G:\28243 Ind Law Rev 45-4\45masthead.wpd


RECENT DEVELOPMENTS IN INDIANA CIVIL PROCEDURE

DANIEL K. BURKE*
AMANDA L.B. MULROONY**

During the survey period,1 the Indiana Supreme Court and the Indiana Court
of Appeals rendered several decisions addressing principles of state procedural
law and provided helpful interpretations of the Indiana Rules of Trial Procedure.

I.  INDIANA SUPREME COURT DECISIONS

A.  Subject Matter Jurisdiction
In State ex rel. Zoeller v. Aisin USA Manufacturing, Inc.,2 the Indiana

Supreme Court held that a trial court did not lack subject matter jurisdiction over
the State’s action to recover an erroneously issued tax refund from a corporate
taxpayer.3  The State brought an action based on claims of unjust enrichment,
theft, statutory treble damages and constructive trust to recover more than one
million dollars that was mistakenly issued as a refund check to Aisin USA
Manufacturing, Inc. (“Aisin”) due to several accounting and clerical errors within
the Indiana Department of Revenue.4  The trial court granted, and the court of
appeals affirmed, Aisin’s motion to dismiss pursuant to Indiana Trial Rule
12(B)(1) for lack of subject matter jurisdiction, finding that the matter fell within
the exclusive jurisdiction of the Indiana Tax Court.

The Indiana Supreme Court determined that this case was not one that “arises
under”5 Indiana tax law and therefore it was not an original tax appeal over which
the Indiana Tax Court had exclusive jurisdiction.6  Affirming its prior
interpretation of the term “arises under” as contained in Indiana Code section 33-
26-3-1, the court stated that “a case arises under Indiana tax law if an Indiana tax
statute creates the right of action or if the case principally involves the collection
of a tax or defenses to the collection of a tax.”7  The court found that this case did
not “principally” involve the collection of a tax or defenses to the collection of

* Partner, Hoover Hull LLP, Indianapolis, Indiana.  B.S., 1994, Indiana University—
Bloomington; J.D., 1999, cum laude, Southern Methodist Dedman University School of Law.  The
views expressed herein are solely those of the authors.

** Associate, Hoover Hull LLP, Indianapolis, Indiana.  B.A., 2004, cum laude, DePauw
University, Greencastle, Indiana; J.D., 2011, summa cum laude, Indiana University Robert H.
McKinney School of Law.

1. This Article discusses select Indiana Supreme Court and Indiana Court of Appeals
decisions during the survey period—from October 1, 2010, through September 30, 2011—as well
as amendments to the Indiana Rules of Trial Procedure, which were ordered by the Indiana
Supreme Court during the survey period.

2. 946 N.E.2d 1148 (Ind. 2011), reh’g denied, 2011 Ind. LEXIS 789 (Sept. 13, 2011).
3. Id. at 1159.
4. Id. at 1150-51.
5. See IND. CODE § 33-26-3-1 (2011).
6. Zoeller, 946 N.E.2d at 1159.
7. Id. at 1154 (citing State v. Sproles, 672 N.E.2d 1353, 1357 (Ind. 1996)). 



1012 INDIANA LAW REVIEW [Vol. 45:1011

a tax8:  none of the State’s clerical or accounting errors were due to a
misunderstanding of tax law; Aisin did not owe this money to the State due to
outstanding tax liability, but rather because it was unjustly enriched by the
refund; and “determining whether and to what extent mistakes were made ha[d]
nothing to do with Indiana tax law.”9  Additionally, the court reasoned that the
legislative purpose for the Indiana Tax Court’s existence—ensuring the uniform
interpretation and application of Indiana tax law—“would not be served by the
[t]ax [c]ourt exercising jurisdiction over a case devoid of any tax-law issues.”10 
The court concluded that the Jackson Superior Court had subject matter
jurisdiction and remanded for proceedings on the merits of the State’s claims.11

B.  Service
In Joslyn v. State,12 the supreme court held that a defendant’s admission that

he had notice of a protective order was sufficient to support convictions of
stalking and invasion of privacy, despite the defendant’s arguments that the
protective order was not properly served under the Indiana Rules of Trial
Procedure.13  Stephanie Livingston obtained an ex parte protective order under the
Indiana Civil Protective Order Act against Richard Joslyn.14  Joslyn was served
with a copy of the protective order by a sheriff’s deputy who left a copy attached
to the door of Joslyn’s residence.  The return of service, though, did not indicate
whether a copy was also mailed to his last address as required under Indiana Trial
Rule 4.1.15  After Josyln violated the protective order and was convicted of
stalking and invasion of privacy, he challenged the sufficiency of evidence to
support his convictions based on improper service of the protective order.16

Granting transfer “to address the service of protective orders,” the court held
that Joslyn’s testimony admitting receipt of the protective order was sufficient to
sustain his convictions.17  Affirming the reasoning of the appellate court, the court
stated:

[T]he purpose of the Indiana Civil Protection Order Act is to promote the
protection and safety of all victims of domestic violence and prevent
future incidents.  It would run contrary to this purpose if we were to

8. Whether the State’s right of action was created by a tax statute was not at issue.  Id.
9. Id. at 1155.

10. Id. at 1156.
11. Id. at 1159.  Justice Rucker authored a dissent in which Justice Dickson concurred.  Id.

(Rucker, J., dissenting).  Justice Rucker opined that this matter was one for the Tax Court, and that
the State attempted to “end-run” a missed statute of limitations deadline applicable to a tax
proceeding by filing the present action in the superior court.  Id.

12. 942 N.E.2d 809 (Ind. 2011).
13. Id. at 812-14.
14. Id. at 810.
15. Id. (citing IND. TRIAL R. 4.1).
16. Id. at 812.
17. Id. at 811-12.



2012] CIVIL PROCEDURE 1013

embrace Joslyn’s contention that a defendant does not violate the
criminal code because of some defect in civil process even where the
court had in fact issued a protective order and the defendant in fact knew
it had done so.18

In In re Adoption of L.D.,19 the supreme court remanded the denial of a
mother’s motion to set aside paternal grandparents’ petition for adoption, finding
that notice and service of process by publication was insufficient to confer
personal jurisdiction over the mother because the grandparents failed to perform
a “diligent search” as required by the Due Process Clause.20  After the mother
gave birth to a baby (“Child”) while not married and incarcerated, a court
appointed N.E. (who later adopted the Child, and therefore became the adoptive
grandmother of Child) to be Child’s guardian.21  After an initial failed attempt at
adoption, and various changes to the Child’s custody and visitation arrangements,
the Child’s paternal grandparents filed a new petition to adopt Child.  The
paternal grandparents did not give notice to N.E., and filed an affidavit stating
they did not have the mother’s address or telephone number.  The affidavit went
on to say that they had attempted to obtain such from the Indiana Department of
Correction and the Marion County Jail, and had learned that the mother was no
longer incarcerated and had not contacted Child for two years.22  Paternal
grandparents filed “proof of service” of the adoption petition through
publication.23  

While the paternal grandparents attended the adoption hearing, they left Child
in the care of N.E., but did not tell N.E. of the adoption petition or that they were
attending a hearing to adopt Child.  After the hearing, the paternal grandparents
informed N.E. of the adoption, and within two weeks, the mother and N.E. asked
the court to vacate the adoption and declare it void due to a lack of notice under
Indiana Trial Rule 60(B).24  At a hearing on the issue, the paternal grandmother
testified that she had asked N.E. if she knew how to contact the [m]other, and
N.E. said “no, not really,”25 but N.E. testified that she did not remember such a
conversation and that she had been able to contact the Child’s mother.26  The trial
court denied the motion to set aside the adoption decree, and the court of appeals
affirmed, finding that the mother had been adequately served.27  

Although both Indiana’s adoption statute and Indiana Trial Rule 4.13(A)
allow for notice or service of process by publication “‘if the . . . address of the

18. Id. at 812.
19. 938 N.E.2d 666 (Ind. 2010).
20. Id. at 671.
21. Id. at 667-68.
22. Id. at 668.
23. Id. 
24. Id. 
25. Id. at 669.
26. Id. at 669 n.2.
27. Id. at 669.



1014 INDIANA LAW REVIEW [Vol. 45:1011

person is not known,’”28 a “diligent search” is required under the Due Process
Clause and Rule 4.13(A) before attempting notice by publication.29  After
discussing several federal and Indiana opinions regarding the satisfaction of
“diligence,” the court concluded that, under the facts of the present case, the
paternal grandparents failed to conduct the diligent search required by the Due
Process Clause.  The court focused its reasoning on the paternal grandparents’
failure to discuss the adoption with N.E.:

[The Paternal Grandparents] made only the most obtuse and ambiguous
attempt to ask N.E. about [the m]other’s whereabouts.  They
affirmatively concealed from N.E. the very fact that they were filing an
adoption petition even though the most minimal diligence to find [the
m]other would have involved N.E.  One need look no further than the
fact that N.E. and [the m]other filed their motion in court less than two
weeks after [the p]aternal [g]randparents told N.E. that the adoption had
been granted to see how little effort would have been required for
Paternal Grandparents to find [the m]other had they involved N.E.30

The court remanded the case to the trial court and directed it to grant the mother’s
Trial Rule 60(B) motion to vacate the adoption decree.31

C.  Pleadings
In Avery v. Avery,32 the supreme court held that defendants to a will contest

action were required to file an answer or other responsive pleading in accordance
with Indiana Trial Rule 7, and affirmed the trial court’s grant of default judgment
in favor of the plaintiff because of defendants’ failure to answer.33  After Mary
Avery passed away, her daughter, Trina Avery, opened an estate and was
appointed personal representative.34  After two of Mary’s sons filed a petition to
remove Trina as personal representative and the probate court’s admission of a
will naming one of the sons as personal representative, Trina filed a separate
action to dispute the validity the will.35  Notice was provided to the defendants,
including the Avery sons, via summons instructing defendants that “[a]n answer
or other appropriate response in writing to the Complaint must be filed . . . or a
judgment by default may be rendered against you for the relief demanded by
Plaintiff.”36  After the defendants failed to answer or otherwise respond to the

28. Id. (quoting IND. CODE § 31-19-4.5-2(2) (2011) and citing IND. TRIAL R. 4.13(A)).
29. Id. 
30. Id. at 671.
31. Id. 
32. 953 N.E.2d 470 (Ind. 2011).
33. Id. at 472.
34. Id. at 470.
35. Id. at 470-71.
36. Id. at 471.



2012] CIVIL PROCEDURE 1015

summons, the trial court entered a judgment by default against all defendants.37
The court rejected the defendants’ contention that they were not required to

file an answer because a will contest action is a “statutorily created cause of
action” that must be brought within certain statutory provisions, which do not
explicitly require an answer.38  While the court acknowledged that some Indiana
opinions authored prior to the 1970 adoption of the Indiana Rules of Trial
Procedure held that an answer in a will contest was not necessary,39 the court
cited the “inclusive breadth”40 of Trial Rule 141 and post-Rules case law (finding
that the Trial Rules “take precedence over any conflicting statutes”42 and
specifically applying the Trial Rules to will contest actions)43 to determine that
a timely filing of an answer was required.44  Failure to do so subjected the
defendants to a default judgment, as contemplated under Trial Rule 55(A).45

D.  Right to a Jury Trial
In Lucas v. U.S. Bank, N.A.,46 the Indiana Supreme Court reversed the court

of appeals determination that mortgagors were entitled to a jury trial on their legal
claims asserted in response to a mortgage foreclosure action,47 affirming the trial
court’s denial of the jury trial request.48  The court drew from its prior teaching
in Songer v. Civitas Bank49 to formulate a “multi-pronged inquiry” as to whether
a suit is “essentially equitable,” thus drawing legal claims into equity and away
from a jury.50

After U.S. Bank brought a mortgage foreclosure action against the Lucases,

37. Id. 
38. Id. at 472.
39. Id. at 471 (quoting State ex rel. Brosman v. Whitley Circuit Court, 198 N.E.2d 3, 5 (Ind.

1964)).
40. Id. at 472 (citing Robinson v. Estate of Hardin, 587 N.E.2d 683, 685 (Ind. 1992)).
41. Indiana Trial Rule 1 states, in part, that “[e]xcept as otherwise provided, these rules

govern the procedure and practice in all courts of the state of Indiana in all suits of a civil nature
whether cognizable as cases at law, in equity, or of statutory origin.” IND. TRIAL R. 1.

42. Avery, 953 N.E.2d at 472 (citing State ex rel. Gaston v. Gibson Circuit Court, 462 N.E.2d
1049, 1051 (Ind. 1984); In re Little Walnut Creek Conservancy Dist., 419 N.E.2d 170, 171 (Ind.
Ct. App. 1981), reh’g denied; Augustine v. First Fed. Sav. & Loan Ass’n of Gary, 384 N.E.2d
1018, 1020 (Ind. 1979)).

43. Id. (quoting Robinson v. Estate of Hardin, 587 N.E.2d 683, 685 (Ind. 1992)).
44. Id.
45. Id.
46. 953 N.E.2d 457 (Ind. 2011), reh’g denied, 2012 Ind. LEXIS 6 (Jan. 9, 2012).
47. The court of appeal’s opinion and rationale was discussed in last year’s survey article. 

See Daniel K. Burke, Recent Developments in Indiana Civil Procedure, 44 IND. L. REV. 1087,
1105-06 (2011).

48. Lucas, 953 N.E.2d at 467.
49. 771 N.E.2d 61 (Ind. 2002).
50. Lucas, 953 N.E.2d at 465-66.



1016 INDIANA LAW REVIEW [Vol. 45:1011

the Lucases responded by asserting various affirmative defenses, counterclaims,
and a third-party complaint against the loan servicer.51  The Lucases pled
statutory and common law claims against the bank and loan servicer, claiming
they were entitled to various forms of relief, including monetary damages, and
demanded a jury trial “on all issues deemed so triable.”52 

The court cited Songer to explain:
[A] court should look at the “essential features of a suit.” If the lawsuit
as a whole is equitable and the legal causes of action are not “distinct or
severable,” then there is no right to a jury trial because equity subsumes
the legal causes of action.  On the other hand, if a multi-count complaint
contains plainly equitable causes of action and sufficiently distinct,
severable, and purely legal causes of action, then the legal claims require
a trial by jury.53

According to the supreme court, the court of appeals interpreted Songer to
“require courts to engage in a case-by-case analysis of the various claims and not
to use bright-line rules based on specific causes of action.”54  The court of
appeals found that the Lucases’ affirmative defense alleging that U.S. Bank
failed to produce the original promissory note and properly executed assignments
as proof of its security interest was “‘so intertwined with a foreclosure action’
that it was also a matter of equity.”55  However, on the other defenses,
counterclaims, and third party claims, the court of appeals found they were
“grounded in federal and state statutory law and state common law, and were all
legal causes of action . . . request[ing mostly] money damages, a legal remedy.”56 
The court of appeals also reasoned that the nature of these claims was different
from the foreclosure action because the Lucases’ claims were grounded partly
in “consumer protection statutes designed to provide meaningful disclosure of
information and to protect borrowers from abusive, unfair debt collection
practices.”57  The court of appeals thus instructed the trial court to grant the
Lucases’ motion for a jury trial as to these legal claims.

The supreme court found Songer to require trial courts to 
engage in a multi-pronged inquiry to determine whether a suit is
essentially equitable. . . . [W]e formulate that inquiry as follows:  If
equitable and legal causes of action or defenses are present in the same
lawsuit, the court must examine several factors of each joined claim—its
substance and character, the rights and interests involved, and the relief

51. Id. at 459.
52. Id. 
53. Id. at 460-61 (citations omitted).
54. Id. at 463 (citing Lucas v. U.S. Bank, N.A., 932 N.E.2d 239, 244 (Ind. Ct. App. 2010),

rev’d 953 N.E.2d 457).
55. Id. at 463-64 (quoting Lucas, 932 N.E.2d at 244).
56. Id. at 464 (citing Lucas, 932 N.E.2d at 244).
57. Id. (citing Lucas, 932 N.E.2d at 244-45).



2012] CIVIL PROCEDURE 1017

requested.  After that examination, the trial court must decide whether
core questions presented in any of the joined legal claims significantly
overlap with the subject matter that invokes the equitable jurisdiction of
the court.  If so, equity subsumes those particular legal claims to obtain
more final and effectual relief for the parties despite the presence of
peripheral questions of a legal nature.  Conversely, the unrelated legal
claims are entitled to a trial by jury.58

Applying this inquiry to the present case, the court found that the bank’s
foreclosure complaint invoked the equitable jurisdiction of the trial court, and that
all of the Lucases’ legal claims were “subsumed into equity.”59  The court
reasoned that when “looking at the cause as a whole”60 and comparing the core
issues presented by the Lucases’ legal defenses and claims61 with the core issues
presented by the foreclosure action,62 it was clear that they were “closely
intertwined with one another,”63 so that equity took jurisdiction over the
“essential features” of the suit, thus requiring denial of the Lucases’ jury trial
request.64

E.  Judgment on the Evidence/Affirmance of General Verdict
In TRW Vehicle Safety Systems, Inc. v. Moore,65 the Indiana Supreme Court

determined that TRW’s motion for judgment on the evidence should have been

58. Id. at 465-66.
59. Id. at 466.
60. Id.
61. The court summarized the factual contentions underlying the Lucases’ legal claims as

follows:
(1) U.S. Bank or Litton misled the Lucases on the terms of the loan documents and the
handling of the Lucases’ monthly payments; (2) U.S. Bank or Litton failed to properly
account for and apply the Lucases’ monthly payments to pay property taxes and
insurance; (3) as a result of incorrectly calculating the Lucases’ debt and misapplying
the monthly payments, U.S. Bank or Litton declared the Lucases in default when in fact
the Lucases were current and not liable for foreclosure; and (4) because the Lucases
were current in their payments, U.S. Bank or Litton have wronged the Lucases by
demanding payments the Lucases did not owe and by filing the present lawsuit when
the Lucases were not in default.

Id.
62. The Court summarized the issues from the foreclosure action as:
(1) the terms of the parties’ agreement and the payments due under those terms; (2) the
amount of the Lucases’ payments; (3) the application of those payments; and (4)
whether the Lucases failed to pay as agreed so that U.S. Bank could rightfully take steps
to collect the debt the Lucases owed.

Id.
63. Id. 
64. Id. at 467.
65. 936 N.E.2d 201 (Ind. 2010).



1018 INDIANA LAW REVIEW [Vol. 45:1011

granted, vacating the judgment and five percent allocation of fault to TRW.66  In
affirming the verdict against co-defendant Ford, the court rejected Ford’s
contention that reversal with retrial was required if the court found any one, but
not all, of plaintiff’s liability theories to be based on insufficient evidence.67

Daniel Moore’s estate brought a wrongful death action against Ford and
seatbelt manufacturer TRW after Moore died from injuries sustained in a car
accident in which he was ejected through the sunroof of his Ford Explorer,
despite wearing his seatbelt, following a tire failure.68  The jury found total
damages to be $25,000,000 and allocated thirty-three percent fault to Moore,
thirty-one percent fault to Ford, thirty-one percent fault to nonparty Goodyear
Tire and Rubber Company, and five percent fault to TRW.69

The court determined that TRW’s motion for judgment on the evidence
should have been granted pursuant to Trial Rule 50(A) due to insufficient
evidence.  The court restated its previously-articulated standards when reviewing
a motion for judgment on the evidence, examining the “evidence and the
reasonable inferences drawn most favorable to the non-moving party,”70 reversing
“only when ‘there is no substantial evidence supporting an essential issue in the
case,’”71 and requiring that the “evidence must support without conflict only one
inference which is in favor of the defendant” to overturn a trial court’s denial of
a motion for judgment on the evidence.72

In this case, the plaintiff’s theory of liability against TRW was seatbelt design
negligence.73  However, Ford contracted with TRW to manufacture seatbelts
according to Ford’s specifications, and because “there [was] no evidence that
TRW was authorized under its contract . . . to substitute and supply . . . an
alternative seatbelt design,”74 the evidence was “insufficient to establish that
TRW . . . failed to exercise reasonable care under the circumstances in designing
the seatbelt assembly involved in the incident.”75  As to TRW, the “mere
availability of an alternative seatbelt design [did] not establish negligent design
by a defendant that lacks the authority to incorporate it into the assembled
vehicle.”76 

The court also determined that, because there was insufficient evidence for
a jury to reach a product liability verdict as to Goodyear had it been a named
party, there was insufficient evidence to support its allocation of fault as a

66. Id. at 228.
67. Id. at 211.
68. Id. at 207.
69. Id. 
70. Id. at 214 (quoting Kirchoff v. Selby, 703 N.E.2d 644, 648 (Ind. 1998)).
71. Id. (quoting Kirchoff, 703 N.E.2d at 648)).
72. Id. (quoting Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993)).
73. Id. at 215.
74. Id. at 216.
75. Id. 
76. Id.



2012] CIVIL PROCEDURE 1019

nonparty.77
In affirming the verdict against Ford, the court addressed and rejected Ford’s

argument that a finding of insufficient evidence to support any, but not all, of the
plaintiff’s theories of liability against Ford would require reversal with retrial
because Ford was denied directed verdicts.78  Ford cited a line of previous Indiana
cases from when “code pleading” governed procedure to argue that appellate
courts must “presume the general verdict was based on the bad theory . . . unless
it affirmatively appears that the verdict rests upon the [good theory].”79  While the
court found Ford’s request to modify Indiana’s rule favoring affirmance of a
general verdict “immaterial”80 because both of the liability theories presented to
the jury (seatbelt system design and sunroof defective design) were each
supported by sufficient evidence, the court expressly declined to consider
deviation from Indiana law recognizing that a general verdict will be affirmed
where there is “any evidence” to support it.81 

F.  Motion to Correct Error
In Walker v. Pullen,82 the supreme court held that the findings made by the

trial court in granting a new trial to correct an error in prior proceedings were
insufficiently general and failed to state whether the verdict was against the
weight of the evidence or clearly erroneous.83

David Pullen won a jury verdict against Debra Walker following a car
accident but sought a new trial, claiming that the amount of damages awarded to
him was against the weight of the evidence.84  Pullen sought total damages of
$25,019.50, but the jury awarded him $10,070.00, indicating that this amount
represented his physical therapy and initial medical assessment expenses.85  In his
motion to correct error, Pullen argued that the jury award did not fully reflect his
physical therapy expenses and initial medical assessment.86  In a three-paragraph
ruling granting Pullen’s motion, the trial court determined that: 

77. Id. at 226.  While it could be “reasonably inferred that the rollover event was precipitated
by the failure of a Goodyear tire,” there was “no evidence establishing whether it resulted from a
tire defect attributable to Goodyear or from normal wear and tear, underinflation, a slow leak, a
road hazard or puncture, or any other cause.”  Id.

78. Id. at 211.
79. Id. (citation omitted) (alterations in original).
80. Id. 
81. See id. (citing PSI Energy, Inc. v. Roberts, 829 N.E.2d 943, 950 (Ind. 2005); Epperly v.

Johnson, 734 N.E.2d 1066, 1070 (Ind. Ct. App. 2000); Tipmont Rural Elec. Membership Corp. v.
Fischer, 697 N.E.2d 83, 86 (Ind. Ct. App. 1998), aff’d, 716 N.E.2d 357 (Ind. 1999); Picadilly, Inc.
v. Colvin, 519 N.E.2d 1217, 1221 (Ind. 1988)).

82. 943 N.E.2d 349 (Ind. 2011).
83. Id. at 352.
84. Id. at 351.
85. Id.
86. Id. 



1020 INDIANA LAW REVIEW [Vol. 45:1011

The undisputed medical testimony in this case established that Plaintiff’s
medical bills . . . were for appropriate treatment of injuries suffered [as
a result of Defendant’s negligence]. . . . Those medical bills totaled
$12,250.00.  The jury’s verdict was less than those medical bills. . . .
There was also undisputed medical testimony that Plaintiff endured pain
and suffering for a minimum of five months. The jury’s verdict obviously
contained no award for that, however minimal.87

Admonishing courts to tread “[c]arefully as the [t]hirteenth [j]uror,”88 the
court cited the language of Trial Rule 59(J) requiring “special findings of fact
upon each material issue or element of the claim or defense upon which a new
trial is granted” and determination as to whether the verdict was “against the
weight of the evidence or . . . clearly erroneous as contrary to or not supported by
the evidence.”89  The court affirmed its requirement of strict compliance with
Trial Rule 59(J), reasoning that “[s]pecific findings are necessary to temper the
use of the ‘extraordinary and extreme’ power to overturn a jury’s verdict by
assuring that the decision is based on a complete analysis of the law and facts.”90 

In reversing the finding of the trial and appellate court and directing that the
jury verdict be reinstated,91 the court cited the trial court’s failure to state whether
the verdict was “against the weight of the evidence or clearly erroneous.”92  The
court briefly discussed potential reasoning for the jury awarding its determined
amount,93 and found that the trial court’s statement that the evidence was
“undisputed” as to damages was not a “sufficient special finding to justify
supplanting the jury’s verdict,” nor did the findings suggest “that this was an
unjust result.”94 

G.  Review of Court’s Findings and Judgment
In In re I.A.,95 a father appealed the trial court’s decision to terminate his

parental rights.96  The supreme court found that, when implementing the “clearly
erroneous” standard of review set forth in Trial Rule 52(A) to determine whether
to set aside a trial court’s findings or judgment, the “clear and convincing”
standard mandated by statute for parental termination proceedings should be used
to determine whether the evidence supported the findings, and whether the

87. Id. 
88. Id. at 352.
89. Id. (quoting IND. TRIAL R. 59(J)).
90. Id. (quoting Nissen Trampoline Co. v. Terre Haute First Nat’l Bank, 358 N.E.2d 974, 978

(Ind. 1976)).
91. Id. at 351.
92. Id. at 352.
93. Id. at 353.
94. Id. 
95. 934 N.E.2d 1127 (Ind. 2010).
96. Id. at 1132.



2012] CIVIL PROCEDURE 1021

findings supported the judgment.  This harmonized the statutory burden of proof
for termination proceedings with the language of Rule 52(A).97  Thus, the court
held that “to determine whether a judgment terminating parental rights is clearly
erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment.”98

The trial court terminated the parental rights of both the child’s mother and
father, but only the father appealed.99  The court determined that, with regard to
the father, the Perry County Department of Child Services (DCS) failed to
demonstrate by clear and convincing evidence that there was:  (1) “a reasonable
probability that the reasons for placement outside the home of the parents [would]
not be remedied;” or (2) a reasonable probability that continuing the father-child
relationship threatened the emotional or physical well-being of the child, as was
required in order to terminate a parental relationship involving a child in need of
services.100  In this case, the child was initially removed from the mother’s home
and placed in foster care due to lack of supervision, but the father did not reside
with the mother at that time.  Neither the trial court’s order nor the record
indicated what led DCS to place the child in foster care, rather than with the
father.101  The trial court based its determination that the continuation of the
parent-child relationship posed a threat to the child’s well-being on a case
manager’s belief that there was a lack of bonding between the father and child,
but the case manager did not testify specifically that continuation of the parent-
child relationship with respect to the father posed a threat.102  The court suggested
that state’s wardship of the child continue until the father had “a chance to prove
himself a fit parent for his child,”103 and concluded that “[t]he involuntary
termination of parental rights is the most extreme sanction a court can impose on
a parent . . . intended as a last resort, available only when all other reasonable
efforts have failed.”104

II.  INDIANA COURT OF APPEALS DECISIONS

A.  Service and Sufficiency of Process
In Guy v. Commissioner, Indiana Bureau of Motor Vehicles,105 the court of

appeals found that the trial court lacked personal jurisdiction over a plaintiff’s
petition for an order to renew his driver’s license, where the plaintiff served the

97. Id.
98. Id.
99. Id. at 1132 n.4.

100. Id. at 1135-36; see also IND. CODE § 31-35-2-4(b)(2) (2011).
101. In re L.A., 934 N.E.2d at 1134.
102. Id. at 1135-36.
103. Id. at 1136.
104. Id. (citations omitted).
105. 937 N.E.2d 822 (Ind. Ct. App. 2010).



1022 INDIANA LAW REVIEW [Vol. 45:1011

Commissioner of the Bureau of Motor Vehicles but failed to serve the Attorney
General as required by Indiana Trial Rule 4.6(A)(3) and the Indiana
Administrative Orders and Procedures Act.106 

The appellate court distinguished prior case law, Evans v. State,107 where a
plaintiff served the Governor and the Attorney General with a summons but failed
to serve the head of the Indiana Family and Social Services Administration
(FSSA) with the suit.108  In that case, the court of appeals relied on Indiana Trial
Rule 4.15(F) to cure the defective service made to the Governor as opposed to the
secretary of the FSSA.109  The Guy court distinguished Evans and found it not
controlling:  “Because there was no attempt at serving the [a]ttorney [g]eneral,
Trial Rule 4.15(F) cannot be used in this case to cure any defective service to the
[a]ttorney [g]eneral.”110  The court concluded that Guy’s service of process was
ineffective and that the trial court lacked personal jurisdiction over the BMV
Commissioner such that it could not enter any order in the case, requiring the
appellate court to vacate the lower court’s denial of Guy’s petition.111

In Cotton v. Cotton,112 the court of appeals held that a summons served on a
wife in a dissolution action was insufficient to satisfy due process because it did
not contain a statement that if the wife failed to appear or otherwise respond, a
decree could be entered without notice.113  After Mr. Cotton filed his petition to
dissolve the marriage, his wife was served with a summons that stated:

You have been sued by the Petitioner in the Kosciusko Circuit Court
. . . . The nature of the lawsuit and the demand made against you are
stated in the Petition for Dissolution of Marriage which is served on you
with this Summons.

You may personally appear in this action or your attorney may
appear for you.  You must appear before the Court if directed to do so
pursuant to a Notice, an Order of the Court, or a Subpoena.  You may
file a response to the Petition prior to submission of the Petition at final
hearing which may be tried or heard after the expiration of sixty (60)
days from the date of filing of the Petition for Dissolution of Marriage or
from the date of the publication of the first Notice to a non-resident.114

Mrs. Cotton did not appear personally or by counsel and did not respond to
the petition because she believed that the two were attempting reconciliation and

106. Id. at 823.
107. 908 N.E.2d 1254 (Ind. Ct. App. 2009).
108. Guy, 937 N.E.2d at 824-25 (citing Evans, 908 N.E.2d at 1256).
109. Id. at 825 (citing Evans, 908 N.E.2d at 1258-59).
110. Id.
111. Id. at 826.
112. 942 N.E.2d 161 (Ind. Ct. App. 2011).
113. Id. at 163.
114. Id. at 164-65. The court also noted that the summons was typewritten and prepared by

Mr. Cotton’s attorney, not a form provided by the clerk.  Id. at 165.



2012] CIVIL PROCEDURE 1023

that her husband was not seeking a dissolution.115  Because she never appeared,
she was not notified of the final hearing, which her husband attended and resulted
in the court entering a dissolution decree.116

In response to Mrs. Cotton’s appeal challenging the sufficiency of process,117
the court determined that due process requires that, “at a minimum, a respondent
in a dissolution proceeding be notified of the risk of default for failure to appear
or otherwise respond.”118  The court explained that the language of Trial Rule4
(C)(5)—providing that a summons “shall contain . . . [t]he time within which
these rules require the person being served to respond, and a clear statement that
in case of his failure to do so, judgment by default may be rendered against him
for the relief demanded in the complaint”119—did not “squarely address” the
circumstances of this case because responsive pleadings are not required in
marriage dissolution proceedings.120  However, “the command of Trial Rule
4(C)(5), grounded in due process, is that the respondent in a dissolution
proceeding must be given notice in a ‘clear statement’ of the risk of default for
failure to appear or otherwise respond because that risk is present regardless of
whether a response is required.”121  Without a statement of the consequences for
failing to appear or otherwise respond, the summons “did not satisfy due process
or comply with the intent of Trial rule 4(C)(5).”122  The court also rejected Mr.
Cotton’s argument that the savings provision of Trial Rule 4.15(F) made the
summons sufficient to obtain personal jurisdiction over his wife.123 The court
reversed the dissolution court’s entry of the dissolution decree.124

B.  Pleadings
In Quimby v. Becovic Management Group, Inc.,125 the court of appeals

determined it was proper to dismiss a complaint seeking relief under the Indiana
Wage Payment Statute where the plaintiff had already assigned her claim under

115. Id. at 163.
116. Id.
117. The court paused to note the “not often addressed” distinction between a challenge of

insufficient process and insufficient service of process:  “[a] claim of insufficiency of process
‘challenges the content of a summons; [insufficiency of service of process] challenges the manner
or method of service.’”  Id. at 164 (second alteration in original) (quoting Heise v. Olympus Optical
Co., 111 F.R.D. 1, 5 (N.D. Ind. 1986)). 

118. Id. at 165.
119. IND. TRIAL R. 4(C)(5).
120. Cotton, 942 N.E.2d at 165.
121. Id. 
122. Id. at 166.
123. Id. 
124. Id. 
125. 946 N.E.2d 30 (Ind. Ct. App. 2011), reh’g denied, 2011 Ind. App. LEXIS 938 (May 18,

2011), trans. denied, 962 N.E.2d 1199 (Ind. 2012).



1024 INDIANA LAW REVIEW [Vol. 45:1011

the Indiana Wage Claim Statute to the Indiana Department of Labor.126
After voluntarily leaving her employment with the defendant, plaintiff

Quimby initially, and improperly, sought relief for allegedly unpaid wages under
the Indiana Wage Claim Statute by submitting and assigning her claim to the
Indiana Department of Labor.127  She then filed suit seeking relief under the
Indiana Wage Payment Statute.128  Drawing from the two statutes and prior case
law, the court explained that Quimby should have initially pursued her claim
pursuant to the Wage Payment Statute rather than assign her claim to the Indiana
Department of Labor because she voluntarily left her employment with
defendant.129  However, she effectively assigned her claim to the Department of
Labor and therefore was no longer the real party in interest.130  Because she was
no longer the real party in interest, and the Department of Labor had not ratified,
substituted, or joined in her action, dismissal for failure to state a claim pursuant
to Trial Rule 12(B)(6) was warranted.131

C.  Statute of Limitations
In Holmes v. Celadon Trucking Services of Indiana, Inc.,132 the court of

appeals reversed and remanded the trial court’s determination that a cause of
action for wrongful termination and conversion was time-barred, finding that the
action was commenced within the statutorily allotted time pursuant to Indiana
Trial Rules 3 and 5(F).133

In this case, it was undisputed that the statutorily allotted time period for the
plaintiff to bring his claims against his former employer expired on May 11,
2009.134  The plaintiff, by counsel, mailed his complaint, filing fee, and
appropriate copies of the complaint and summons via certified mail on April 24,
2009, which served to commence the action pursuant to Indiana Trial Rules 3 and
5(F).135  The court rejected Celadon’s argument that “this court should instead
rely on the Chronological Case Summary prepared by the . . . Clerk’s office,
which indicate[d] that the documents were received and filed by the Clerk’s
Office on May 12, 2009” in order to conclude that the documents were not timely

126. Id. at 34.
127. Id. at 32.
128. Id.
129. Id. at 33-34 (discussing the Indiana Wage Payment and the Indiana Wage Claim Statute).
130. Id. at 34.
131. Id. at 33-34.
132. 936 N.E.2d 1254 (Ind. Ct. App. 2010).
133. Id. at 1257-58.
134. Id. at 1257.
135. Id. at 1255.  “A civil action is commenced by filing with the court a complaint . . . , by

payment of the prescribed filing fee . . . , and, where service of process is required, by furnishing
to the clerk as many copies of the complaint and summons as are necessary.”  IND. TRIAL R. 3.
Indiana Trial Rule 5(F) states that filing by certified mail “shall be complete upon mailing.”  IND.
TRIAL R. 5(F).



2012] CIVIL PROCEDURE 1025

filed.136  The court also rejected Celadon’s argument that the action was
commenced outside the statute of limitations because the trial court did not
receive plaintiff’s counsel’s appearance until May 12, 2009.137  Although Trial
Rule 3.1 and Marion County Local Rule 49-TR5-205(E) require that an
appearance be filed by the initiating party “[a]t the time an action is
commenced,”138 as Celadon argued, the court concluded that Celadon 

failed to point to any authority which provides that an action is not
commenced for the purposes of the statute of limitations until both Trial
Rules 3 and 3.1 are satisfied, and we find none.  While there may be
some consequences for failing to timely file an appearance, nothing in
the rules suggests that the delayed filing of an appearance has any impact
on the commencement of the action for statute of limitations purposes.139

In Raisor v. Jimmie’s Raceway Pub, Inc.,140 the court of appeals held, as a
matter of apparent first impression, that the 120-day time limit on the notice
period for the relation back doctrine when amending a complaint to substitute a
plaintiff operated in addition to the statute of limitations on a claim.141

On March 17, 2008, Raisor was allegedly assaulted at Fireman’s Raceway
Pub by another patron.  One year later, Raisor and his wife sent a letter to the pub
informing it that they had hired an attorney, and received a response from the
pub’s insurer denying coverage, listing the insured as FQC Group, Inc. (“FQC”),
and instructing them to send future communication to FQC.142  The Raisors filed
their original complaint against the patron and FQC on October 20, 2009, sending
a summons via certified mail to FQC based on their corporate office address
listed with the Secretary of State.143  However, the offices registered with the
Secretary of State had been vacant since August 2008.144  After the summons was
returned to sender, the Raisors again attempted service via alias summons
obtained through the court on December 16, 2009 and served by copy service on
December 21, 2009.  A courier attached the summons to the door of the vacated
office.145  On February 25, 2010, the Raisors sent a certified letter advising FQC
they intended to seek a default judgment, and the mail carrier noticed the
addressee included “FQC d/b/a Fireman’s Raceway Pub.”146  Realizing that
Fireman’s was located two blocks away, the carrier delivered the letter to
Fireman’s and it was given to the president of Jimmie’s Raceway Pub, the true

136. Id. at 1257.
137. Id. 
138. IND. TRIAL R. 3.1; see also MARION COUNTY LOCAL RULE 49-TR5-205(E) (2012).
139. Holmes, 936 N.E.2d at 1257 (emphasis added).
140. 946 N.E.2d 72 (Ind. Ct. App. 2011).
141. Id. at 80.
142. Id. at 74.
143. Id.
144. Id.
145. Id.
146. Id.



1026 INDIANA LAW REVIEW [Vol. 45:1011

owner of Fireman’s.147 
On March 1, 2010, Fireman’s president obtained a copy of the summons and

complaint and sent a copy to FQC’s president, who was not aware of the suit.148 
On March 3, 2010, FQC requested an enlargement of time to respond to the
complaint, neither denying doing business as Fireman’s nor mentioning
Jimmie’s.149  On March 26, 2010, FQC sought dismissal because it was not the
owner of Fireman’s and identified Jimmie’s as the entity doing business as
Fireman’s.150  The Raisors filed an amended complaint substituting Jimmie’s in
place of FQC on April 28, 2010.151  The trial court granted Jimmie’s motion for
summary judgment after Jimmie’s argued that the action was “barred by the two-
year statute of limitations for personal injury actions and that the amended
complaint could not relate back to the original filing date because Jimmie’s
received notice of the action after the expiration of the 120-day period allowed
under Indiana Trial Rule 15(C).”152

This appeal caused the court to examine how statutes of limitations work
together with Indiana Trial Rule 15(C).  Pursuant to Rule 15(C), 

[w]here no more than 120 days have elapsed since the filing of the
original complaint and (1) where the claim arises out of the same
conduct; (2) the substituted defendant has notice such that he is not
prejudiced by the amendment; and (3) the substituted defendant knows
or should know that but for the misidentification, the action should have
been brought against him, then the amended complaint relates back to the
date of the original complaint.153

Here, the Raisors did not officially substitute the true pub owner as defendant
until more than 120 days after the complaint was filed and forty-two days after
the statute of limitations expired.154  However, Jimmie’s found out that the
Raisors had mistakenly named another party in the time period between the 120-
day amendment expiration and the expiration of the statute of limitations.155  

The court reasoned that the practical effect of Rule 15(C) is to provide a
plaintiff who waits to file a complaint until the last day within the statute of
limitations an additional 120 days following the expiration of the statute of
limitations to substitute a party, so that had the Raisors waited until March 17,
2010—the day the statute of limitations expired—to file their complaint, they
would have had until July 15, 2010 to substitute a party defendant.156  The court

147. Id.
148. Id.
149. Id.
150. Id.
151. Id. at 75.
152. Id.
153. Id. at 76 (citing IND. TRIAL R. 15(C)).
154. Id.
155. Id. at 77.
156. Id. at 78.



2012] CIVIL PROCEDURE 1027

decided that the fact that the Raisors filed their original complaint earlier within
the statute of limitations “should not work to penalize them”157 and that “where
the statute of limitations is still running, the 120-day limit found in Trial Rule
15(C) cannot be permitted to operate prematurely to bar the claim.”158

The court drew the conclusion that “where, before the statute of limitations
expires, a substituted defendant gains knowledge of a lawsuit clearly intended to
be filed against it . . . the 120-day limitation to the relation back doctrine cannot
operate to shorten the time period in which a plaintiff who utilizes the entire
limitations period would be afforded to file an amended complaint.”159  The court
stressed that this conclusion was contingent on the fact that the notice
requirements of Rule 15(C) were otherwise met within the statute of
limitations.160  “Thus,  because the statute of limitations had not expired when
Jimmie’s discovered the Raisors’ misidentification of the pub owner defendant,
Jimmie’s was not prejudiced by the trial court’s action in granting the Raisors
leave to file their amended complaint,”161 and the trial court erred when it granted
summary judgment in favor of Jimmie’s.162 

D.  Discovery
In In re Beck’s Superior Hybrids, Inc.,163 the court of appeals held that

Monsanto’s use of Indiana Trial Rule 28(E) to compel compliance with a
subpoena duces tecum was preempted by the Federal Arbitration Act, which
requires an arbitration panel to petition the United States district court in which
the panel sits to compel a nonparty to appear before it or produce documents.164

Monsanto initiated arbitration against Pioneer Hi-Bred International and its
parent company, E.I. Dupont de Nemours & Company (collectively, “DuPont”),
relating to corn and soybean license agreements which required arbitration in
New York City, subject to the Federal Arbitration Act.165  At Monsanto’s request,
the arbitration panel issued a subpoena duces tecum to Beck’s Superior Hybrids,
Inc. (“Beck’s”), ordering Beck’s to appear at a hearing in Indiana before one of
the arbitration panel members, and to produce business records relating to
Monsanto’s claim.  After Beck’s counsel informed Monsanto that it would not
comply, Monsanto utilized Indiana Trial Rule 28(E)166 to file a petition to assist

157. Id. 
158. Id. at 79.
159. Id. 
160. Id.
161. Id. 
162. Id. at 80.
163. 940 N.E.2d 352 (Ind. Ct. App. 2011).
164. Id. at 368.
165. Id. at 354.
166. Indiana Trial Rule 28(E) provides, in part, that “[a] court of this state may order a person

who is domiciled or is found within this state to give his testimony or statement or to produce
documents or other things, allow inspections and copies and permit physical and mental



1028 INDIANA LAW REVIEW [Vol. 45:1011

and obtain an order from the Hamilton County Superior Court requiring Beck’s
to comply and attend the hearing before one of the New York arbitrators in
Atlanta, Indiana.167 

Beck’s argued, and the court of appeals agreed, that Section 7 of the Federal
Arbitration Act preempts Indiana Trial Rule 28(E).168  Section 7 of the Federal
Arbitration Act states, in part, that: 

The arbitrators . . . may summon in writing any person to attend before
them or any of them as a witness and in a proper case to bring with him
or them any book, record, document, or paper which may be deemed
material as evidence in the case. . . . [I]f any person or persons so
summoned to testify shall refuse or neglect to obey said summons, upon
petition the United States district court for the district in which such
arbitrators, or a majority of them, are sitting may compel the attendance
of such person or persons before said arbitrator or arbitrators . . . .169

The court looked to federal case law to determine that an arbitration party
seeking nonparty discovery via subpoena is limited to section 7 as the vehicle to
enforce the subpoena and “must do so according to its plain text.”170  The court
determined that the plain terms of Section 7 “requires the enforcement of an
arbitration panel’s nonparty subpoena to be brought in the federal forum” and that
the “limited federal jurisdiction for enforcement is a reflection of Congress’
desire to keep arbitration simple and efficient, ‘to protect non-parties from having
to participate in an arbitration to a greater extent than they would . . . in a court
of law,’ and not to burden state courts with incidental enforcement procedures.”171 

The court acknowledged that in this instance, where the district court of New
York lacked jurisdiction over non-party Beck’s, the FAA created a “gap in
enforceability.”172 However, the court determined, based on federal case law, that
such “‘gaps’ were an intentional policy choice by Congress,” that “Monsanto may
not use an Indiana trial rule to circumvent the jurisdictional and territorial
limitations intended by Congress,” and that “the trial rule must yield to the federal
statute.”173  Monsanto’s attempt to use Trial Rule 28(E) where a federal forum
was unavailable frustrated Congress’ intent “to limit these petitions to the federal
courts,”174 and the court concluded that the trial court’ judgment for Monsanto on
its petition to assist was in error, reversing and remanding with instructions to

examinations for use in a proceeding in a tribunal outside this state.”  IND. TRIAL R. 28(E).
167. Beck’s Superior Hybrids, Inc., 940 N.E.2d at 354.
168. Id. at 361.
169. Id. at 358 (quoting 9 U.S.C. § 7 (2006)).
170. Id. at 359 (quoting Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549

F.3d 210, 218 (2d Cir. 2008)).
171. Id. at 362-63.
172. Id. at 368.
173. Id.
174. Id. at 363.



2012] CIVIL PROCEDURE 1029

dismiss the petition.175

E.  Class Action Certification
In Farno v. Ansure Mortuaries of Indiana, LLC,176 the court of appeals held

that the trial court did not err in making its class certification ruling based on the
factual and procedural posture of the case at the time, and that the trial court did
not abuse its discretion when it denied class certification on superiority grounds
pursuant to Indiana Trial Rule 23 based on other lawsuits involving different
claims and parties, and the pending sale of the defendant cemetery.177

Angela Farno sought class certification of her suit against Ansure Mortuaries
of Indiana, its former owner, Memory Gardens Management Corp., and other
entities regarding alleged misappropriation of millions of dollars from statutorily-
mandated cemetery trust accounts.178  Prior to the filing of this complaint, as a
result of an action by the Indiana Securities Commissioner alleging violations of
the Indiana Securities Act, a receiver had been appointed to take control of the
assets and operations of Ansure and Memory Gardens and to organize and
account for the trust fund assets at issue.179  Following Farno’s complaint, the
receiver filed a complaint asserting claims against many of the same parties as did
Farno’s, reciting many of the same facts, asserting many similar claims, and
seeking reimbursement of the funds to the trust.180  Prior to the ruling on class
certification, the trial court dismissed certain claims relating to perpetual care
cemetery services asserted by another representative plaintiff, leaving Farno as
the only named plaintiff.181

The trial court denied Farno’s motion for class certification, finding that this
class action was “not superior to other available methods for the fair and efficient
adjudication of the issues in controversy”182 under Indiana Trial Rule 23(B)(3)
based on the receiver’s actions and proceedings “already ongoing to resolve or
remediate the damage done to the Ansure Trusts.”183

On appeal, the court first addressed and disregarded Farno’s contention that
the trial court improperly considered the merits of the class action claims when
determining that the class action was not superior.  Citing federal case law, the
court stated that “‘[i]t is a settled question that some inquiry into the merits at the
class certification stage is not only permissible but appropriate to the extent that
the merits overlap the Rule 23 criteria.’”184

175. Id. at 368.
176. 953 N.E.2d 1253 (Ind. Ct. App. 2011).
177. Id. at 1255.
178. See id. at 1255-58.
179. Id. at 1257.
180. Id. at 1260-61.
181. Id. at 1263.
182. Id. at 1267.
183. Id.
184. Id. at 1270 (quoting In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d



1030 INDIANA LAW REVIEW [Vol. 45:1011

Farno also argued that the trial court should not have considered the Indiana
Securities Commissioner’s or the receiver’s actions in its superiority analysis on
the grounds that “[n]o Indiana court has ever before held that actions brought by
other parties are superior to a class action to adjudicate the controversy between
class members and defendants, much less other actions relating to different
claims, different damages, different defendants.”185  However, the court cited and
quoted at length a Ninth Circuit opinion, Kamm v. California City Development
Co.,186 as the leading case supporting the proposition that actions brought by third
parties—such as an Attorney General or State Commissioner—are superior to a
class action suit.187

The court also affirmed that a court is not limited to the four factors
enumerated in Trial Rule 23(B)(3) when determining the issue of superiority and
that it was not error for the trial court to consider non-judicial methods, such as
the pending receivership sale of the cemeteries, when addressing the issue of
superiority.188

Concluding that the trial court did not abuse its discretion in denying the class
certification on superiority grounds, the court surmised:

Farno’s stated purpose for requesting class certification was to “resolv[e]
the customers’ claims to restore the pre-need trust funds and to ensure
that customers’ pre-paid burial services and merchandise will be
provided when they pass away.”  However, the Securities
Commissioner’s Action, the Receiver’s Action, and the pending sale of
the cemeteries were all geared toward restoring both the pre-need trust
funds and the perpetual care trust funds, which would in turn ensure both
that the customers’ pre-paid burial services and merchandise will be
provided when they pass away and that their burial sites will be cared for
in perpetuity.  As such, these alternative methods were clearly better
suited for “handling the total controversy,” in the words of the Federal
Rules Advisory Committee.189

F.  Voluntary Dismissal
In Goldberg v. Farno,190 a companion case to Farno v. Ansure Mortuaries of

Indiana, LLC, the court affirmed the trial court’s preliminary approval of a
settlement agreement reached between Farno and various defendants, over
objection from defendant Goldberg.191  While Farno sought an interlocutory

6, 24 (1st Cir. 2008)).
185. Id. at 1271.
186. 509 F.2d 205 (9th Cir. 1975).
187. Farno, 953 N.E.2d at 1272-74.
188. Id. at 1275.
189. Id. at 1275-76 (citation omitted).
190. 953 N.E.2d 1244 (Ind. Ct. App. 2011).
191. Goldberg, 953 N.E.2d at 1246.



2012] CIVIL PROCEDURE 1031

appeal of the trial court’s denial of class action certification,192 she reached a
settlement agreement with various defendants, and the trial court entered an order
granting preliminary approval of the settlement and certifying the plaintiff class
for settlement purposes.193  Goldberg, who was alleged to have issued worthless
debentures to the cemetery trust accounts at issue in order to conceal the alleged
misappropriation of funds, did not participate in, and objected to, the
settlement.194

The court adopted the “plain legal prejudice” standard applicable to Federal
Rule of Civil Procedure 41(A)(2) to Indiana Trial Rule 41(A)(2) for determining
“whether a non-settling defendant, such as Goldberg, has standing to challenge
a partial settlement to which it is not a party, whether in ‘a class action or simply
ordinary litigation.’”195 The court agreed with Farno that “Goldberg has failed to
establish plain legal prejudice in this case.  It is undisputed that the class
settlement did not interfere with Goldberg’s contractual rights or his ‘ability to
seek contribution or indemnification,’ nor did it strip him of ‘a legal claim or
cause of action.’”196 Finding that Goldberg did not have standing to challenge the
trial court’s ruling, the court affirmed the order approving the proposed partial
settlement.197

G.  Failure to Prosecute
In Indiana Department of Natural Resources v. Ritz,198 the court of appeals

determined that the trial court abused its discretion in dismissing a case for failure
to prosecute pursuant to Indiana Trial Rule 41(E), reasoning that “the desirability
of deciding this case on the merits is of particular import because of the alleged
public interest in the disputed property,”199 and the minimal prejudice in the delay
of prosecution supported the reversal and remand.200

This dispute involved certain real estate of which both the Indiana
Department of Natural Resources (DNR) and the Ritzes claimed ownership, and
the DNR sought to develop as part of its park system.201  As explained by the
court of appeals, “[t]he procedural history of this case is rather complicated,” and
involved different causes of action:  one of which was filed in 1991, dismissed

192. See supra Part II.E.
193. Goldberg, 953 N.E.2d at 1246.  The settlement parties stipulated that the “superiority”

requirement of Trial Rule 23(B)(3), at issue in Farno v. Ansure Mortuaries of Indiana, LLC, was
met.  Id.

194. Id.
195. Id. at 1252-53 (quoting Agretti v. ANR Freight Sys., Inc., 982 F.2d 242, 247 (7th Cir.

1992).
196. Id. at 1253 (quoting Agretti, 982 F.2d at 247).
197. Id. 
198. 945 N.E.2d 209 (Ind. Ct. App.), trans. denied, 962 N.E.2d 651 (Ind. 2011).
199. Id. at 211.
200. Id.
201. Id.



1032 INDIANA LAW REVIEW [Vol. 45:1011

pursuant to Rule 41(E) in 1998, and reinstated in 2010; the other was filed in
2009, and dismissed on statute of limitations grounds and due to the (reinstated)
pending case in another court.202  After the 1991 case was (again) dismissed under
Rule 41(E) for failure to prosecute, the court of appeals consolidated the two
cases, addressing whether the trial court abused its discretion for dismissing for
failure to prosecute.203  

The court cited several factors considered when determining whether a trial
court abused its discretion in dismissing an action for failure to prosecute:

(1) the length of the delay; (2) the reason for the delay; (3) the degree of
personal responsibility on the part of the plaintiff; (4) the degree to which
the plaintiff will be charged for the acts of his attorney; (5) the amount
of prejudice to the defendant caused by the delay; (6) the presence or
absence of a lengthy history of having deliberately proceeded in a
dilatory fashion; (7) the existence and effectiveness of sanctions less
drastic than dismissal which fulfill the purposes of the rules and the
desire to avoid court congestion; (8) the desirability of deciding the case
on the merits; and (9) the extent to which the plaintiff has been stirred
into action by a threat of dismissal as opposed to diligence on the
plaintiff’s part.204

The court further explained that the “weight any particular factor has in a
particular case depends on the facts of that case.”205  In this case, the court
focused on the desirability of deciding the case on the merits, finding it
significant that the disputed property in this suit was being claimed on behalf of
the public, as “a natural sanctuary for all Indiana citizens,” which “underscore[d]
and elevate[d] the desirability of deciding the validity of the parties’ ownership
claims.”206  Additionally, the court focused on the lack of prejudice on the part of
the defendants, and reasoned that in this case, the defendants “actually may have
received some value” in the delay, as it enabled them to exercise exclusive
control over the property at issue.207

H.  Summary Judgment
In Farley v. Hammond Sanitary District,208 the court of appeals affirmed the

trial court’s decision to strike one statement of opinion within an expert’s

202. Id. at 211-12.
203. Id. at 213-14.
204. Id. at 215 (quoting Olson v. Alick’s Drugs, Inc., 863 N.E.2d 314, 319-20 (Ind. Ct. App.

2007); Lee v. Pugh, 811 N.E.2d 881, 885 (Ind. Ct. App. 2004)).
205. Id.
206. Id.
207. Id. at 218.
208. 956 N.E.2d 76 (Ind. Ct. App. 2011), reh’g denied, trans. denied, 967 N.E.2d 1034 (Ind.

2012).



2012] CIVIL PROCEDURE 1033

affidavit that was “permeated with a legal conclusion,”209 but found that the lower
court abused its discretion by excluding an expert’s statement that was based on
his experience, education and a review of evidence.210

Homeowners sued the Hammond Sanitary District after heavy rain caused a
sewage backup into their basements.211  The plaintiffs submitted an expert witness
affidavit from a professional engineer in opposition to HSD’s amended motion
for summary judgment.  The expert’s first statement of opinion was that “HSD
failed to properly clean its sewers resulting in accumulated obstructions . . .
reducing sewer water carrying capacity, thereby causing these sewer water
backups to all plaintiffs.”212  Within this opinion, the expert made repeated
assertions regarding HSD’s “duty” to clean the sewers.213  The court found this
statement of opinion to be “permeated with a legal conclusion” regarding the
existence of a duty, and that it was not error for the trial court to strike this
statement.214

However, the court of appeals determined it was error for the trial court to
strike another statement of opinion by the same expert, in which he stated that
“HSD failed to properly clean its non-scouring sewers and keep these sewers free
of accumulated debris, thereby . . . causing these sewage backups.”215  The court
found that this statement was based on his experience, education, and a review
of the evidence, including maps of the sewer lines and evaluation of the sewer
flow velocity.216  Thus, the court abused its discretion by striking this statement
of opinion.217

In Booher v. Sheeram, LLC,218 the court of appeals held that the trial court did
not have discretion to accept an untimely filed designation of evidence where
opposing counsel agreed to an extension, but the attorney failed to file a formal
request with the trial court for an extension of time.219  After the defendant in this
suit filed a motion for summary judgment, the plaintiffs filed, and the trial court
granted, two separate extensions of time to file their answer to the motion.220 
Approximately two weeks prior to the extended deadline, plaintiffs’ counsel
requested, and received, a verbal three-week extension from defendant’s
counsel.221  Plaintiffs’ counsel failed to file a formal request with the trial court,

209. Id. at 80.
210. Id. at 80-81.
211. Id. at 78-79.
212. Id. at 80.
213. Id. 
214. Id. 
215. Id.
216. Id. at 80-81.
217. Id. at 81.
218. 937 N.E.2d 392 (Ind. Ct. App. 2011), reh’g denied, 2011 Ind. App. LEXIS 87 (Jan. 18,

2011), trans. denied, 950 N.E.2d 1212 (Ind. 2011).
219. Id. at 392-93.
220. Id. at 393.
221. Id. 



1034 INDIANA LAW REVIEW [Vol. 45:1011

and filed plaintiffs’ material designation of facts in opposition to the summary
judgment and an expert affidavit three weeks after the court-approved
extension.222  On defendant’s motion, the court struck the late-filed documents
and granted summary judgment in defendant’s favor.223

Citing the Indiana Supreme Court’s “bright line rule” for Trial Rule 56(I)
summary judgment response extensions, the court of appeals affirmed that “the
trial court was without discretion to accept the late-filed documents” where the
plaintiffs failed to file an extension request,224 even if the defendant had not
objected to the late filing.225  Although the court encouraged “collegiality among
members of the legal profession and endeavor to promote cooperation and
conflict resolution outside the walls of the courthouse, in certain circumstances
parties must still seek formal relief directly from the trial court.”226  The court also
recognized the “extraordinarily difficult circumstances” which caused the
attorney to seek the informal extension:  an expert who was out of the country
and unable to finish his report, and the attorney’s preparation to undergo a major
surgery.227  However, the court deemed its “proverbial hands . . . tied” regardless
of the circumstances.228

In Christmas v. Kindred Nursing Centers Ltd. Partnership,229 the court of
appeals determined that a plaintiff failed to preserve his right to a summary
judgment hearing pursuant to Trial Rule 56(C) where the court notified plaintiff’s
counsel that the previously-scheduled hearing was cancelled, and the plaintiff did
nothing between that time and the trial court’s ruling.230  The trial court had set
a hearing for defendant’s motion before plaintiff’s response was due and plaintiff
did not request a hearing “because such a request would have been redundant.”231 
The court of appeals found that “it was not a redundant act for [plaintiff] to
request a hearing because without the request the trial court is always free to do
what the trial court did in the present case—determine the efficacy of the
summary judgment motion without a hearing.”232  The court also reasoned that
plaintiff’s redundancy argument was “further weakened by his failure to do
anything after he learned that the trial court intended to rule on the filings.”233

222. Id. 
223. Id. at 394.
224. Id.
225. Id. 
226. Id. 
227. Id. at 395.
228. Id. 
229. 952 N.E.2d 872 (Ind. Ct. App. 2011).
230. Id. at 877.
231. Id.
232. Id.
233. Id. 



2012] CIVIL PROCEDURE 1035

I.  Judgment Involving Multiple Parties
In Forman v. Penn,234 the court dismissed the appeal before it because it had

not been certified for interlocutory appeal, nor had it been authorized as an appeal
from a final judgment pursuant to Trial Rule 54(B) by inclusion of the “magic
language” contained in that rule.235

After teenager Phillip Forman was hospitalized from overdosing on
methadone belonging to his friend’s mother, he sued his friend (Bradley), the
mother (Lisa), and the owner of the home (Penn) where he had ingested the
methadone, alleging negligent supervision and negligence in caring for him after
he could not be wakened.236  The homeowner gave notice of Forman’s claim to
his home insurer, Western Reserve.  Western Reserve intervened, seeking a
declaratory judgment that it had no duty to provide a defense to Forman’s
complaint.237  The trial court granted Western Reserve’s motion for summary
judgment, declaring that there was no coverage under the policy and no duty to
defend.238  Penn and Bradley treated the trial court’s ruling as a final judgment by
filing a motion to correct error.  Western Reserve replied to that motion by citing
Rule 59.239  Penn and Bradley then appealed the grant of summary judgment to
Western Reserve after forty-five days elapsed after their motion and the trial court
failed to make a ruling on their motion.240

The Indiana Court of Appeals dismissed the appeal because it did not result
from an order appealable as of right pursuant to Indiana Appellate Rule 14(A),
nor had there been a request that the trial court certify its ruling for discretionary
interlocutory appeal pursuant to appellate rules.241  The court cited the “bright
line” rule of past Indiana precedent enforcing strict compliance with Trial Rule
54(B), permitting appeals from order disposing of less than all claims in a lawsuit
“only upon an express determination that there is no just reason for delay and
upon an express direction for the entry of judgment.”242  Even though the issue
of Western Reserve’s obligation to provide a defense were “at least in part
distinct from the issues presented in the underlying lawsuit,”243 case law
addressing and rejecting the “‘separate branch’ doctrine . . . that permitted appeals
of orders disposing of portions of lawsuits deemed sufficiently independent of the
remaining issues”244 and the “interest of certainty as to whether an appeal lies or

234. 938 N.E.2d 287 (Ind. Ct. App. 2010), trans. denied, 962 N.E.2d 639 (Ind. 2011).
235. Id. at 288-90.
236. Id. at 288-89.
237. Id.
238. Id. at 289.
239. Id. 
240. Id. 
241. Id. 
242. Id. at 289-90 (quoting IND. TRIAL R. 54(B)).
243. Id. at 290.
244. Id.



1036 INDIANA LAW REVIEW [Vol. 45:1011

not,”245 required the court to dismiss the appeal and affirm the rule that necessary
“magic language” of Trial Rule 54(B) was required in the judge’s order disposing
of the claims as to one of the parties.246

J.  Motion to Set Aside Default Judgment
In Allstate Insurance Co. v. Love,247 the court of appeals held that an

insured’s attorney’s failure to notify the insurer’s counsel of a lawsuit before
moving for default judgment did not constitute “misconduct” pursuant to Trial
Rule 60(B)(3).248  Love filed a complaint against his insurer, Allstate, asserting
underinsured motorist benefits after he was injured by another driver in a car
accident.249  Prior to filing this suit, Love’s attorney, Pierce, had been in regular
communication with different Allstate claim representatives during the resolution
of the claims between Love and the other driver.250  Allstate never advised Pierce
that it had retained defense counsel for the claim.251  After Love and Allstate
disagreed as to coverage regarding a lift chair to make Love’s van accessible to
him, Pierce received a call from Dietrick, informing him that Allstate had
contacted Love regarding the issue.  Dietrick then followed up by emailing Pierce
case law regarding the issue of coverage as to the van lift chair.252 

Pierce ultimately filed a complaint against Allstate on behalf of Love alleging
breach of contract for failure to pay uninsured motorist benefits and obtained a
$225,000 default judgment against Allstate.253  When Pierce filed the complaint,
he sent a filed marked courtesy copy to the claim representative he had most
recent interactions with, and this claim representative forwarded the complaint to
Allstate’s Central Processing Unit in Ohio in order for defense counsel to be
assigned to the case.254  Dietrick ultimately appeared on behalf of Allstate after
the court had entered default judgment.255 

To the trial court and on appeal from the trial court’s denial, Allstate argued
that Pierce’s failure to provide a notice of default judgment to Dietrick constituted
“misconduct” under Trial Rule 60(B)(3),256 which provides that a default
judgment may be set aside for “fraud . . . , misrepresentation, or other misconduct
of an adverse party.”257  The appellate court reviewed and discussed Indiana

245. Id. 
246. Id.
247. 944 N.E.2d 47 (Ind. Ct. App. 2011).
248. Id. at 52.
249. Id. at 50.
250. Id. at 49.
251. Id. 
252. Id. 
253. Id. at 50.
254. Id. 
255. Id. 
256. Id.
257. IND. TRIAL R. 60(B)(3).



2012] CIVIL PROCEDURE 1037

Supreme Court precedent relied on by Allstate.  In Smith v. Johnston,258 the court
looked to the Rules of Professional Conduct and determined that attorney
misconduct under these Rules could serve as “misconduct” for purposes of Trial
Rule 60(B)(3).259  In Smith, the court determined that “‘a default judgment
obtained without communication to the defaulted party’s attorney must be set
aside where it is clear that the party obtaining the default knew of the attorney’s
representation of the defaulted party in that matter.’”260

The court of appeals distinguished Smith from the facts in this case to find
that Pierce did not commit misconduct subject to relief under Rule 60(B)(3).261 
In Smith, the plaintiff’s counsel “clearly knew” that the defense counsel
represented the defendant doctor, as the two attorneys had worked together
through the medical review panel proceedings prior to the civil suit, and the
plaintiff’s counsel had continued to communicate with the doctor’s counsel after
those proceedings.262  Pierce, in contrast, “had no specific knowledge that
Dietrick represented Allstate throughout the entire claim” and Dietrick’s
“involvement in the case was limited to the issue of payment of a lift chair for
Love’s van.”263  The interaction between Pierce and Dietrick was limited to one
conversation and email exchange.264  The court concluded that “because Pierce
had no clear knowledge that Dietrick represented Allstate throughout the whole
claim and because Allstate did not clearly advise Pierce that Allstate retained
Dietrick for this claim, Pierce had no duty to provide notice to Dietrick before
seeking a default judgment.”265

K.  Jury Instructions
In Johnson v. Wait,266 the court of appeals noted that the trial court did not

follow the proper procedure for hearing objections to jury trial instructions as set
forth within Trial Rule 51(C), but found that there was no reversible error because
the parties agreed to the procedure used by the court.267  At trial, the court heard
the objections after the jury had been instructed and retired to deliberate.268 
Citing prior case law interpreting Trial Rule 51(C), the court explained that the
purpose of the rule governing jury instruction objections “is to guarantee counsel
the opportunity to make objections which will afford the trial court the

258. 711 N.E.2d 1259 (Ind. 1999).
259. Allstate, 944 N.E.2d at 50 (citing Smith, 711 N.E.2d at 1263-64).
260. Id. (quoting Smith, 711 N.E.2d at 1262).
261. Id. at 52.
262. Id. at 51 (citing Smith, 711 N.E.2d at 1261).
263. Id. 
264. Id.
265. Id. at 52.
266. 947 N.E.2d 951 (Ind. Ct. App. 2011), reh’g denied, 2011 Ind. App. LEXIS 1202 (June

23, 2011), trans. denied, 962 N.E.2d 652 (Ind. 2011).
267. Id. at 957.
268. Id. 



1038 INDIANA LAW REVIEW [Vol. 45:1011

opportunity to correct any instructions before giving it to the jury if it is
erroneous.”269  The court cautioned against the court’s practice as being “not the
preferred procedure” but did not find reversible error due to the parties’
acquiescence.270 

The court also found that a jury instruction addressing contributory
negligence was an incorrect and incomplete statement of the law by failing to
inform that the defendants had the burden of proving all the elements, but found
that the argument was waived as the defendants failed to raise this argument to
the trial court.271  The court declined to extend the “fundamental error” doctrine
as argued by the defendants to avoid waiver of their argument.272  The court
explained that “‘[t]he fundamental error doctrine is extremely narrow and
applie[d] only when the error constitutes a blatant violation of basic principles,
the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process.’”273 The court rejected the defendants’
argument, concluding that the defendants “failed to show that the fundamental
error doctrine should be extended to [civil] cases that do not involve liberty
interests or parental rights.”274

L.  Local Court Rules
In Baca v. RPM, Inc.,275 the court of appeals determined that a local court

policy requiring indigent litigants to perform community service in exchange for
filing a claim was an unenforceable “standing order” under Trial Rule 81, which
governs the adoption of local court rules.276  Tippecanoe Superior Court 4 had
“implemented a practice of requiring indigent persons to perform community
service in lieu of filing fees,”277 notwithstanding Indiana Code section 33-37-3-2,
allowing a person to bring a civil action after filing a sworn statement of
indigency.278  Upon challenge by an indigent civil litigant whose claim was
permitted to be filed but hearing was held in abeyance until community service
was performed, the court of appeals found that the court had not followed the
procedure for local rules adoption as set forth in Trial Rule 81.279  Specifically,
the court found that the “practice” of the court was essentially a standing order,
expressly prohibited in Rule 81(A):  “Courts shall not use standing orders (that

269. Id. (quoting Nelson v. Metcalf, 435 N.E.2d 39, 41 (Ind. Ct. App. 1982)).
270. Id.
271. Id. at 958.
272. Id. at 959.
273. Id. (quoting Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010), reh’g denied, 2010

Ind. App. LEXIS 1093 (June 16, 2010), trans. denied, 940 N.E.2d 824 (Ind. 2010)).
274. Id.
275. 941 N.E.2d 547 (Ind. Ct. App. 2011).
276. Id. at 548.
277. Id. at 549.
278. Id. 
279. Id. at 550 (quoting IND. TRIAL R. 81(A)).



2012] CIVIL PROCEDURE 1039

is, generic orders not entered in the individual case) to regulate local court or
administrative district practice.”280 

III.  AMENDMENTS TO INDIANA RULES OF TRIAL PROCEDURE

By order dated September 20, 2011, the Indiana Supreme Court amended
Indiana Rules of Trial Procedure 3.1, 53.1, 59 and 81.1.  The court amended Rule
3.1(A) and (B) by inserting “the attorney representing” and “or the party, if not
represented by an attorney” regarding initiating and responding party
appearances.281  The court amended Rule 3.1(C) by inserting “the attorney
representing” and “or the intervening party or parties, if not represented by an
attorney” regarding intervening party appearances.282  The court deleted from
3.1(E):  “In a motion for leave to withdraw appearance, an attorney shall certify
the last known address and telephone number of the party, subject to the
confidentiality provisions of Sections (A)(8) and (D) above, before the court may
grant such a motion.”283  The court added Rule 3.1(H), which states:

An attorney representing a party may file a motion to withdraw
representation of the party upon a showing that the attorney has sent
written notice of intent to withdraw to the party at least ten (10) days
before filing a motion to withdraw representation, and either:

(1) the terms and conditions of the attorney’s agreement with the party
regarding the scope of the representation have been satisfied, or
(2) withdrawal is required by Professional Conduct Rule 1.16(a), or is
otherwise permitted by Professional Conduct Rule 1.16(b).

An attorney filing a motion to withdraw from representation shall certify
the last known address and telephone number of the party, subject to the
confidentiality provisions of Sections (A)(8) and (D) above, and shall
attach to the motion a copy of the notice of intent to withdraw that was
sent to the party.
A motion for withdrawal of representation shall be granted by the court
unless the court specifically finds that withdrawal is not reasonable or
consistent with the efficient administration of justice.284

Rule 3.1(I) now states:

If an attorney seeks to represent a party in a proceeding before the court
on a temporary basis or a basis that is limited in scope, the attorney shall
file a notice of temporary or limited representation.  The notice shall
contain the information set out in Section (A)(1) and (2) above and a

280. Id.
281. IND. TRIAL R. 3.1(A), (B).
282. IND. TRIAL R. 3.1(C).
283. IND. TRIAL R. 3.1(E).
284. IND. TRIAL R. 3.1(H).



1040 INDIANA LAW REVIEW [Vol. 45:1011

description of the temporary or limited status, including the date the
temporary status ends or the scope of the limited representation.  The
court shall not be required to act on the temporary or limited
representation.  At the completion of the temporary or limited
representation, the attorney shall file a notice of completion of
representation with the clerk of the court.285

The court amended Rule 53.1(E) to state:

Upon the filing by an interested party of a praecipe specifically
designating the motion or decision delayed, the Clerk of the court shall
enter the date and time of the filing in the Clerk’s praecipe book, record
the filing in the Chronological Case Summary under the cause, and
promptly forward the praecipe and a copy of the Chronological Case
Summary to the Executive Director of the Division of State Court
Administration (Executive Director).  The Executive Director shall
determine whether or not a ruling has been delayed beyond the time
limitation set forth under Trial Rule 53.1 or 53.2.

(1) If the Executive Director determines that the ruling or decision has
not been delayed, the Executive Director shall provide notice of the
determination in writing to the Clerk of the court where the case is
pending and the submission of the cause shall not be withdrawn.  The
Clerk of the court where the case in pending shall notify, in writing, the
judge and all parties of record in the proceeding and record the
determination in the Chronological Case Summary under the cause. 

(2) If the Executive Director determines that a ruling or decision has been
delayed beyond the time limitation set forth under Trial Rule 53.1 or
53.2, the Executive Director shall give written notice of the
determination to the judge, the Clerk of the trial court, and the Clerk of
the Supreme Court of Indiana that the submission of the case has been
withdrawn from the judge.  The withdrawal is effective as of the time of
the filing of the praecipe.  The Clerk of the trial court shall record this
determination in the Chronological Case Summary under the cause and
provide notice to all parties in the case.  The Executive Director shall
submit the case to the Supreme Court of Indiana for appointment of a
special judge or such other action deemed appropriate by the Supreme
Court.286

The court removed “in the trial court” from Trial Rule 59(G) so that it states:

If a motion to correct error is denied, the party who prevailed on that
motion may, in the appellate brief and without having filed a statement
in opposition to the motion to correct error in the trial court, defend

285. IND. TRIAL R. 3.1(I).
286. IND. TRIAL R. 53.1(E).



2012] CIVIL PROCEDURE 1041

against the motion to correct error on any ground and may first assert
grounds for relief therein, including grounds falling within sections
(A)(1) and (2) of this rule.  In addition, if a Notice of Appeal rather than
a motion to correct error is filed by a party, the opposing party may raise
any grounds as cross-errors and also may raise any reasons to affirm the
judgment directly in the appellate brief, including those grounds for
which a motion to correct error is required when directly appealing a
judgment under Sections (A)(1) and (2) of this rule.287

The court created Trial Rule 81.1, “Procedures for Cases Involving Family or
Household Members”:

A. Definitions.
(1) An individual is a “family or household member” of another
person if the individual:

(a) is or was a spouse of the other person;
(b) is or was living as if a spouse or a domestic partner
of the other person, this determination to be based upon:

(i) the duration of the relationship;
(ii) the frequency of contact;
(iii) the financial interdependence;
(iv) whether the two (2) individuals are or
previously were raising children together;
(v) whether the two (2) individuals are or
previously have engaged in tasks directed
toward maintaining a common household; and,
(vi) such other factors as the court may consider
relevant.

(c) has a child in common with the other person;
(d) is related by blood or adoption to the other person;
(e) has or previously had an established legal relationship:

(i) as a guardian of the other person;
(ii) as a ward of the other person;
(iii) as a custodian of the other person;
(iv) as a foster parent of the other person; or,
(v) in a capacity with respect to the other person
similar to those listed in clauses (i) through (v).

(2) “Family Procedures” entails coordination of proceedings and
processes, and information sharing among cases in a court or courts
involving family or household members.

B. Type of Cases.  Courts using Family Procedures for a case may
exercise jurisdiction over other cases involving the same family or a
household member of the family.  An individual case to which Family
Procedures is being applied may maintain its separate integrity and

287. IND. TRIAL R. 59(G).



1042 INDIANA LAW REVIEW [Vol. 45:1011

separate docket number, but may be given a common case number if
multiple cases are being heard before one judge.  Subject to applicable
rules and statutes, the individual cases may all be transferred to one judge
or may remain in the separate courts in which they were originally filed.

C. Notice.  A court intending to use Family Procedures for a case must
enter an order notifying all parties of the court’s intention and, within
thirty (30) days after a case is selected, the court shall provide each party
with a list of all cases that have been selected to be heard using Family
Procedures.

D. Designation by Court of Intent to Use Family Procedures and Change
of Judge for Cause.  Within fifteen (15) days after notice is sent that a
case has been selected to be heard using Family Procedures, a party may
object for cause to the designation or selection of a party’s case.

Once notice is sent to the parties that a case has been selected to be
heard using Family Procedures, no motion for change of venue from
the judge may be granted except to the extent permitted by Indiana
Trial Rule 76.  A motion for change of venue from the judge in any
matter being heard in a court using Family Procedures, or any future
cases joined in the court after the initial selection of cases, shall be
granted only for cause.  If a special judge is appointed, all current
and future cases in the court proceeding may be assigned to the
special judge.

E. Concurrent Hearings.  A court using Family Procedures may, in the
court’s discretion, set concurrent hearings on related cases, take evidence
on the related cases at these hearings, and rule on the admissibility of
evidence for each case separately as needed to adequately preserve the
record for appeal.

F. Judicial Notice.  Indiana Evidence Rule 201 shall govern the taking of
judicial notice in courts using Family Procedures.

G. Court Records Excluded from Public Access.  In a court using Family
Procedures, each party shall have access to all records in cases joined
under this Rule, with the exception of court records excluded from public
access pursuant to Administrative Rule 9.  A party may seek access to
such confidential records from another case joined under this Rule by
written petition based on relevancy and need.  Records excluded from
public access shall retain their confidential status and the court using
Family Procedures shall direct that confidential records not be included
in the public record of the proceedings.288

288. IND. TRIAL R. 81.1.