have long recognized that a case may be decided on its merits

under an exception to the general rule when the case involves questions of ‘great

public interest.’” “Cases found to fall within this ‘public interest exception’

151

typically contain issues likely to recur.” The court in Womacks noted that

152

“earlier cases from this court [erroneously] had declared that an additional

element was required to resolve a moot case on its merits: that the case must be

likely to evade review.” In other words, a case need not be “likely to evade

153

review” under Indiana’s public interest exception to the mootness doctrine,

724 INDIANA LAW REVIEW [Vol. 40:705

154. Id. The court in Womacks explained that the federal standard—premised on Article III

of the United States Constitution, limiting the jurisdiction of federal courts to “actual cases and

controversies”—is stricter than the Indiana standard. Id. (“[T]he Indiana Constitution contains no

similar restraint.”).

155. Id. at 1041.

156. Id.

157. Id.

158. Id.

159. Id. at 1043-44 & n.6.

160. Id. at 1044.

161. Id.

162. Id.

163. Id. at 1050.

164. Id. Recognizing that the case was moot and declining to “overstep [its] judicial role and

attempt to re-draft [the statute,]” the court in Womacks stayed the effectiveness of its holding to

allow the Indiana General Assembly an opportunity to “redraft or otherwise remedy the

inadequacies of the [statute].” Id.

which, according to the court in Womacks is less stringent than the federal

standard.

154

Among other things, the State argued that the plaintiff “effectively was

allowed to participate[,]” because he was allowed to sign a petition or

remonstrance pursuant to the parties’ stipulation. The court disagreed, stating

155

that “what [the plaintiff] was allowed to do by filing his sealed signature with the

trial court was akin to filing a provisional ballot.” Analogizing the disputed

156

procedure to an election, the court stated that “the fact that the election was not

close enough to be changed by the provisional ballots would not alter that the

voters in the subset were denied their right to actually participate in the

election.” According to the court in Womacks, the plaintiff “seeks the right to

157

participate, not change the ultimate result.”

158

Distinguishing cases in which “challenges were brought regarding elections,

but Indiana appellate courts dismissed the cases as moot where the elections had

been completed before the appellate cases were decided[,]” the court explained

159

that the particular issue in those cases “was unlikely to repeat, and addressing the

merits even under a public interest exception would have been of little use.”

160

The court concluded that “the issue before [it]—whether those who do not own

real property may participate in the petition/remonstrance process—is of great

public importance.” The court, therefore, exercised its discretion to address

161

the appeal on its merits.

162

Ultimately, the court in Womacks found that the petition/remonstrance

procedure at issue amounts to a “de facto election or referendum.” As such,

163

the court held that “the State may not limit the right to participate to only those

who own real property within the political subdivision without a showing of a

compelling state interest . . . [which] has not been made here.”

164

The Indiana Supreme Court has granted transfer in Womacks, but as of the

date of this publication, a decision has not yet been rendered.

2007] CIVIL PROCEDURE 725

165. 856 N.E.2d 713 (Ind. Ct. App. 2006), trans. denied, (Ind. Feb. 22, 2007).

166. Id. at 715-16.

167. Id. at 715.

168. Id.

169. Id.

170. Id. at 715-16.

171. Id. at 716.

172. Id. (citing I

ND. TRIAL R. 13).

173. Id. at 716-17 (quoting I

ND. TRIAL R. 13).

174. Id. at 716 (emphasis added) (citing Berkemeier v. Rushville Nat’l Bank, 459 N.E.2d

1194, 1199 (Ind. Ct. App. 1984); Hunter v. Milhous, 305 N.E.2d 448, 452 (Ind. Ct. App. 1973)).

175. Id. at 717 (citing I

ND. TRIAL R. 6(C)).

D. Res Judicata

1. Claim Preclusion and Compulsory Counterclaims.—In Huber v. United

Farm Family Mutual Insurance Co., the plaintiff, a business owner, filed a

165

complaint alleging breach of contract, breach of the duty of good faith and fair

dealing and fraud against his insurer relating to the conduct of a prior appraisal

proceeding conducted to resolve a fire damages claim. Specifically, in

166

connection with the prior appraisal proceeding, the parties were required to

appoint an “umpire” to resolve any disputes regarding the appraisal. The

167

insurer filed a petition to appoint the umpire with the Montgomery Circuit

Court. The court appointed an umpire and, later, the plaintiff began to suspect

168

that the umpire was not acting impartially. An appraisal was issued, the

169

appraisal proceeding was concluded and the plaintiff’s action against the insurer

followed.

170

The trial court concluded that the plaintiff’s claims were barred by the

doctrine of res judicata, because the claims “could have been brought in the

previous proceeding.” On appeal, in reversing the trial court’s decision, the

171

court in Huber explained that the plaintiff “is not barred from bringing those

claims unless they were compulsory counterclaims in the earlier proceedings.”

172

The court in Huber quoted Trial Rule 13, which distinguishes compulsory and

permissive counterclaims, as follows:

[A party must raise] any claim which at the time of serving the pleading

the pleader has against any opposing party, if it arises out of the

transaction or occurrence that is the subject-matter of the opposing

party’s claim and does not require for its adjudication the presence of

third parties of whom the court cannot acquire jurisdiction.

173

However, the court recognized that “a claim that accrues after a responsive

pleading is not a compulsory counterclaim[.]”

174

Assuming the plaintiff (the business owner) was served in the prior appraisal

proceeding on April 14, 2003, “and that a responsive pleading was required, [the

plaintiff] had twenty days from that time to respond.” Thus, any responsive

175

726 INDIANA LAW REVIEW [Vol. 40:705

176. Id.

177. Id.

178. Id.

179. Id. The court in Huber also held that the issues raised by the plaintiff were not barred by

res judicata, because the court in the first proceeding was “simply called upon to appoint an

umpire.” Id. The court was not asked to and “did not render any judgment as to [the umpire’s]

impartiality.” Id. Because no “final judgment on the merits” was issued on the impartiality issue,

issue preclusion did not apply. Id.

180. 849 N.E.2d 1170 (Ind. Ct. App. 2006).

181. Id. at 1175.

182. Id. at 1172.

183. Id.

184. Id. at 1172-73.

185. Id. at 1172.

186. Id. at 1173.

187. Id. (citing Richter v. Asbestos Insulating & Roofing, 790 N.E.2d 1000, 1002-03 (Ind. Ct.

pleading would have been due on May 5, 2003. According to the plaintiff’s

176

affidavit, “he did not become concerned about [the umpire’s] impartiality until

June 20.” The court in Huber held that because the plaintiff’s “claim did not

177

exist at the time when a responsive pleading would have been due [in the prior

matter] . . . it [was] not a compulsory counterclaim under Trial Rule 13.” As

178

such, the claims were not “barred by the doctrine of res judicata.”

179

2. Successive Foreclosure Claims Not Barred by Res Judicata.—In an

apparent matter of first impression, the court in Afolabi v. Atlantic Mortgage &

Investment Corp. held that a second foreclosure action premised on subsequent

180

defaults under a promissory note and mortgage was not barred by res judicata,

where a prior foreclosure action, premised on separate, prior defaults, was

dismissed for failure to prosecute. In Afolabi, the first foreclosure action was

181

dismissed pursuant to Trial Rule 41(E) for failure to prosecute. After

182

additional “defaults,” a second foreclosure action was filed. The defendant

183

moved to dismiss, arguing that the Rule 41(E) dismissal of the previous

foreclosure action, which was based on the same note and mortgage, was barred

by the doctrine of res judicata. The trial court denied the motion to dismiss

184

and the defendant appealed.

185

The court in Afolabi explained that for claim preclusion to apply, four

requirements must be met:

The former judgment must have been rendered by a court of

competent jurisdiction;

2. The former judgment must have been rendered on the merits;

3. The matter now in issue was, or could have been, determined in the

prior action; and

4. The controversy adjudicated in the former action must have been

between the parties to the present suit or their privies.

186

In addition, “a dismissal with prejudice constitutes a dismissal on the merits.”

187

2007] CIVIL PROCEDURE 727

App. 2003)).

188. Id.

189. Id. at 1175.

190. Id.

191. Id. at 1176.

192. Id. at 1175-76.

193. Id. at 1176.

194. Id.

195. 842 N.E.2d 879 (Ind. Ct. App. 2006).

Further, the court explained, “a dismissal with prejudice is conclusive of the

rights of the parties and is res judicata as to any questions that might have been

litigated.”

188

The court in Afolabi held that “the claim preclusion part of the doctrine of

res judicata does not bar successive foreclosure claims, regardless of whether or

not the mortgagee sought to accelerate payments on the note in the first claim.”

189

The court explained that “the subsequent and separate alleged defaults under the

note created a new and independent right in the mortgagee to accelerate payment

on the note in a subsequent foreclosure action.”

190

Further, the court in Afolabi held that issue preclusion, or collateral estoppel,

did not apply to bar the subsequent foreclosure action. The court described the

191

law of issue preclusion as follows:

Issue preclusion, or collateral estoppel, bars the subsequent litigation of

a fact or issue that was necessarily adjudicated in a former lawsuit if the

same fact or issue is presented in a subsequent lawsuit. . . . However, the

former adjudication will only be conclusive as to those issues that were

actually litigated and determined therein. Collateral estoppel does not

extend to matters that were not expressly adjudicated and can be inferred

only by argument. In determining whether to allow the use of collateral

estoppel, the trial court must engage in a two-part analysis: (1) whether

the party in the prior action had a full and fair opportunity to litigate the

issue and (2) whether it is otherwise unfair to apply collateral estoppel

given the facts of the particular case.

192

The court held that “[b]ecause the [prior foreclosure] action was dismissed with

prejudice pursuant to [Trial Rule 41(E)] for failure to prosecute the claim, no

issue was actually litigated.” Therefore, issue preclusion did not apply to bar

193

the litigation of the second foreclosure action.

194

E. Motion to Intervene

In Allstate Insurance Co. v. Keltner, the court clarified that a hearing is not

195

required on a Trial Rule 24 petition to intervene:

It is true that in one opinion decided some time ago, this court held that

although a party seeking intervention had not requested a hearing, the

trial court committed reversible error by not holding a hearing on the

728 INDIANA LAW REVIEW [Vol. 40:705

196. Id. at 882 (quoting Lawyers Title Ins. Corp. v. C & S Lathing & Plastering Co., 403

N.E.2d 1156, 1160 (Ind. Ct. App. 1980)).

197. Id.

198. Id. (citing United of Omaha v. Hieber, 653 N.E.2d 83, 88 (Ind. Ct. App. 1995)).

199. Id. (citing GKC Ind. Theatres, Inc. v. Elk Retail Investors, LLC, 764 N.E.2d 647, 651

(Ind. Ct. App. 2002)).

200. Id.

201. Id.

202. Id.

203. 851 N.E.2d 317 (Ind. Ct. App. 2006).

204. Id. at 319.

205. Id. at 320.

206. Id. at 321.

207. Id. “Through its appeal of the trial court’s imposition of sanctions, [the insurer] also

petition to intervene in light of the legal and factual questions in this

case . . . .

196

In declining to rule that Rule 24 motions require a hearing, the court in Keltner

noted that “nothing in Trial Rule 24 requires any type of hearing.” Second,

197

“the facts alleged in a petition to intervene must be taken as true and the decision

on a motion to intervene turns on the sufficiency of the claim asserted.” Third,

198

the court reasoned that “allowing a party on appeal to request and obtain relief

not asked of the trial court [e.g., a hearing] would contravene the axiomatic

principle that an argument or issue not presented to the trial court generally is

waived.” Finally, the court determined that, due to the “substantial briefing”

199

of the relevant issues by the parties, “it does not appear . . . that a hearing was

required to address any outstanding factual issues.” In other words, the trial

200

court “was adequately informed on [the relevant] issues.” Therefore, the court

201

in Keltner concluded that no hearing was required on the “petition to intervene

in the absence of a request by one of the parties to do so.”

202

F. Discovery—Intentional Violation of Discovery Order as a

Means to Immediate Appellate Review

In Allstate Insurance Co. v. Scroghan, the plaintiff moved to compel

203

various discovery in connection with his bad faith action against his automobile

insurer, resulting in a “hotly contested battle” over the requested discovery.

204

Following an order compelling the production of documents that the insurer

believed to be privileged, the insurer reiterated its objection, stating that it would

“defer production of such protected documents that it believes should be

protected by the request for a protective order until it has exhausted all avenues

of appeal.” The trial court ultimately sanctioned the insurer for failing to

205

comply with its discovery order and ordered it to pay $10,000.

206

The insurer then appealed the trial court’s order pursuant to Rule 14(A) of

the Indiana Rules of Appellate Procedure, which “allows an interlocutory appeal

as of right of orders requiring the payment of money.” The insured argued that

207

2007] CIVIL PROCEDURE 729

request[ed] that [the court of appeals] review the underlying [d]iscovery [o]rder.” Id. at 322.

208. Id. at 322.

209. Id. (citing Marrese v. Am. Acad. of Orthopaedic Surgeons, 726 F.2d 1150, 1157 (7th Cir.

1984)).

210. Id. (citing Marrese, 726 F.2d at 1157).

211. Id.

212. Id.

the court of appeals “should not consider the [merits or substance of the trial

court’s discovery order] because [the insurer] intentionally engaged in

misconduct, i.e., failing to comply with the trial court’s [order] in the hopes of

being monetarily sanctioned, thus allowing an interlocutory appeal as of right.”

208

The court in Scroghan explained that “[w]hile we do not condone the

practice of intentionally violating discovery orders to obtain appellate review of

those orders, we recognize that such a practice can act as an important ‘safety

valve,’ which relieves parties from generally non-appealable discovery orders.”

209

Recognizing that “no Indiana case law” has specifically addressed “the propriety

of this method of obtaining [appellate] review,” the court in Scroghan noted that

the Seventh Circuit Court of Appeals effectively explained it as follows:

Confining the right to get appellate review of discovery orders to cases

where the party against whom the order was directed cared enough to

incur a sanction for contempt is a crude but serviceable method, well

established in case law, of identifying the most burdensome discovery

orders and in effect waiving the finality requirements for them.

210

The court in Scroghan concluded that “while we certainly do not encourage

parties to intentionally violate a discovery order so as to be sanctioned and thus

obtain an interlocutory appeal as of right, we can see the narrow situations, such

as this one, where such as strategy may be utilized.” The court recognized the

211

limited options available to a party in the position of the insured in this case:

A party in [the insured’s] position has few options since complying with

the court’s discovery order, proceeding through a trial, and ultimately

winning on appeal would be a hallow victory indeed when the

information sought to be protected would then already have been

disclosed. In such situations, if a party is willing to incur possibly

serious sanctions to obtain review of a discovery order, then the option

should be available.

212

In short, according to the court in Scroghan, a party may intentionally violate

a discovery order and, if a monetary sanction is imposed, obtain immediate

appellate review of the interlocutory discovery order, including the “substance

and merits” of the order.

730 INDIANA LAW REVIEW [Vol. 40:705

213. 837 N.E.2d 161 (Ind. Ct. App. 2005).

214. Id. at 165-66.

215. Id. at 163.

216. Id.

217. Id.

218. Id. at 163-64.

219. Id. at 165. The court reasoned that neither party designated or relied on materials outside

the pleadings and the “trial court did not give the parties notice that it would be treating the matter

as one for summary judgment.” Id. at 164 (citing I

ND. TRIAL R. 12(B)(8)) (noting that a trial court

treating a motion to dismiss for failure to state a claim as one for summary judgment “shall” give

the parties reasonable opportunity to present all pertinent material); Kolley v. Harris, 553 N.E.2d

164, 167 (Ind. Ct. App. 1990) (holding that grant of summary judgment was erroneous because trial

court did not provide parties with notice that it intended to treat the motion as one for summary

judgment)).

220. Id. at 165 (internal citation omitted).

G. Judgment on the Pleadings

In Fox Development, Inc. v. England, the court of appeals, deciding an

213

apparent issue of first impression in Indiana, affirmed the trial court’s order

granting the defendants’ Rule 12(C) motion for judgment on the pleadings, where

the plaintiff—suing on an alleged oral contract—failed to anticipate the

defendants’ statute of frauds affirmative defense by pleading exceptions to the

statute in its complaint.

214

In England, prospective purchasers of a home under construction expressed

an interest in the home to the builder, but never executed a purchase agreement

that had been prepared. Nevertheless, the builder made improvements to the

215

home based on the prospective purchasers’ preferences. The prospective

216

purchasers subsequently informed the builder that they had purchased another

home, the builder demanded $10,000 in earnest money (which was provided in

the unexecuted purchase agreement), the purchasers refused to pay and the

builder sued. The trial court granted the prospective purchasers’ motion for

217

judgment on the pleadings and the builder appealed, contending that the trial

court should have treated the motion as one to dismiss under Rule 12(B)(6) or for

summary judgment under Rule 56, as well as arguing the merits of the Rule

12(C) motion.

218

After concluding that the trial court properly treated the motion as one for

judgment on the pleadings, the court in England described the “test” to be

219

applied in evaluating a Rule 12(C) motion:

The test to be applied when ruling on a Rule 12(C) motion is whether,

in the light most favorable to the non-moving party and with every

intendment regarded in his favor, the complaint is sufficient to constitute

any valid claim. In applying this test, we may look only at the pleadings,

with all well-pleaded material facts alleged in the complaint taken as

admitted, supplemented by any facts of which the court will take judicial

notice.

220

2007] CIVIL PROCEDURE 731

221. Id.

222. Id. (citing Dupont Feedmill Corp. v. Standard Supply Corp., 395 N.E.2d 808, 810 (Ind.

Ct. App. 1979)).

223. Id. at 166.

224. Id.

225. Id.

226. Id.

227. Id.

228. Id.

229. Id.

230. Id.

231. 855 N.E.2d 343 (Ind. Ct. App. 2006). The Reel decision was rendered October 18,

2006—just outside the current survey period. The ruling is included herein given its immediate

potential impact on class action litigation.

232. Id. at 356 (citing Christensen v. Kiewit-Murdock Inv. Corp., 815 F.2d 206, 214 (2d Cir.

The court agreed with the prospective purchasers’ assertion that the builder

“was required to plead exceptions to the statute of frauds [namely, part

performance and promissory estoppel] in its complaint in order to survive a

judgment on the pleadings.” Explaining that “[t]he statute of frauds does not

221

govern the formation of a contract but only the enforceability of contracts that

have been formed[,]” the court in England concluded “that the parties entered

222

into an oral contract for the sale of real estate.” However, the purchasers

223

“pleaded the statute of frauds as an affirmative defense with their answer.” On

224

appeal, the builder alleged that exceptions applied to remove its oral contract

from the statute of frauds, but did not plead any exceptions in its complaint.

225

Therefore, the issue was “whether [the builder] was required to plead an

exception to the statute of frauds in order to survive a motion for judgment on the

pleadings.”

226

The court explained that the “complaint alleged an oral contract for the sale

of real property, which on its face is unenforceable under the statute of frauds.”

227

The court stated that “it was incumbent upon [the builder] to anticipate in the

complaint, or to meet in an amended complaint, the [prospective purchasers’]

affirmative defense that the breach of contract claim was barred by the statute of

frauds.” Therefore, to overcome the statute (and the motion for judgment on

228

the pleadings), “the complaint or an amended complaint should have alleged

exceptions to the statute of frauds in order to survive a motion for judgment on

the pleadings.” The court of appeals held “that the trial court did not err when

229

it granted judgment on the pleadings in favor of the [prospective purchasers].”

230

H. Summary Judgment

1. Summary Judgment Prior to Class Certification.—In Reel v. Clarian

Health Partners, Inc., the court held as a matter of first impression that “Trial

231

Rule 23 does not preclude [a] trial court from hearing [a defendant’s] motion for

summary judgment before addressing the certification of the class.” In Reel,

232

732 INDIANA LAW REVIEW [Vol. 40:705

1987)).

233. Id. at 345.

234. Id.

235. Id. at 346.

236. Id.

237. Id. at 349 (citing In re Tina T., 579 N.E.2d 48, 55 (Ind. 1991)).

238. See id. at 349-55 (discussing Wright v. Schock, 742 F.2d 541, 543-44 (9th Cir. 1984)

(concluding that “[u]nder the proper circumstances—where it is more practicable to do so and

where the parties will not suffer significant prejudice—the district court has discretion to rule on

a motion for summary judgment before it decides the certification issue”); Katz v. Carte Blanche

Corp., 496 F.2d 747, 762 (3d Cir. 1974) (stating that “where [a defendant] . . . is willing to run the

risk that the determination of liability, if he loses, will be given effect in favor of the class, with

notice in the event of such determination, the district court must seriously consider that alternative,

and should, absent other compelling circumstances, pursue that course”); Ahne v. Allis-Chalmers

Corp., 102 F.R.D. 147, 151 (E.D. Wis. 1984) (recognizing that “while the general rule against pre-

certification review of the merits of a case remains the touchstone for resolving disputes like the

present, the courts have carved out a limited exception for those defendants willing to forego the

protections attendant on early determination of the class issue”); Postow v. OBA Fed. Sav. & Loan

Ass’n, 627 F.2d 1370, 1382 (D.C. Cir. 1980) (finding that “a defendant may waive the protections

Rule 23(c) offers and elect to have the merits decided before the class certification question and

before notice is sent to the class when, as here, the defendant moves for summary judgment before

resolution of the certification issue”); Haas v. Pittsburgh Nat’l Bank, 381 F. Supp. 801, 802-06

(W.D. Pa. 1974) (holding that “a district court may pass upon a motion for summary judgment prior

to passing upon a motion for class determination or requiring that notice be sent to an already

certified class”)). The court in Ahne explained the risks and benefits of the “limited exception” as

follows:

That exception . . . allows the defending party to exercise its option to waive the

safeguard of res judicata implicit in Rule 23’s requirement that the class question be

addressed “[a]s soon as practicable after the commencement of an action.” The risk to

the defendant is, of course, that if he loses on the liability issue, that result will be given

the defendant moved for summary judgment before a class certification

determination was reached. The trial court set a hearing on the defendants’

233

summary judgment motion and the plaintiffs responded by filing, among other

things, a motion to certify the trial court’s order setting the matter for a summary

judgment hearing for immediate interlocutory appeal and to stay proceedings

pending certification and appeal. The trial court certified the interlocutory

234

order for immediate appeal and stayed proceedings, and the court of appeals

accepted jurisdiction.

235

On appeal, the “sole issue [was] whether the trial court erred by setting a

hearing on [the defendant’s] motion for summary judgment before addressing

class certification.” The court, recognizing that because “Trial Rule 23 is

236

based upon Federal Rule of Civil Procedure 23,” and “it is appropriate for [the

court] to look at federal court interpretations of the federal rule when applying

the Indiana rule[,]” the court in Reel analyzed several federal court decisions

237

that had evaluated the issue.

238

2007] CIVIL PROCEDURE 733

effect as to a class of yet undefined numbers and composition; if he wins, he may still

face subsequent prosecution by other potential class members whose claims might be

barred only under the limited scope of the stare decisis doctrine.

Ahne, 102 F.R.D. at 151.

239. Reel, 855 N.E.2d at 355.

240. Id. at 355-56 (internal citations omitted).

241. Id. at 356.

242. 844 N.E.2d 502 (Ind. Ct. App. 2006).

243. Id. at 508.

244. Id. at 504.

245. Id.

246. Id.

247. Id.

248. Id.

The court in Reel stated that it found the reasoning of the federal court

decisions “persuasive and applicable to this case.” The court explained:

239

[w]hen [the defendant] moved for summary judgment, it abandoned

reliance on the preclusive effect of the judgment with respect to absent

members of the class and cannot complain about either the treatment of

the case as an individual action or the one way intervention that will

result if the class should be certified at a later time. If the trial court

grants [the defendant’s] motion for summary judgment, [the defendant]

is not protected by res judicata from suits by potential class members.

If the trial court denies [the defendant’s] motion for summary judgment,

the [plaintiffs] could still seek certification of the class.

240

The Indiana Court of Appeals affirmed the trial court’s order and set a

hearing on the defendant’s motion for summary judgment prior to a class

certification determination.

241

2. Designation of Evidence in Opposition to Multiple Motions.—In Rood v.

Mobile Lithotripter of Indiana, the court ruled—in opposition to one of two

242

co-defendants’ summary judgment motions—that the non-moving plaintiff could

not rely on evidentiary designations he filed in opposition to the second of the co-

defendants’ motions to avoid the entry of summary judgment on the first

defendant’s motion, in response to which no designations were timely filed.

243

The plaintiff in Rood was injured in October 1999 “as he was transported

into a mobile lithotripsy facility to treat kidney stones.” The plaintiff filed his

244

claim with “the medical review panel[, which] unanimously concluded that

neither the anesthesiologist, . . . nor [the hospital] failed to meet the applicable

standard of care.” Notwithstanding the adverse medical review panel opinion,

245

the plaintiff filed his complaint alleging negligence against both the

anesthesiologist and the hospital.

246

“The hospital filed a motion for summary judgment [premised] on the review

panel’s [opinion].” The anesthesiologist filed a separate summary judgment

247

motion days later. The plaintiff filed a timely response to the

248

734 INDIANA LAW REVIEW [Vol. 40:705

249. Id.

250. Id. at 506.

251. Id.

252. Id.

253. Id. (citation omitted)

254. Id. at 507 (arguing that “the trial court improperly allowed form to control over

substance” in that the response to the anesthesiologist’s motion was intended to be a response to

both summary judgment motions—i.e., that “this was simply a captioning error”).

255. Id.

256. Id. at 508.

257. Id.

258. 844 N.E.2d 206 (Ind. Ct. App. 2006).

259. Id. at 215-16.

260. Id. at 208.

anesthesiologist’s summary judgment motion, including certain “designated

evidence in support of his opposition to summary judgment.”

249

Approximately two weeks later, the hospital sent a letter to counsel for the

plaintiff, asking him to sign an agreed summary judgment entry due to the

plaintiff’s alleged failure to file a “specific response to [the hospital’s] motion

for summary judgment.” The plaintiff proceeded to file a “designation of

250

evidence in opposition to [the hospital’s] motion for summary judgment[,] . . .

[which] included the same evidence previously designated against [the

anesthesiologist].” The hospital filed a motion to strike the plaintiff’s

251

designation as untimely. The trial court granted both the hospital’s motion to

252

strike and its motion for summary judgment, ruling that the plaintiff “failed to

advance any expert testimony to contradict the opinion of the medical review

panel.”

253

On appeal, the plaintiff argued that its designations in response to the

anesthesiologist’s summary judgment motion should have been considered in

opposition to the hospital’s summary judgment motion. The Rood court

254

rejected the plaintiff’s argument, explaining that parties must “strictly comply

with the designated evidentiary matter requirement [of Rule 56(H)].” Because

255

the plaintiff failed to timely designate specific evidence in opposition to the

hospital’s summary judgment motion, the Rood court held that the plaintiff did

not satisfy the requirements of Trial Rule 56.

256

In short, the plaintiff’s “designation of evidence in opposition to [the

anesthesiologist’s] separate motion for summary judgment [was] simply

insufficient to serve as a designation of evidence in opposition to [the hospital’s]

motion for summary judgment.”

257

3. Designation of “Pleadings” Insufficient to Oppose Summary Judgment.—

In McDonald v. Lattire, the court ruled that allegations in a non-movant’s

258

pleadings did not constitute “designated evidence” sufficient to oppose a motion

for summary judgment. In particular, the plaintiff alleged negligence-based

259

claims against the defendant in connection with an automobile accident. The

260

defendant moved for summary judgment on the issue of whether he had to

2007] CIVIL PROCEDURE 735

261. Id. at 214.

262. Id.

263. Id.

264. Id. at 215.

265. Id. (emphasis in original) (citations omitted).

266. Id. The McDonald court also stated that the plaintiff was “free to depose [the defendant]

in the hopes of uncovering contradictory testimony.” Id. at 216. Instead, “there was a total absence

of evidence, expert or otherwise, that [the defendant] failed to maintain a proper lookout.” Id.

According to the court, whether someone maintained a proper lookout under any set of

circumstances would always create a question of fact. Id. Instead, “this particular case falls within

the small percentage of negligence cases appropriately decided on summary judgment.” Id.

267. 851 N.E.2d 968 (Ind. Ct. App. 2006), trans. granted, (Ind. Mar. 1, 2007).

268. Id. at 975.

269. Id. at 974.

“maintain a proper lookout” in connection with the incident and, if he did,

whether he breached that duty.

261

In opposition to the defendant’s summary judgment motion, the plaintiff

“submitted no additional evidence.” Instead, the plaintiff relied “upon her

262

complaint, which she asserts was designated by [the defendant].” According

263

to the court in McDonald, “allegations” contained in a complaint do not

constitute “testimony, affidavits, sworn statements, or evidence of any kind.”

264

The court explained:

[O]nce a movant has designated evidence to support a prima facie

showing that there are no genuine issues of material fact and that the

movant is entitled to judgment as a matter of law, the nonmovant may

not rest upon the mere allegations of her pleadings; instead, she must

designate to the trial court each material issue of fact which that party

asserts precludes entry of summary judgment and the evidence relevant

thereto.

265

According to the McDonald court, the non-moving party “should have sought

and submitted sworn affidavits from [its principals] if [it] wished to designate

their statements as evidence of a genuine issue of material fact precluding

summary judgment.”

266

4. “New” Evidence on Reconsideration.—In Liggett v. Young, the court

267

refused to consider new evidence offered by a third party plaintiff on

“reconsideration” of a prior order granting partial summary judgment in favor of

the third party defendant. The court rejected the third party plaintiff’s

268

argument that he “was unable to introduce [the new] evidence at the partial

summary judgment stage because the [third party defendants], who had all the

relevant information, filed a motion for partial summary judgment before the

information was revealed in discovery.” The court noted that the third party

269

defendants “did not file their motion immediately after the [third party plaintiff]

filed his complaint; to the contrary, they waited over two years to seek partial

736 INDIANA LAW REVIEW [Vol. 40:705

270. Id.

271. Id.

272. Id. (citing Harris v. Chern, 33 S.W.3d 741, 745 (Tenn. 2000)).

273. Id. at 975 (citation omitted).

274. Id. (citation omitted)

275. Id. (citation omitted). Ultimately, the court of appeals concluded that “the trial court

properly found that it could not consider new evidence” and affirmed the trial court’s entry of

partial summary judgment on the substantive issues involved. Id. at 978.

276. 848 N.E.2d 1157 (Ind. Ct. App. 2006).

277. Id. at 1161 (emphasis added).

278. Id. at 1159. Apparently, the Rule 56(I) motion was filed before the motion for summary

judgment was filed in an attempt to save the moving party the time and expense of preparing and

filing a motion that would not be heard and ruled upon before trial if the 56(I) motion was denied.

See id. at 1162-63 (concurring opinion) (arguing that, under the circumstances and “faced with a

difficult decision[,]” the trial court did not abuse its discretion in granting the pre-summary

judgment filing Rule 56(I) motion).

279. Id. at 1159.

summary judgment.” The court admonished that the third party plaintiff

270

“could—and should—have sought an extension to conduct discovery, but he

chose not to do so.” The court explained its reasoning as follows:

271

It was incumbent upon [the third party plaintiff] to provide evidence to

defeat summary judgment, and if he had no such evidence, then he

should have requested time to conduct discovery to develop that

evidence. Having failed to do so, he may not apply this evidence

retrospectively, regardless of its “importance” to his case. He is not

entitled to a second bite of this apple.

272

The court in Liggett explained that “Trial Rule 56(F) provides the procedure

to obtain additional time to develop evidence to oppose a motion for summary

judgment” and “no authority . . . would allow a party to designate ‘newly

273

developed evidence’ in an effort to circumvent the specific requirements of [Trial

Rule 56].” According to the court, “[t]o allow a party to attack a partial

274

summary judgment after it has been granted by designating further evidence and

raising additional issues would effectively nullify the provisions of Trial Rule

56.”

275

The Indiana Supreme Court has granted transfer in Liggett, but as of the date

of this publication, a decision has not yet been rendered.

5. Alteration of Rule 56 Deadlines.—In Logan v. Royer, the court of

276

appeals held that the trial court abused its discretion when it shortened the time

limit for a party to respond to a motion for summary judgment, pursuant to Trial

Rule 56(I), before the summary judgment motion had been filed. Just over one

277

month before the trial of a will contest, the decedent’s son filed a motion to

shorten the time allowed to respond to a summary judgment motion, pursuant to

Rule 56(I). The trial court granted the motion, allowing the non-moving party

278

fifteen days from the date of filing to respond to the motion. Subsequently,

279

2007] CIVIL PROCEDURE 737

280. Id.

281. Id. at 1160.

282. Id. For example, the court noted, “without the motion for summary judgment before it,

a trial court would be unable to consider the factual and legal complexity of the issues raised in the

motion and make an informed decision as to whether the issues could be adequately addressed in

a compressed time frame.” Id. at 1168 n.9.

283. Id. at 1160-61 (quoting B

LACK’S LAW DICTIONARY 1328 (7th ed. 1999)).

284. Id. at 1161.

285. 850 N.E.2d 940 (Ind. Ct. App. 2006).

286. Id. at 949.

287. Id. at 948.

288. Id.

289. Id. at 948-49. There was conflicting evidence regarding whether the trial court gave

counsel the option of rescheduling the hearing rather than proceeding with the hearing via cellular

phone. Id. at 949.

290. Id. at 949.

291. Id.

following certain disputes relating to discovery and other matters, the trial court

granted the son’s motion for summary judgment.

280

The Logan court stated that “[a]lthough [Rule 56(I)] does not specify when

a [Rule 56(I)] motion may be filed, it is axiomatic that before the time limits to

respond to a motion for summary judgment can be altered, a motion for summary

judgment must be filed.” According to the court, “[w]ithout the motion for

281

summary judgment before it, the trial court could not have properly evaluated

[the] 56(I) motion to determine whether alteration of time was appropriate.”

282

The court reasoned that “[f]or a case, or an issue in a case, to be ripe for review,

the facts must ‘have developed sufficiently to permit an intelligent and useful

decision to be made.’” According to the court in Logan, “[w]hen a [Rule

283

56(I)] motion is filed before the motion for summary judgment, there are ‘no

actual facts present upon which the Court can make a decision.’”

284

6. Summary Judgment Hearing by Cellular Phone.—In Bruno v. Wells

Fargo Bank, the court held that a party’s due process rights were not violated

285

when his attorney was required to participate in the hearing via cellular phone

due to confusion over the start time of a summary judgment hearing. In Bruno,

286

a “clerical error” led the non-movant’s counsel to believe that the summary

judgment hearing began at 9:30 a.m., but movant’s counsel was present on

287

time at 8:30 a.m. When non-movant’s counsel did not appear by 8:30 a.m., the

288

trial court contacted counsel on her cellular phone. The “hearing” was

289

conducted and both parties presented arguments, although apparently no

transcript was created.

290

Concluding that the summary judgment non-movant’s due process rights

were not violated by conducting the hearing via cellular phone, the court in

Bruno noted that the non-movant “was given notice of the hearing, as well as an

opportunity to present arguments to the trial court, albeit by cellular phone.”

291

The Bruno decision does not clarify whether the “clerical error” leading to the

738 INDIANA LAW REVIEW [Vol. 40:705

292. See id. at 944 (stating passively that “due to confusion concerning the time of the hearing,

[non-movant’s] counsel participated by cellular phone”).

293. 851 N.E.2d 368 (Ind. Ct. App. 2006).

294. Id. at 372.

295. Id. at 370-72 (discussing Dep’t of Natural Res. v. Van Keppel, 583 N.E.2d 161, 162 (Ind.

Ct. App. 1991); Bross v. Mobile Home Estates, Inc., 466 N.E.2d 467, 469 (Ind. Ct. App. 1984);

Kmart Corp. v. Englebright, 719 N.E.2d 1249, 1258 (Ind. Ct. App. 1999); Nwannunu v. Weichman

& Assoc., 770 N.E.2d 871, 879 (Ind. Ct. App. 2002)). As an initial matter, the court in Anderson

rejected the defendants’ argument that the court of appeals’ review should be de novo, because

“they [were] attacking the trial court’s legal conclusion—that a meritorious defense is absolutely

required to be shown before a default judgment may be set aside.” Id. at 370. In finding that the

appropriate standard of review is abuse of discretion, the court explained that “the trial court’s

discretion is broad in cases involving setting aside default judgments because of the unique factual

background of each case.” Id.

296. Id. at 370 (quoting I

ND. TRIAL R. 60(B)(1)).

297. Id. at 371.

298. Id.

confusion regarding the start time of the summary judgment hearing was that of

the court’s clerk or that of counsel for the non-movant. Arguably, a clerical

292

error by a trial court or its clerks should justify an exception to the otherwise

strict mandates of procedural rules, to the extent the error reasonably resulted in

a failure to adhere to a procedure or deadline. The Bruno decision also raises

implications regarding the definition of a “hearing,” as that term is used in Rule

56.

I. Motion to Set Aside Default Judgment

In Anderson v. State Auto Insurance Co., the court of appeals affirmed the

293

trial court’s ruling that the defendants were not entitled to relief from a default

judgment when they failed to make a proper showing of a “meritorious

defense.” In reaching its decision, the court in Anderson clarified that case law

294

had not “abrogated” the “meritorious claim or defense” requirement of Trial Rule

60(B)(1), as argued by the defendants. Trial Rule 60(B)(1) provides, in

295

relevant part, as follows:

On motion and upon such terms as are just the court may relieve a party

or his legal representative from an entry of default . . . , including a

judgment by default, for the following reasons: (1) mistake, surprise,

excusable neglect. . . . A movant filing a motion for reason (1) must

allege a meritorious claim or defense.

296

The court explained that “[p]rima facie evidence [of a meritorious defense]

. . . was not presented at the hearing [on the motion to set aside the default

judgment].” In fact, the court found from a review of the hearing transcript

297

that “there was no such evidence before the trial court.” The court of appeals

298

held that (1) case law has not abrogated the requirement of establishing a

2007] CIVIL PROCEDURE 739

299. Id. at 372; see also Ferguson v. Stevens, 851 N.E.2d 1028, 1031 (Ind. Ct. App. 2006) (“A

prima facie showing of a meritorious defense is evidence that, if credited, demonstrates that a

different result would be reached if the case were retried on the merits and that it is unjust to allow

the default to stand. It is one that will prevail until contradicted and overcome by other evidence.”).

The court in Ferguson found that the defendant’s testimony at the hearing on her motion to set

aside was sufficient to satisfy her burden of demonstrating a “meritorious defense” under Rule

60(B). Id. at 1031-32.

300. 835 N.E.2d 593 (Ind. Ct. App. 2005), trans. denied, 855 N.E.2d 1005 (Ind. 2006), appeal

after remand, 864 N.E.2d 1148 (Ind. Ct. App. 2007).

301. Id. at 594.

302. The trial court’s dismissal order did not specify whether it was being entered “with

prejudice” or “without prejudice.” Id. at 597. Trial Rule 41(E) provides, however, that unless

otherwise specified, a Rule 41(E) dismissal, “other than a dismissal for lack of jurisdiction, operates

as an adjudication upon the merits. Clearly, this means that unless the trial court indicates that the

dismissal is without prejudice, it must be deemed to be with prejudice.” Id. (citing Patton Elec. Co.,

Inc. v. Gilbert, 459 N.E.2d 1192, 1194 (Ind. Ct. App. 1984)). The court in Brewster concluded that

because “the order did not indicate that the dismissal was without prejudice[,] . . . it must be

deemed that the order . . . was a dismissal with prejudice.” Id.

303. Id. at 595 (citing I

ND. TRIAL R. 41(E)). The court in Brewster noted that

[i]n the past this process [of a court setting matters sua sponte for a Rule 41(E) hearing]

was often referred to as a call of the docket and was for the purpose of determining the

status of inactive cases. Depending upon the circumstances the court may set a trial

date, grant continuances, or dismiss the case.”

Id. at 595 n.3. Likewise, historically, a defendant’s motion to dismiss pursuant to Rule 41(E) was

“more likely to prompt a plaintiff to take action that it [was] to dispose of the case.” Michael A.

Dorelli, Recent Developments in Indiana Civil Procedure, 38 I

ND.L.REV. 920, 946 (2005) (stating

that the Indiana Court of Appeals’ decision in Lee v. Pugh, 811 N.E.2d 881 (Ind. Ct. App. 2004),

“provided a reminder that Rule 41(E) dictates the consequences of a plaintiff’s failure to pursue a

case, and that the court of appeals will question the trial court’s decision [dismissing a case under

Rule 41(E)] only if it finds an abuse of discretion”).

304. Brewster, 835 N.E.2d at 595-96.

meritorious defense in addition to excusable neglect in connection with a Rule

60(B)(1) motion to set aside a default judgment, and (2) “the trial court did not

err by concluding that [the defendants] were not entitled to relief for failure to

make a showing of a meritorious defense.”

299

J. Nunc Pro Tunc Orders

In Brimhall v. Brewster, the court addressed whether “a nunc pro tunc

300

order was properly used to set aside the dismissal of the [plaintiffs’]

complaint.” At the trial court level, the plaintiffs’ complaint was dismissed

301

with prejudice pursuant to Trial Rule 41(E). Almost one month later, despite

302 303

the order dismissing the complaint, the plaintiffs filed a verified application for

default judgment, which, after multiple attempts by at perfecting service of

process, was granted and entered by the trial court. Apparently, due to a

304

740 INDIANA LAW REVIEW [Vol. 40:705

305. Id. at 596.

306. Id.

307. Id. (“A dismissal without prejudice may be set aside for good cause shown and within a

reasonable time. On the other hand, a dismissal with prejudice may be set aside by the court for the

grounds and in accordance with the provisions of Rule 60(B).”).

308. Id.

309. Id. at 595.

310. Id. at 597 (citations omitted).

311. Id. (“A nunc pro tunc entry can not be used as the medium whereby a court can change

its ruling actually made, however erroneous or under whatever mistakes of law or fact such ruling

may have been made.”) (quoting Harris v. Tomlinson, 30 N.E. 214, 216 (Ind. 1892)).

312. Id. (citing Cotton v. State, 658 N.E.2d 898, 900 (Ind. 1995)).

“computer error,” the trial court did not realize the case had been dismissed until

more than one year later. Upon realization of the “computer error,” the trial

305

court issued two nunc pro tunc orders, providing, in essence, that (1) the Rule

41(E) dismissal was without prejudice, and (2) setting aside the dismissal.

306

On appeal, the defendants argued that when the trial court dismissed the

complaint pursuant to Rule 41(E), the dismissal was “with prejudice,” and, as

such, it “could not be reinstated without the filing of a Trial Rule 60(B)

motion.” Further, the defendants argued that “even though the [plaintiffs] filed

307

a motion for default judgment, the trial court could not use a nunc pro tunc entry

to amend the dismissal order.” The court of appeals agreed and reversed the

308

trial court’s rulings.

309

Practitioners do not frequently encounter situations in which a nunc pro tunc

entry is the appropriate relief or remedy. The court of appeals’ decision in

Brewster defined the unique relief and described the circumstances in which it

should be allowed:

A nunc pro tunc order is “an entry made now of something which was

actually previously done, to have effect as of the former date.” A nunc

pro tunc entry may be used to either record an act or event not recorded

in the court’s order book or to change or supplement an entry already

recorded in the order book. The purpose of a nunc pro tunc order is to

correct an omission in the record of action really had but omitted through

inadvertence or mistake. However, the trial court’s record must show

that the unrecorded act or event actually occurred.

310

In other words, the trial court cannot utilize a nunc pro tunc entry to correct a

mistake recognized in hindsight. In addition, a “written memorial must form

311

the basis for establishing the error or omission to be corrected by the nunc pro

tunc order.” The court in Brewster explained that the requisite supporting

312

written material must meet four requirements. Namely, it:

(1) must be found in the records of the case; (2) must be required by law

to be kept; (3) must show action taken or orders or rulings made by the

court; and (4) must exist in the records of the court contemporaneous

2007] CIVIL PROCEDURE 741

313. Id. (quoting Stowers v. State, 363 N.E.2d 978, 983 (Ind. 1977)).

314. Id.

315. Id. at 598.

316. Id.

317. Id. The court in Brewster, apparently recognizing some injustice in its result, gratuitously

noted that “[i]t may well be appropriate for our Supreme Court to revisit the procedural matters

presented by cases such as this and to effect some fine tuning of the law.” Id.

318. 839 N.E.2d 746 (Ind. Ct. App. 2005), trans. denied, 855 N.E.2d 1011 (Ind. 2006).

319. Id. at 763.

320. Id. at 761 (quoting I

ND. TRIAL R. 42(C)).

321. Id. at 761-62 (citing Frito-Lay, Inc. v. Cloud, 569 N.E.2d 983, 990 (Ind. Ct. App. 1991)).

with or preceding the date of the action described.

313

In Brewster, the court concluded that the trial court’s action of “deeming the

dismissal to be without prejudice and allowing the proceedings to continue”

could not be validated, despite the appellate court’s “sympathetic” view toward

the “trial court’s attempt to rectify an apparent error.” The court explained the

314

rationale behind its “reluctant” decision to uphold the “written memorial”

requirement as follows:

[H]uman memory and recall is not perfect and some times will fail.

Thus, a written memorandum made at the time ensures a more accurate

basis for the later entry than does a mere recollection which may be

dimmed by the passage of time and colored or altered by intervening

events.

315

The court in Brewster held that the trial court “erred in entering the nunc pro

tunc order which deemed the dismissal to be without prejudice in order to

validate the later proceedings.” All rulings made after the date of the order

316

dismissing the plaintiffs’ complaint with prejudice were invalidated, “including

the default judgment entered in favor of the [plaintiffs] on their claim.”

317

K. Bifurcation of Trial

In Jamrosz v. Resource Benefits, Inc., the court held that the defendant

318

failed to show “good cause for bifurcating the issues of liability and damages [at

trial].” The bifurcation of issues of liability and damages is governed by Trial

319

Rule 42(C), which provides as follows: “The Court upon its own motion or the

motion of any party for good cause shown may allow the cause to be tried and

submitted to the jury in stages or segments including, but not limited to,

bifurcation of claims or issues of compensatory and punitive damages.” The

320

court in Jamrosz explained that “[w]hile the avoidance of prejudice is a more

than sufficient reason for a separate trial, a separate trial should not be granted

solely upon the moving party’s speculation that it might be prejudiced by certain

testimony.”

321

[W]hile the separation of trials can result in judicial economy when the

742 INDIANA LAW REVIEW [Vol. 40:705

322. Id. at 762 (quoting Frito-Lay, 569 N.E.2d at 990) (internal citation omitted).

323. Id. at 763.

324. Id.

325. Id.

326. 844 N.E.2d 126 (Ind. Ct. App.), trans. denied, 860 N.E.2d 586 (Ind. 2006).

327. Id. at 132.

328. Id. at 131 (quoting 9 U.S.C. § 1 (2000); Moses H. Cone Mem. Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 24 (1983); I

ND. CODE § 34-57-2-1 (2004); Homes By Pate, Inc. v. DeHann, 713

N.E.2d 303, 306 (Ind. Ct. App. 1999)).

329. Id.

330. Id.

331. Id. at 132. (citing Am. United Life Ins. Co. v. Douglas, 808 N.E.2d 690, 703 (Ind. Ct.

App. 2004)).

defendant prevails on the issue of liability (by obviating the need for a

trial on damages), the defendant must first convince the court that it has

a persuasive argument on the question of liability in order to justify the

potential risk and expense of two trials.

322

The court in Jamrosz found that “the issues of damages and liability are not

intertwined in this case.” However, the court stated that “the proof of damages

323

was not complicated and costly, and [the defendant] did not present an argument

that judicial economy would have been served by bifurcation because he had a

strong defense on the liability claim.” Therefore, even though the plaintiffs

324

may not have been prejudiced by bifurcation, the court concluded that the

defendant failed to show good cause for bifurcating the issues of liability and

damages.

325

L. Arbitration

1. Validity of Arbitration Provision.—In Precision Homes of Indiana, Inc.

v. Pickford, the court of appeals held that an arbitration provision contained in

326

a residential construction agreement was neither procured by fraud nor

unconscionable. Recognizing that both the federal and state arbitration statutes

327

favor “enforcement of agreements to arbitrate[,]” the court concluded first that

328

the arbitration provision at issue was not procured by fraud as a result of a

misstatement of applicable law within the provision. Specifically, the

329

arbitration provision “substantively altered the statement required under [section

32-27-3-12 of the Indiana Code] by changing the word ‘lawsuit’ from the statute

to the word ‘arbitration’ in the [c]ontract.” The court explained that, “[i]n

330

general, a misstatement of the law cannot form the basis of fraud because

everyone is presumed to know the law, and, therefore, the allegedly defrauded

party cannot justifiably have relied on the misstatements.” Noting that the

331

plaintiffs were represented by counsel in connection with the negotiation of the

relevant contract, the court concluded that “[t]he [plaintiffs] had no right to rely

on [the defendant’s] statements regarding the law and therefore did not establish

2007] CIVIL PROCEDURE 743

332. Id.

333. Id. (citing Progressive Constr. & Eng’g Co. v. Ind. & Mich. Elec. Co., 533 N.E.2d 1279,

1286 (Ind. Ct. App. 1989)).

334. Id. The court in Precision Homes proceeded to find that the plaintiffs’ claims, including

claims of assault, battery, and false imprisonment, were within the scope of the arbitration

provision. Id. at 132-133.

335. 851 N.E.2d 1281 (Ind. Ct. App. 2006).

336. Id. at 1285.

337. Id. (quoting Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92 (2000)).

338. Id.

339. Id.

340. Id. (quoting Green Tree, 531 U.S. at 91). The court in Roddie also rejected the plaintiffs’

argument that the contract was illusory and it found that the disputed matter was “the type of claim

that the parties agreed to arbitrate.” Id. at 1286-87.

341. 835 N.E.2d 219 (Ind. Ct. App.), reh’g, 838 N.E.2d 475 (Ind. Ct. App. 2005), trans.

denied, 855 N.E.2d 1005 (Ind. 2006).

342. 9 U.S.C. § 9 (2000).

343. Rogers, 835 N.E.2d at 222 (quoting Photopaint Tech., LLC v. Smartlens Corp., 335 F.3d

that the arbitration agreement was fraudulently induced.”

332

Regarding the argued unconscionability of the arbitration provision, the court

noted “that to be unconscionable, a contract ‘must be such as no sensible man not

under delusion, duress or in distress would make, and such as no honest and fair

man would accept.’” In reaching its conclusion that the provision at issue was

333

not unconscionable, the court in Precision Homes reasoned that the plaintiffs

were “represented by counsel during the contract negotiations[,] . . . [they] and

their counsel had every opportunity to read and understand the arbitration

agreement[,] . . . and if they entered into the contract without knowledge of its

terms, that was of their own doing.”

334

2. Prohibitive Costs of Arbitration.—In Roddie v. North American

Manufactured Homes, Inc., the plaintiffs argued, inter alia, that the arbitration

335

agreement was “unconscionable because they [could not] afford the arbitration

process.” The court quoted the United States Supreme Court’s rule of law on

336

the issue as follows: “[W]here, as here, a party seeks to invalidate an arbitration

agreement on the ground that arbitration would be prohibitively expensive, that

party bears the burden of showing the likelihood of incurring such costs.”

337

Although the plaintiffs “introduced evidence of their monthly budget[,]”

338

they offered “no evidence of the potential cost to [them] of arbitration.” Again

339

quoting the United States Supreme Court, the court in Roddie concluded that “the

risk that the [plaintiffs] ‘would be saddled with prohibitive costs is too

speculative to justify the invalidation of an arbitration agreement’ because there

is no evidence of the cost of arbitration to them.”

340

3. Deadline for Seeking Confirmation of Arbitration Award.—In MBNA

America Bank v. Rogers, the court held that “section 9 of the [Federal

341

Arbitration Act (the “FAA”)] imposes a one-year statute of limitations on the

342

filing of a motion to confirm an arbitration award under the FAA.” Section 9

343

744 INDIANA LAW REVIEW [Vol. 40:705

152, 158 (2d Cir. 2003)). Because the dispute in Rogers involved a “loan contract,” the Indiana

Uniform Arbitration Act, Indiana Code section 34-57-2-1, did not apply. Id. at 221.

344. Id. at 221 (emphasis added) (quoting 9 U.S.C. § 9 (2000)).

345. Id.

346. Id.

347. Id. at 222 (quoting In re Consol. Rail, 867 F. Supp. 25, 31 (D.D.C. 1994)).

348. Id.

349. 837 N.E.2d 1032 (Ind. Ct. App. 2005).

350. Id. at 1037-39.

351. Id. at 1039.

of the FAA provides, in pertinent part:

If the parties in their agreement have agreed that a judgment of the Court

shall be entered upon the award made pursuant to the arbitration, and

shall specify the court, then at any time within one year after the award

is made any party to the arbitration may apply to the court so specified

for an order confirming the award . . . . .

344

The court in Rogers rejected the argument of the party seeking belated

confirmation that “the foregoing provision is not intended as a statute of

limitations[,]” but rather that the use of the “permissive word ‘may’ preceding

345

the word ‘apply[]’ . . . afford[s] a discretionary one year time period to a party

wishing to confirm an award.” Relying on federal authority for the proposition

346

that “[a] one year limitations period is instrumental in achieving [the] goal [of

establishing conclusively the rights between the parties,]” the court in Rogers

347

ruled that the party seeking confirmation “failed to seek confirmation of the

award within the one-year statute of limitations[,] . . . [and, therefore,] the trial

court properly dismissed [the] complaint for judgment upon [the] arbitral

award.”

348

M. Attorney Fees

In Masonic Temple Ass’n v. Indiana Farmers Mutual Insurance Co., the

349

court adopted the “third-party litigation exception” to the “general rule that each

party to a litigation must pay his own attorney fees.” The court in Masonic

350

Temple described the third-party litigation exception as follows:

When the defendant’s breach of contract caused the plaintiff to engage

in litigation with a third party to protect its interests and such action

would not have been necessary but for defendant’s breach, attorney fees

and litigation expenses incurred in litigation with a third party may be

recovered as an element of plaintiff’s damages from defendant’s breach

of contract. These attorney fees and litigation expenses are foreseeable

damages . . . .

351

According to the court in Masonic Temple, the “elements” of the third-party

litigation exception are: “The plaintiff became involved in a legal dispute

2007] CIVIL PROCEDURE 745

352. Id.

353. Id.

354. Id. at 1039-40. In Masonic Temple, the court held that because an insurance company’s

breach of contract caused its insured to engage in litigation with a third party to protect its rights,

“the attorney fees and litigation expenses incurred in the litigation with the third party may be

recovered as an element of [the insured’s] damages.” Id. at 1040.

355. 840 N.E.2d 843 (Ind. Ct. App. 2006).

356. Id. at 851.

357. Id. (citing I

ND. TRIAL R. 69(E); Coak v. Rebber, 425 N.E.2d 197, 200 (Ind. Ct. App.

1981)).

358. Id. (quoting Stuard v. Jackson & Wickliff Auctioneers, Inc., 670 N.E.2d 953, 955 (Ind.

Ct. App. 1996)).

359. Id. (citing Coak, 425 N.E.2d at 200).

because of the defendant’s breach of contract or other wrongful act; (2) the

litigation was with a third party and not the defendant; and (3) the fees were

incurred in that third-party litigation.” Finally, it is “not a requirement that the

352

litigation with the third party caused by the defendant’s wrongful act be in a

separate action.” “The test of recoverability of attorney fees is not whether

353

they were incurred in a separate action, but whether they were incurred in an

action against a third party.”

354

N. Proceedings Supplemental

In Commercial Credit Counseling Services, Inc. v. W.W. Grainger, Inc.,

355

the court ruled that a party seeking to void an alleged “fraudulent transfer” to a

creditor through proceedings supplemental need not plead fraud with

particularity or specificity in order to properly place the creditor on notice of the

claim. The court explained that “because proceedings supplemental are

356

summary in nature, no formal pleadings are contemplated, and such specificity

is not required.” Specifically, the court explained the following:

357

“Proceedings supplemental are not an inappropriate vehicle to employ

to set aside alleged fraudulent transfers” because these proceedings

“originated in equity as remedies to the creditor for discovering assets,

reaching equitable and other interest[s] not subject to levy and sale at

law[,] and to set aside fraudulent conveyances.”

358

As such, the court concluded that the creditor’s argument regarding lack of

proper “notice” was “meritless,” because “the trial courts’ consideration of the

[allegedly fraudulent] transactions was a near certainty.”

359

III. AMENDMENTS TO INDIANA RULES OF TRIAL PROCEDURE

AND

ADOPTION OF LOCAL RULES

A. Indiana Trial Rule Amendments

In August 2006, the Indiana Supreme Court ordered several relatively minor

746 INDIANA LAW REVIEW [Vol. 40:705

360. IND. TRIAL R. 12(B). The prior version of the Rule provided that “If a pleading sets forth

a claim for relief to which the adverse party is not required to serve a responsive pleading, he may

assert at trial any defense in law or fact to that claim for relief.”

361. I

ND. TRIAL R. 63(B).

362. I

ND. TRIAL R. 81.

363. Id. (pre-January 2005 version).

364. Id. (January 2005 amendment).

365. Id.

366. See I

NDIANA RULES OF COURT—LOCAL (Thomson West 2007) (compiling local rules for

19 Indiana counties). A comprehensive list of counties that have adopted local rules is available

at the Indiana Courts web site, http://www.in.gov/judiciary/rules/local/.

367. Marion County LR49-TR5 R. 203.

368. Id.

amendments to the Indiana Rules of Trial Procedure, effective January 1, 2007.

Rule 12(B) was amended to provide that “[i]f a pleading sets forth a claim for

relief to which the adverse party is not required to serve a responsive pleading,”

then defenses of lack of personal jurisdiction, incorrect venue, insufficiency of

process, insufficiency of service of process or the same action pending in another

state court of this state are “waived to the extent constitutionally permissible

unless made in a motion within twenty [20] days after service of the prior

pleading.”

360

In addition, Rule 63—addressing disability and unavailability of a

judge—was amended to enumerate the procedure for the appointment of a judge

pro tempore. Finally, Rule 81—governing the proposal and adoption of local

361

rules—was amended to expand its application to “administrative districts,” in

addition to local courts.

362

B. Adoption of Local Rules

Before January 2005, Rule 81 passively provided that “[e]ach local court

may from time to time make and amend rules governing its practice not

inconsistent with these rules.” Effective January 2005, Rule 81 was amended

363

to “strongly encourage” the courts to adopt local rules “not inconsistent

with—and not duplicative of—these Rules of Trial Procedure or other Rules of

the Indiana Supreme Court.” In addition, the January 2005 amendment

364

provided that local courts will be “required” to adopt a set of local rules “for use

in all courts of record in a county” after January 1, 2007—i.e., that the adoption

of local rules by January 1, 2007 is mandatory. January 2007 arrived and the

365

local courts complied.

366

However, notably lacking is uniformity among the various counties. For

example, counties differ with regard to the amount of time allowed to file a

response in opposition to a motion, as well as other briefing requirements. In

Marion County, a response to a motion is due within fifteen days of the motion’s

filing. No “reply” is authorized by the Marion County Local Rule. In Porter

367 368

County, the “opposing brief” is due within ten days of service of the movant’s

2007] CIVIL PROCEDURE 747

369. Porter County LR64-TR05 R. 3300.

370. Id.

371. Vigo County LR84-TR7 R. 4.

372. Vigo County LR84-TR7 R. 4(D)(2).

373. Hamilton County LR29-TR00 R. 203.10.

374. Marion County LR49-TR33 R. 213.

375. Boone County LR06-TR26-BLR R. 6 (emphasis added).

376. Madison County LR48-TR33 R. 24 (“NOT” is capitalized in the actual text of the Rule).

377. Vigo County LR84-TR33 R. 10.

378. Clark County LR10-AR00 R. 7.

379. Lake County Local R. 7(D).

380. Wayne County Local R. 8(B).

381. See Michael W. Hoskins, Juggling the Rules—Attorneys Fret over Differing Local Court

Regulations, I

ND. LAW., Mar. 21, 2007, at 1 (discussing colorful examples of new local court rules

and practices).

brief. Any reply is due within five days thereafter. In Vigo County, a

369 370

response to a motion is due within fifteen days and a reply is due within seven

days thereafter. Vigo County also imposes a twenty page limit on all initial or

371

response briefs and a ten page limit on any reply brief. In Hamilton County,

372

any authorities relied upon in any brief or memorandum “which are not cited in

the Northeastern Reporter system shall be attached to counsel’s brief.”

373

Regarding written discovery, in Marion County, “[i]nterrogatories shall be

limited to a total of [25] including subparts and … shall not be used as a

substitute for the taking of a deposition.” In Boone County, “[n]o party shall

374

serve on any other party more than 30 interrogatories or requests for admissions

. . . .” In Madison County, interrogatories are limited to a total of fifty and

375

“shall NOT be used as a substitute for taking of a deposition.” In Vigo

376

County, interrogatories “shall be kept to a reasonable limit and shall not require

the answering party to make more than one hundred twenty-five (125)

responses.”

377

In Clark County, caption headings must be centered at the top of the filing

and must use the word “Case” in presenting the “number assigned to the

action”—as opposed to the word “Cause,” for example. In Lake County, the

378

filing of a timely appearance effects an automatic thirty day enlargement of time

to respond to a complaint, without the need for a further filing. In Wayne

379

County, an initial enlargement of time to file a responsive pleading is “granted

summarily”—upon the filing of a motion—“for up to forty-five (45) days.”

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In short, practitioners should review the local rules for each county in which

a new matter is undertaken early to become familiar with the particular court’s

guidelines, deadlines and other procedures ranging from font style and size,

format of pleadings, limits on written discovery and deadlines for responding to

motions.

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