The office address is 1106 Meridian St, Suite 251, Anderson, IN 46016 (follow that link for a map.)
Telephone: 765-641-7906
Fax: 765-374-3811
The best time to reach me by telephone is (usually) after 4:00 pm.
My traditional web page is here.
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Want to know more? I have more information on web page at page for more background. Also I have a Naymz page here:
If you do want to hire, please use my client questionnaire.
Notes from a project for my father that never seems to get very far. With some luck the following listing of Indiana sources might be of use:
I caught SCOTUS denies Indiana wine case from The Indiana Lawyer Daily during my hiatus from this blog. I think it still worth publicizing.
The Supreme Court of the United States won't consider whether Indiana's wine shipping law is constitutional by requiring in-person contact before any direct delivery is allowed.
Justices considered the case of Patrick L. Baude, et al. v. David L. Heath and Indiana Wine and Spirits Wholesalers of Indiana, Nos. 07-3323 and 07-3338, at a private conference on Thursday, and the decision denying the writ of certiorari came this morning when the order list was released.
Attorneys had asked the court in early February to accept the case, which challenged an Aug. 7, 2008, ruling from the 7th Circuit Court of Appeals.
The Circuit court ruled that Hoosiers must first make face-to-face contact at a winery to verify their age before being allowed to purchase any alcohol online or by phone. Appellate judges reversed a 2007 decision from then-U.S. District Judge John D. Tinder in Indianapolis, who'd struck down part of the state's 2006 law banning out-of-state shipments to Indiana customers without that initial in-person contact.
Teachers don't feel comfortable disciplining students because of possible lawsuits, Daniels and Zoeller said. Teachers would essentially be given the same qualified immunity status as state police or government officials, they said.
"Quality education cannot start until order prevails, and as of today Indiana has the strongest law protecting teachers against unruly students, unreasonable parents, and lawyers of all kinds," Daniels said. "This essentially eliminates the ability to sue a teacher or school acting in good faith, and ends the threat of legal harassment, except in the most extreme of circumstances."
Daniels described "good faith" as anything that doesn't involve a personal vendetta against a child.
The Indiana Court of Appeals addressed an issue of first impression today regarding whether a person could seek to enforce rights under a vehicle purchasing agreement he didn't sign but then disavow other provisions set forth in the same document.
The issue in TWH, Inc. d/b/a Tom Wood Honda v. Jennifer Binford, No. 48A02-0805-CV-441, is whether Jennifer Binford was required to arbitrate her complaint of breach of warranty and fraud against the car dealer. Binford bought a used car for her son, Aaron. She was the only one to sign the purchase agreement with Tom Wood, which included an arbitration provision. Both she and Aaron signed the retail installment contract, which didn't have an arbitration provision.
***
Aaron didn't initially sign the purchase agreement, but he then petitioned for permissive joinder since he is the co-purchaser of the car. As such, it constitutes a judicial admission and binds him to the arbitration provision in the purchase agreement, wrote Judge Edward Najam. Binford and her son can't seek affirmative relief from the transaction and disavow the arbitration provision in the purchase agreement. Tom Wood has proven that the dispute is the type of claim the parties agreed to arbitrate, so the appellate court reversed the denial of the motion to compel arbitration and remanded with instructions for the trial court to grant Tom Wood's motion and to enter judgment accordingly.
I missed the news that the Indiana General Assembly intends to add a fine to our Open Door Law. The Indiana Law Blog's "Obey open records law, or else". Having once heard Anderson's City Attorney refer to an open door law violation as a technicality (and this was in court!), I wish I could be more optimistic.
I say it is highly likely from reading the following from the IBJ:
The nation’s largest liquor distributor is suing the state in hopes of overturning an arcane law that requires distributors doing business here to be owned by Indiana residents.
Southern Wine & Spirits of Indiana Inc., part of a Miami-based company that does business in 30 states and distributes about 20 percent of the country’s booze, filed suit after the Indiana Alcohol and Tobacco Commission said it is not eligible to distribute liquor in Indiana “due to the owners being from out of state.”
The powerful liquor distribution lobby has fought to keep the post-Prohibition-era residency requirement on the books as a means to protect its turf and prevent competitors from poaching their brands.
The suit argues the state’s denial violates the company’s right to do business across state lines, a guarantee set out in the Commerce Clause of the U.S. Constitution. The company successfully challenged a similar law in Texas, getting a federal judge to overturn it in May 2007. “No federal court in memory has ever found a residential requirement as a condition to doing business constitutional,” said J. Alexander Tanford, an IU law professor who has fought with some success to allow Hoosiers to buy wine online. “This seems open and shut to me.”
Despite informing Southern in October 2008 that it isn’t eligible for a liquor permit, the state granted the company’s request for a wine distribution permit. The state dropped its residency restrictions on beer and wine distribution several years ago.
Liquor distributors have lobbied to retain the law in part because they have more to lose: While beer distributors have franchise agreements with beer brands that give them exclusive rights to a brand for a set time period, liquor distributors don’t enjoy the same contractual protections. Liquor brands can switch distributors without financial consequences.
“A residency requirement is about the only thing that protects them from losing their brands without compensation,” Carmichael said. “If I were them, I’d be doing the same thing.”
Southern’s arrival would pose a “huge threat” to National Wine & Spirits, said John J. Baker, the company’s chief operating offi cer.
He acknowledged that saving the residency law could be tough. If it doesn’t survive, the state must find another way to ensure a fair and competitive market, Baker said. He’s concerned in particular about a joint venture between Southern and Texas-based Glazer’s Distributors, announced last year, that gives the fi rms control of about 80 percent of the nation’s wine and spirits volume.
***
Tanford said the state has every right to require distributors to obtain licenses, pay fees and comply with a laundry list of regulations, but the residency rule is another story. He expects existing wholesalers will claim that state regulation will be more diffi cult for companies that aren’t headquartered here—an argument Tanford dismisses as hiding the real issue: a fear of competition.
If the same residency rule were to be extended to other industries, he said, something like half the companies in Indianapolis would have to shut down.
I try not to discuss Not-For-Publication cases. We cannot cite them as law and that tends to confuse the non-lawyers who stop by here. They can be handy for locating cases that we can use for precedent. Also, I think they can be useful in and of themselves. Fred Pfenninger and Cummins Michigan, Inc. v. Great Lakes Drilling, Inc., et al. (NFP) (PDF format) has that kind of value. I am still left wondering why there was this behavior by the attorney. For those who think lawyers get away with bad behavior, you definitely need to read this opinion.
Opinion at 11, with footnote omitted.Finally, Pfenninger contends that the trial court erred in trebling the sanction award without authority to do so. As discussed below, the trial court had the authority to impose the underlying award of attorney’s fees pursuant to either Indiana Trial Rule 37 (B) or Indiana Code Section 34-52-1-1(b).
The opinion goes to discuss the basis for the sanction against the lawyer:IC 34-52-1-1 General recovery rule
Sec. 1. (a) In all civil actions, the party recovering judgment shall recover costs, except in those cases in which a different provision is made by law.
(b) In any civil action, the court may award attorney's fees as part of the cost to the prevailing party, if the court finds that either party:
(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless;(c) The award of fees under subsection (b) does not prevent a prevailing party from bringing an action against another party for abuse of process arising in any part on the same facts. However, the prevailing party may not recover the same attorney's fees twice.
(2) continued to litigate the action or defense after the party's claim or defense clearly became frivolous, unreasonable, or groundless; or
(3) litigated the action in bad faith.
I do not recall having seen IC 33-43-1-8 and I hope never to see it:Although the order is otherwise detailed, it does not denote which statute or trial rule upon which the trial court bases the award. Only certain language in the order assists in determining under which authority the trial court intended to make the award. The order includes findings that “Pfenninger has filed numerous, unsupported and frivolous pleadings and discovery in bad faith” and “has continued to litigate this action after Cummins claims and/or defenses clearly became frivolous, unreasonable and groundless, as well as in bad faith.” Appellant’s App. at 22, 23. The order concludes that “[a]s a result of Pfenninger’s deceit as set forth herein, Diversified is entitled to triple damages.” Appellant’s App. at 23. These three passages indicate the following authority, respectively: Indiana Trial Rule 37(B) (Discovery Sanctions),6 Indiana Code Section 34-52-1-1(b) (Exception to General Costs Recovery Rule),7 and Indiana Code Section 33-43-1-8 (Deceit or Collusion by an Attorney).
IC 33-43-1-8
Deceit or collusion of attorney; penalty
Sec. 8. (a) An attorney who is guilty of deceit or collusion, or consents to deceit or collusion, with intent to deceive a court, judge, or party to an action or judicial proceeding commits a Class B misdemeanor.
(b) A person who is injured by a violation of subsection (a) may bring a civil action for treble damages.
As added by P.L.98-2004, SEC.22.
The Indiana Supreme Court has revised its administrative and appellate rules governing how trial courts make records publicly accessible and how appeals are handled in certain cases requiring confidentiality.
An order dated Oct. 6 dictates access to court records and says trial courts may manage access to audio and video recordings of its proceedings to the extent that may be deemed appropriate and not interfering with court operations. Justices reached a decision on the issue late last week during a weekly conference.
***
"This doesn't attempt to create a formula," Justice Dickson said. "It's basically an operational call by the clerk, and the clerk is to come up with what they find appropriate for designations to meet the rule and comply with statutory obligations."
In the order, the court also amended its rule regarding court record security and added commentary that includes examples of what judges can do to ensure recordings aren't altered.
"The court is required to preserve the integrity of audio and video recordings of court proceedings," the rule states, adding that options include supervised playback for listening or copying, creating a copy of the record for use during playback, and notifying the involved parties about the accessed record.
Rule revisions take effect Jan. 1, 2009.
Here the malpractice law loses to a negligent employment claim against a hospital employee's sexual misconduct with a patient. The following comes from The Indiana Lawyer's Sexual misconduct doesn't fall under MedMal act.
The Indiana Court of Appeals today affirmed a trial court determination that an employee's sexual conduct with a patient can't constitute a rendition of health care or professional services, so a negligent hiring complaint against a hospital based on that conduct doesn't fall under the Indiana Medical Malpractice Act.
In Fairbanks Hospital v. Dan Harrold, Eva Harrold, Natalie Harrold, and Indiana Department of Insurance, No. 49A02-0712-CV-1055, the Court of Appeals had to consider whether a complaint alleging negligent hiring, training, and supervision of a hospital employee falls within the act if the underlying tort allegedly committed by the employee was unwanted sexual advances.
Eighteen-year-old Natalie Harrold was admitted to Fairbanks' adolescent unit for inpatient substance abuse treatment. Adolescent guidance counselor Larry Shears participated in Harrold's care in September 1997. Shears later hugged, kissed, and patted Natalie on her buttocks on more than one occasion and urged her to call him. After she was discharged, Natalie reported Shears behavior; he was later fired.
The Harrolds' filed a complaint with the Indiana Department of Insurance and in Marion Superior Court, including an allegation of negligent supervision against Fairbanks. Fairbanks sought a ruling as a matter of law that the Harrolds' claims fall within the scope of the state's Medical Malpractice Act.
The Indiana Supreme Court has revised its administrative and appellate rules governing how trial courts make records publicly accessible and how appeals are handled in certain cases requiring confidentiality.
An order dated Oct. 6 dictates access to court records and says trial courts may manage access to audio and video recordings of its proceedings to the extent that may be deemed appropriate and not interfering with court operations. Justices reached a decision on the issue late last week during a weekly conference.
***
"This doesn't
attempt to create a formula," Justice Dickson said. "It's basically an
operational call by the clerk, and the clerk is to come up with what
they find appropriate for designations to meet the rule and comply with
statutory obligations."
In the order, the court also amended its
rule regarding court record security and added commentary that includes
examples of what judges can do to ensure recordings aren't altered.
"The
court is required to preserve the integrity of audio and video
recordings of court proceedings," the rule states, adding that options
include supervised playback for listening or copying, creating a copy
of the record for use during playback, and notifying the involved
parties about the accessed record.
Rule revisions take effect Jan. 1, 2009.
As effective July 1 and continuing until the next General Assembly:
COURT COSTS EFFECTIVE JULY 1ST,2008
THE CHANGE IS BASED ON INDIANA CODES.. ..THIS SECTION APPLIES
TO ALL CIVIL, CRIMINAL, INFRACTION AND ORDINANCE VIOLATION
ACTIONS:
CASE TYPE CASE CLASS COSTS BREAK DOWN
CODE 100% RECEIPTS
CRIMINAL
CRIMINAL FELONY FA,FB,FC,FD $164.00 $120.00
CRIMINAL MISDEMEANOR CM $164.00 $5.00
MISCELLANEOUS CRIMINAL MC $164.00 $18.00
$6.00
$7.00
$4.00
$2.00
$2.00
JUVENILE PROCEEDINGS
JUVENILE CHINS JC $156.00 $120.00
JUVENILE DELINQUENCY JD $156.00 $5.00
JUVENILE PATERNITY JP $156.00 $18.00
JUVENILE MISCELLANEOUS JM $156.00 $7.00
$4.00
$2.00
CIVIL ACTIONS
CIVIL PLENARY CC,PL,CT,MF $136.00 $100.00
MISCELLANEOUS MI $136.00 $5.00
DOMESTIC RELATIONS DR $136.00 $18.00
$7.00
DOMESTIC RELATIONS WITH CHILDREN $4.00
DIVORCE WORKSHOP $25.00 EACH $2.00
CHILDREN WORKSHOP$10.00 PER CHILD (NOT TO EXCEED
$20.00 PER FAMILY)
AGES 6 THROUGH 17
SMALL CLAIMS SC $76.00 $35.00
$5.00
PL $136.00 $10.00
CC $13.00
$7.00
$4.00
$2.00
*$lo.oo fee for any party adding a defendant to the action.
PROBATE
ESTATES ES $156.00 $120.00
GUARDIANSHIPS GU $156.00 $5.00
TRUSTS TR $156.00 $18.00
$7.00
$4.00
$2.00
ADOPTIONS AD $136.00 $100.00
$5.00
$18.00
$7.00
$4.00
$2.00
PROTECTIVE ORDERS P0 CT! DECIDED
MENTAL HEALTH MH NO CHG
ORDINANCE VIOLATION CASES OV $114.00 $70.00
$5.00
$18.00
$6.00
$7.00
$4.00
$2.00
$2.00
HARDSHIP LICENSE MI $106.00 $70.00
$5.00
$18.00
$7.00
$4.00
$2.00
Not too often do I write about theory rather than practice, but reading A model for LLC laws (Thanks to Delaware Corporate and Commercial Litigation Blog for its Ribstein on LLCs that lead me to Professor Ribstein's article).
I do not know that our General Assembly has given any thought to revising our LLC statute. If there is any movement in Indiana towards changing the LLC statute, I say reading Professor's Ribstein's article should come first.
How do Indiana courts have jurisdiction over people and businesses not residing Indiana courts? After all, Indiana's civil jurisdiction ends at its borders.
Indiana's Trial Rule sets out how to get jurisdiction. Indiana Trial Rule 4.4 (Service upon persons in actions for acts done in this state or having an effect in this state) sets out the categories of actions by defendants which give Indiana court's jurisdiction over those defendants.
What neither the courts nor out-of-state businesses wants is to be brought into an Indiana court for an inadvertent incursion to Indiana. The law gives weight to the amount of contact an out-of-state defendant has with Indiana. Where defendant's the only contacts are by telephone
and without personal appearance in Indiana and it is the Indiana plaintiff initiating contact, Indiana law makes it very difficult to have jurisdiction over the out-of-state defendant. See Dura-Line Corp. v. Sloan, 487 N.E2d 469 (Ind. Ct App. 1986) and Baseball Card World, Inc. v. Pannette, 583 N.E.2d 753 (Ind. Ct App. 1991), trans. denied..
Indiana businesses need to be careful about dealing with out-of-state persons. Consulting with a lawyer about the problems of operating outside of Indiana is far cheaper than trying to collect a debt in another state.
For those buying or leasing goods from another to start a business, take a look at Indiana's Business Opportunity Transactions Act. The statute came to my attention when I found online a complaint filed by Indiana's Attorney General. The complaint is to be found here.
I have taken the liberty of quoting the most pertinent parts of the definition for "Business opportunity":
Businesses can face felony charges, a civil suit, an action by the Attorney General or all of the above.(1) involves the sale or lease or offer to sell or lease any goods or services to an investor that are to be used by the investor in beginning or operating a business;
(2) involves an initial payment by the investor of more than five hundred dollars ($500) and an initial cash payment of less than fifty thousand dollars ($50,000); and
(3) involves a solicitation of investors in which the seller represents that:(A) the investor may or will earn an amount in excess of the initial payment as a result of the investment;
(B) a market exists for any goods to be made or services to be rendered by the investor;
(C) the seller may buy from the investor any goods to be made or services to be rendered by the investor;
(D) the seller or a person referred by the seller to the investor may or will sell, lease, or distribute the goods made or services rendered by the investor; or
(E) the seller may or will pay to the investor the difference between the initial payment and the investor's earnings from the investment.
A shoutout to Indiana Commercial Foreclosure Law Blog and for its post, Sheriff’s Sales Of Separate Tracts: Principal’s Real Estate First, Surety’s Second:
The Keesling v. T.E.K. Partners case has produced a second appellate court opinion. I wrote about Keesling I on March 23, 2007. That post dealt with the liability of sureties (or accommodation parties) when an original obligation is materially altered. The latest opinion, decided March 6 (2008 Ind. App. LEXIS 431) (KeeslingII.pdf), discusses among other things the order (sequence) of the sheriff’s sales when there are multiple tracts to be sold. So, Keesling I discusses liability issues, and Keesling II addresses judgment enforcement-related matters. Commercial lenders may want to note Keesling II in the event they need guidance where there is more than one parcel of real estate subject to a foreclosure sale.
Indiana appellate opinions suffered from some technical problems last week. The Indiana Lawyer Daily provides the write up here: Court: business license fee not a tax.
"In the opinion, David Paul Allen v. City of Hammond, 45A03-0708-CV-372, it states that on July 28, 2005, Allen filed a complaint for declaratory judgment against the city to invalidate the ordinance requiring businesses to have a license."
***
On Sept. 29, 2006, he filed a motion for partial summary judgment. The city responded and moved for summary judgment Nov. 21, 2006. The trial court conducted a hearing June 7, 2007, on the cross-motions for summary judgment. On July 3, 2007, the trial court denied Allen's motion for summary judgment and granted the city's motion for summary judgment. Allen appealed.
If the city was charging an additional tax to business owners, it would not be allowed under Indiana's Home Rule Act, which states the city is not permitted to impose a tax that is "greater than that reasonably related to the administrative cost of exercising a regulatory power," according to Indiana Code 36-1-3-8(a).
The parties agreed about the Home Rule Act but disagreed as to whether the business license fee is a valid regulatory fee and not a tax, and if the fee is greater than that reasonably related to the cost of exercising the regulatory power.
***
The Court of Appeals affirmed the trial court's July 3, 2007, decision to deny Allen's motion for summary judgment and grant the city's motion for summary judgment, concluding that "Allen has not established that ordinance 8590 is invalid," wrote Judge Barnes.
"Because there are no genuine issues of material fact and the city has established it is entitled to judgment as a matter of law, the trial court properly granted the city's motion for summary judgment and denied Allen's motion for summary judgment. We affirm."
The Indiana Civil Rights Commission carries out investigation for the federal EEOC (as to why, see this FAQ from the EEOC) as well as investigating violations of Indiana's civil right statutes. Remember that for much of civil rights litigation (such as discrimination in employment) requires exhausting administrative remedies. Administrative remedies means The Indiana Civil Rights Commission. You can find online its Commissions Orders.
Sorry to the non-lawyers for this sort of inside baseball kind of post. Marcia Oddi of The Indiana Law Blog has suggested for some time that the Briefs filed in Indiana appeals be available online. I agree with her. Now I find Massachusetts doing exactly this. See Legal briefs of SJC cases available on court Web site.
"As part of a continuing effort to make the court system more easily accessible to the public, the Supreme Judicial Court is now providing legal briefs filed with the full Court available on the Internet at www.ma-appellatecourts.org or at www.mass.gov/sjc."I would like to think that what Massachusetts can do, Indiana can do also. Is this such an impossibility with electronic filing in the near future?
I thought a series of posts about the steps in a lawsuit might be useful. This will be the first part of a series about the general procedure in civil lawsuits. Small claims have a wholly different procedure and I suggest you look at the small claims rules if you are looking for information on small claims cases. I am not going into all the nooks and crannies of civil procedure but just the broad generalities.
After filing the Complaint and Summons with the County Clerk, serving the defendant is the next step. In some counties the person serving the Complaint is a Sheriff's deputy and in others it is a bailiff.
By the way, Indiana's Trial Rules have eighteen rules solely about service. See Indiana Trial Rule 4 to 4.17.
If the defendant cannot be served personally, then there is service by certified mail and by publication. The case cannot go forward if the defendant cannot be served. Service is part of the constitutional right of due process.
The defendant then has a certain amount of time for responding to the Complaint depending on the type of service. The response is called an Answer. For personal service, the time is 20 days. Expect that to be extended by the defendant. Usually, the extension runs another 30 days. That is if the defendant gets an attorney or knows the Indiana Trial Rules.
If the defendant does nothing by the 20th day, the rules allow for a default judgment. Just as if it were a ball game, one wins if the other side does not show up.
I wrote the defendant must file an Answer. This is not precisely true. The defendant may file a Motion to Dismiss, or an Answer. If the defendant files a Motion to Dismiss, the judge must rule on the motion before the case can continue. If the judge denied the defendant's motion, then the defendant must file an Answer. If the judge grants the motion, the Plaintiff may have be out of a case or find a way to get back in.
What comes after the Defendant files an Answer? Not trial, but what we call discovery. That is for another post.
A head's up to anyone facing a tax sale or looking to purchase at a tax sale, a new Bill changing the law is on its way to the Governor. The following is a synopsis of the new law:
Tax sales. Limits the circumstances under which a tax sale purchaser may terminate the purchase before conclusion and receive a refund of a part of the purchase price. Reduces the amount of the refund. Requires reinstatement and collection of any remaining delinquencies after the terminated purchase. Provides a procedure for searching the records for an alternative mailing address when service of notice of an order for the sale of property for delinquent property taxes is initially unsuccessful. Eliminates an obsolete reference to the dates when a tax sale must be held. Reduces the period before a tax sale may be conducted when property has been offered at sales without success. Prohibits a tax sale purchaser who fails to make payment and complete the sale from participating in the next succeeding tax sale in the county. Permits a tax sale to be conducted by electronic means. Provides that any civil penalty collected because a purchaser fails to pay the bid must be deposited in the county general fund and not the common school fund. Requires a purchaser of property at a tax sale to certify certain additional costs that must be paid by a redeeming property owner not earlier than 30 days after the tax sale. Requires pleadings and motions related to a defense to a judgment and order of sale to be served on the county auditor and county treasurer. Permits a county before August 1, 2007, to use the expedited sale procedures repealed by HEA 1102-2006 for property that failed to sell at a tax sale conducted before 2007.
