Indiana Law Review


Recent Developments in Civil Procedure

JoEllenLind*

Table of Contents

Introduction 1 158

I. Indiana Supreme Court Decisions 1 160
A. Decisions Clarifying Important Policies 1 1 60

1

.

Attorney's Fees . . . .

»

1 160

2. The Indiana Tort Claims Act and Trial Rule 65(C) 1 1 63
3. Compensation to Appointed Counsel in Civil Matters 1 166

4. Batson Challenges 1 169

5. Tolling the Statute of Limitations 1171

6. Nonparty Defendant Notice and Product Identification for

Purposes of Summary Judgment 1 1 74
7. Availability of Wrongful Death Remedies 1 176

B, Other Significant Indiana Supreme Court Decisions 1181
1. Appeals 1181

2. Attorney Solicitation 1 1 85

3. Corporate Privacy Rights and Injunctions 1 1 85

.4. Juries , 1 186

5. Law of the Case 1 186
6. Local Rules 1 187

7. New Trial Versus Judgment on Evidence 1 1 88
8. Proceedings to Vindicate Minority Shareholder Rights 1 1 89

9. Public Lawsuits 1 189

10. Relief from Judgment Under Rule 60(B) 1191

11. Statute of Limitations , 1 192

12. Summary Judgment 1 193
II. Selected Decisions from the Indiana Court of Appeals 1 194

A. Amendment ofPleadings 1 194
B. Arbitration 1 196

C Asbestos 1 196
D. Attorneys' Fees 1200

E. Bankruptcy Stay 1202

F. Burden ofProof 1203
G. Discovery 1204

K Findings 1205
/. Injunctions, Declarations, and Other Special Relief 1206
J. Instructions 1208

K. Judgment on the Evidence 1208
L Jurisdiction 1209

1. "Jurisdiction over the Case" 1209

2. Personal Jurisdiction 1210

3. Subject Matter Jurisdiction 1211

Professor of Law, Valparaiso University School of Law.



1158 INDIANA LAW REVIEW [Vol. 35:1 157

M Limitation ofActions 1213
N. Local Rules 1214

O. Preclusion 1215

P. Real Party in Interest 1216

Q. Right to Counsel 1217
R. Service/Notice 1218

S. Settlement 1218

T. Standard ofReview 1219
U. Standard ofReview Where No Appellee Brief 1220
V. Standing 1220

W. Summary Judgment 1221
X. Tort Claims Act 1224

III. Indiana's New Jury Rules 1224
IV. Other Indiana Rule Changes 1227
V. Federal Practice 1230

A. Procedural Legislation 1230

1

.

Resident Aliens and the Diversity Statute 1 230
2. Multiparty, Multiforum Litigation 1230

3. Class Actions 1230

4. Television in the Courtroom 123

1

5. Electronic Communications 123

1

6. Government Lawyers 1 23

1

7. Terrorism 123

1

B. U.S. Supreme Court and Seventh Circuit Decisions 123

1

C Rules Changes 1236
1

.

The Federal Rules of Civil Procedure ("FRCP") 1236
2. Seventh Circuit and Local Rule Matters 1237

Introduction

In his January 2002 address to the legislature on the state of the judiciary,
Chief Justice Shepard described the evolution of Indiana's court system as a

process of "re-constructing courts so substantially that the change is a matter of

kind and not of degree."' Courts now foster public policy not just by rendering
decisions for discrete controversies, but by connecting vitally to the community
through a series of innovative programs. It seems especially fitting in the wake
of recent events that Indiana's judiciary should strive to promote the rule of law

through a series of projects to modernize and humanize the delivery of legal

services in the state. Many ofthese programs came to fruition in 2001 , and many
others have made substantial progress. They will affect the nature of civil
practice substantially now and for the future.

For instance, after four years of work, the "Juries for the 21st Century

1. Chief Justice Randall T. Shepard, Address to the Indiana Legislature, State of the

Judiciary, The Changing Nature of Courts (Jan. 16, 2002) [hereinafter "Address"], available at

http://www.in.gov/judiciary/supreme/02stjud.html.



2002] CIVIL PROCEDURE 1159

Project" has been completed, and the court has issued a coherent set of Indiana

Jury Rules in response.^ The Family Court Project has proved so successful that
it has been extended to five additional counties.^ The Indiana Pro Bono
Commission distributed its first funds to local communities to begin the delivery
of legal services/ In response to technological change and as part of a broader

move to improve the statewide management of the courts, the Judicial
Technology and Automation Committee ("JTAC"), headed by Justice Sullivan,

is promoting the advantages ofelectronic communications and records forjudges

and lawyers. These are just a few of the efforts shaping the nature of courts in

the state. Aside from these programs, the Indiana Supreme Court has
promulgated important rule changes affecting not just juries but also the trial

rules,^ administrative rules,^ and even rules for digital transcripts on appeal.^ In

addition, it has revised the process of appeal from the Indiana Tax Court.*
The decisions rendered in 2001 by the Indiana Supreme Court itself are

complex and cover a broad array of topics; throughout they show a keen
sensitivity to the capacity of the judiciary to act as a "strong partner" with the

executive and legislative branches.' One of the most important themes
underlying the court's 2001 cases is the impact of civil litigation on

governmental organizations and the need to mediate between the ability of

citizens to curb improper official action with the freedom of public entities to

function.

The Indiana Court of Appeals has been operating under the new appellate
rules for a year and has issued numerous decisions. Many of them cover
technical issues in civil procedure—for instance, in 2001 a remarkable number
of appellate cases dealt with amendment of pleadings'*^—^while others touch on
some of the most controversial policy questions that a reviewing court could be
asked to resolve.''

At the federal level, court decisions and proposed legislation threatened
increased barriers to plaintiffs' ability to bring actions, particularly class actions.

2. IN Order 01-19 (Dec. 2 1 , 200 1 ). See also Citizens Commission for the Future ofIndiana

Courts, Juriesfor the 21st Century: Reports ofthe Citizens Commissionfor the Future ofIndiana

Courts andthe JudicialAdministration Committee ofthe IndianaJudicial Conference, [hereinafter

Reports], available at http://www.state.in.us/judiciary/citizen/; and Comparison of

Recommendation, available at http://www.state.in.us/judiciary/citizen/comparison.html.

3

.

Press Release, Indiana Supreme Court, Division ofState Court Administration, Supreme

Court Family Court Project Expands (Nov. 16, 2001), available at http://www.in.gov/judiciary/

supreme/press/prl 1 1601.html.

4. See Address, supra note 1

.

5. See infra notes 644-67 and accompanying text.

6. See infra notes 665-67 and accompanying text

7. See i/i/ra notes 668-69 and accompanying text.

8. See infra notes 663-64 and accompanying text.

9. See Address, supra note 1

.

10. See infra?m\\A.

11. 5ee m/ra Part II.C (regarding the plethora of asbestos cases).



1 160 INDIANA LAW REVIEW [Vol. 35: 1 157

Federalism continued as a theme in Supreme Court opinions as well. However,
on the rulemaking level, less significant changes were made than in 2000.

I. Indiana Supreme Court Decisions

A, Decisions Clarifying Important Policies

1. Attorney's Fees.—^The decision by the Indiana Supreme Court with the
largest policy implications may well be State Board of Tax Commissioners v.
Town of St. John}^ It rejects the "private attorney general" exception to the
"American Rule" on fee shifting. Contrary to the legal regimes of other
industrialized democracies—^most notably England—^the winner of a lawsuit in
an American court is typically prohibited from recovering attorney's fees from
the loser, unless there is a specific statute or contract provision authorizing fee

shifting.'^ The rationale for this approach is that fee shifting would have a
chilling effect on plaintiffs' willingness to bring claims that deserve to be

litigated but might still be lost. Ifthe cost of failure would bring with it the risk
of a hefty "fine" in the form of having to pay the winner's fees, the strong

commitment ofthe American legal regime to open access to the courts might be
frustrated.'* Indiana follows the American Rule.'^

Despite the American Rule, courts have developed common law exceptions
to promote competing goals, most notably preventing unjust enrichment and
sanctioning bad faith conduct in litigation. For instance, when litigation results
in the generation of a common store of money to be distributed to a class, the
"common fund" exception allows the court to award the named plaintiff
attorneys' fees from the fund. This prevents class members from being unjustly
enriched by not having to pay their fair share of the costs of the litigation.'^

Similarly, when litigation results in a nonmonetary common benefit that aids an
ascertainable group, courts have applied various techniques to shift fees to the

group for the same reason.'^ Expenses for litigation frivolously initiated can be
recovered in a separate suit for malicious prosecution, and fees are often awarded

12. 751 N.E.2d 657 (Ind. 2001).

13. 5ge Alyeska Pipeline Serv. Co. V. Wilderness Soc'y, 421 U.S. 240, 257 (1975); see a/jo

John Yukio Gotanda, Awarding Costs and Attorneys' Fees in International Commercial

Arbitrations, 21 MiCH. J. InT'l L. 1 (1999).

1 4. See Gotanda, supra note 1 3, at 38. n. 1 72.

15. See Gavin v. Miller, 54 N.E.2d 2^7, 280 (Ind. 1 944).

16. See DouglasLaycxxk. ModernAmericanRemedies : CasesandMaterials 869-70

(2ded. 1999).

17. See, e.g.. Mills v. Elec. Auto-Lite Co., 396 U.S. 375 (1970) (fees assessed against

corporation and thus the cost of litigation that benefitted shareholders of the corporation

derivatively shifted to them); Cmty. Care Ctrs., Inc. v. Ind. Family & Soc. Servs. Admin., 716
N.E.2d 519 (Ind. CL App. 1999). As the Indiana Supreme Court noted in Town of St. John,

sometimes the common benefit theory overlaps or is confused with the private attorney general

exception. See Town ofSt. John, 751 N.E.2d at 658 n.3.



2002] CIVIL PROCEDURE 1161

as a form of sanction against a party's misconduct in litigation as part of the

courts' power to control the behavior of those who appear before them.'^ The
most controversial and least recognized common law exception to the American
Rule is the idea that fees can be shifted when a litigant creates a public good by
acting as a private attorney general.

One functions as a private attorney general when one initiates litigation that
would normally be brought by the government to promote important public

policies, but the government is either unable or unwilling to bear the enforcement

burden involved.'^ The private attorney general exception became extremely
significant in the late 1960s and early 1970s—especially at the federal
level—^when it was used tojustify the award offees in public impact litigation.^^
However, the doctrine posed a substantial risk to public entities, for they were

often the targets of such lawsuits.^' In 1975, the U.S. Supreme Court prohibited

fee shifting in federal courts on a private attorney general theory through the

landmark case, Alyeska Pipeline Service Co. v. Wilderness Society?^ This

decision resulted from a challenge to the Alaska oil pipeline on environmental

grounds. Pursuant to federalism principles, the case had no binding effect on the

states, allowing them to retain the freedom to entertain common law exceptions
to the American Rule for state-based claims litigated in state courts.^^ Until the

Indiana Supreme Court's decision in Town ofSt. John^^ it was not clear what the
status of the private attorney general exception was in Indiana.

The fee issue in Town ofSt. John arose from the protracted litigation that

18. Indiana has codified fee awards based on the notion of "obdurate" litigation behavior.

IND. CODE §34-52-1-1 (1998).

19. See, e.g., Serrano v. Priest, 569 P.2d 1304 (Cal. 1977) (class action brought to reform

California's method of public school financing justified fee shifting on private attorney general

theory).

20. See, e.g., Lee v. Southern Home Sites Corp.. 444 F.2d 143 (5th Cir. 1971) (fees shifted

where private litigation successfully challenged racial discrimination in home sales).

21. To the extent constitutional rights were the subject of litigation, the state action

requirement insured the presence of a governmental entity as a defendant. Moreover, when suits

involved statutes or regulations, the governmental agency charged with their enforcement might be

joined as a party. See, e.g.. La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D. Cal. 1972) (litigants

procured injunction prohibiting the Secretary ofTransportation and others from violating housing

displacement and relocation legislation and were awarded attorneys' fees), ajf'd, 488 F.2d 559 (9th

Cir. 1973).

22. 421 U.S. 240 (1975). In response to the holding ofAlyeska, Congress passed the Civil

Rights Attorneys Fees Award Act of 1976, 42 U.S.C. § 1988. It allows for one-way fee shifting in

civil rights cases.

23. Several federal circuit courts treat the issue ofattorneys' fees as procedural under the £r/e

doctrine and so do not follow state practice on fees in diversity actions. This is apparently the

position of the Seventh Circuit, as least where a Federal Rule of Civil Procedure conflicts with a

state approach. See Minnesota Power & Light Co. v. Hockett 14, Fed. Appx. 703, 706 (7th Cir.
2001) (unpublished opinion) (declining to apply Indiana Trial Rule 65(C) as a basis for fees).

24. 751 N.E.2d 657 (Ind. 2001).



1162 INDIANA LAW REVIEW [Vol. 35:1 157

invalidated Indiana's method of property taxation.^^ The prevailing taxpayers
requested an award of their attorneys' fees from the tax court and it granted the
request. The State Tax Board sought review in the Indiana Supreme Court,
which in an opinion by Chief Justice Shepard, rejected the private attorney
general exception to the American Rule.^^

The court conceded that some Indiana appellate cases appeared to allow the
private attorney general exception, but it characterized those opinions as

involving mere dicta.^^ Thus, to allow the taxpayers' request would be to adopt
the exception, notjust retain it. ChiefJustice Shepard canvassed those states that

follow and reject the private attorney general exception. Those who allow it, do
so to motivate private litigants to undertake complex litigation to vindicate
important public policies, or, in the words of New Hampshire's supreme court,
to insure funding for lawsuits designed to "guard the guardians."^* On the other
hand, states rejecting the doctrine are concerned with "unbridled judicial

authority to 'pick and choose' which plaintiffs and causes of action merit an
award . . . and would not promote equal access to the courts . . . [because] it lacks
sufficient guidelines . . . ."^' The exception would also impose a burden on
judicial resources, forjudges would have to revisit the merits of each case to
determine whether it sufficiently promoted the public good.^°

In light ofthese competing concerns, ChiefJustice Shepard characterized the

private attorney general exception as a "double-edged sword," and concluded that

there is "no proven need" in Indiana for it, given the numerous statutes that

already allow for fee-shifting:

It is apparent that the General Assembly knows how to create statutory
exceptions to the American rule, and that it has been willing to do so

when it deems appropriate. Taking into account the plethora ofstatutory
provisions already on the books, we are not persuaded that the judiciary
needs to adopt a sweeping common-law exception to the American rule
for all public interest litigation.^'

Moreover the test commonly used for applying the doctrine gives rise to a
"slippery slope,"^^ for it injects subjective determinations as to what is socially
important into judicial decisions, it expends judicial resources, and it raises the

questions ofhow to determine what is a benefit and to whom the benefit should

25. State Bd. of Tax Comm'rs v. Town of St John, 751 N.E.2d 657, 657, 658 (Ind. 2001).

26. /^. at 664.

27. /fif. at 659-60.

28. Id. at 661 (quoting Claremont Sch. Dist. v. Governor, 761 A.2d 389, 394 (N.H. 1999)).

29. Id. (quoting N.M. Right to Choose v. Johnson, 986 P.2d 450, 459 (N.M. 1999)).

30. Id

31. Id 2X662.

32. The test looks at **( 1 ) the societal importance ofthe vindicated right; (2) the necessity for

private enforcement and the accompanying burden; and (3) the number ofpeople benefitting from

the decision." Id.



2002] CIVIL PROCEDURE 1163

be given, among other problems."
The court did not emphasize the oft-cited rationale for the private attorney

general exception—^that it is the only way to obtain enforcement of important
rights and policies in the face of recalcitrant governmental entities that are

unwilling, or unable, to act.^"* The court conceded that private litigation was
necessary to force a change in the way the state assessed the value ofproperty in
the very case before it," however, it was also concerned that the private attorney
general justification could make Indiana a magnet for litigators who might be
more motivated by the prospect offees than vindicating rights.^^ It is fair to infer
that one of the court's underlying concerns was the negative impact on
governmental functioning that a geometric increase in public interest lawsuits

might bring.

2. The Indiana Tort Claims Act and Trial Rule 65(C).—^Another decision
that echoes a concern for the impact of procedure on governmental functioning

is Noble County v. Rogers}^ Rogers raised the issue ofwhether a governmental

entity that has procured an invalid temporary restraining order or preliminary

injunction is immune under the Indiana Tort Claims Act from paying the
wronged party damages in compensation under Trial Rule 65(C). On its surface
it looks quite different from the policies surrounding the private attorney general

doctrine, but at a higher level ofdescription, the questions are the same: to what

extent and for what goals should civil litigation be allowed to affect—even
burden—^the activities of public entities?

The remedies for an improperly issued injunction specified in Indiana Trial

Rule 65(C) are quite unique. In most jurisdictions public entities need not

procure a bond in order to seek injunctive relief In those jurisdictions,^* when
a preliminary injunction has been obtained by a government agency in error,

there is no remedy for the wronged defendant for there is no bond to satisfy any
claim for compensation and the governmental entity is typically exempted from

33. Id. at 662>64. In this discussioil the court also included an intriguing comparison ofthe

nature and importance of Indiana constitutional and statutory rights. Id. at 661-62. To remove

some of the court's concems about subjective evaluations of the public good that could be

occasioned by the doctrine, the taxpayers had asked that the private attorney general concept be

limited to constitutional rights. Id. at 662. But, according to Chief Justice Shepard,

because statutory law is far more easily updated than constitutional law, in many areas

it more accurately reflects current social priorities .... It does not belittle the rights

embodied in the Indiana Constitution to say that we cannot presume that constitutional

mention automatically equates to the degree of current social importance.

Id

34. 5ge Serrano V. Priest, 569 P.2d 1304, 1314(Cal. 1977). See gewera//y Matthew D.Zinn,

Policing Environmental Regulatory Enforcement: Cooperation, Capture, and Citizen Suits, 21

Stan. Envtl. L.J. 81 (2002).

35. Town ofSt. John, 75\}^.E.2d at 663.

36. Id at 662.

37. 745 N.E.2d 194 (Ind. 2001).

38. /flf. at 201 (Boehm J., dissenting).



1 164 INDIANA LAW REVIEW [Vol. 35:1 157

paying monies in the absence of a bond.^' However, Indiana Trial Rule 65(C)
specifically provides: "No such security [bond] shall be required of a
governmental organization, but such governmental organization shall be

responsible for costs and damages as may be incurred or suffered by any party
who is found to have been wrongfully enjoined or restrained.'"^^ But, in Rogers
the county argued that this rule violates the immunity granted to it by the ITCA,'*'

because the remedy given a defendant in the trial rule amounts to a tort. The
court of appeals disagreed, characterizing the measure as procedural ."^^

By a 3-2 margin and in an opinion crafted by Justice Sullivan, the court
mediated between the need to protect government employees from "harassment

by litigation or threats of litigation over decisions made while in the scope of
their employment,"*^ and the need to preserve the courts' power to sanction
litigants for improper behavior.^ The court chose not to explicitly characterize
the rule as either one ofprocedure or one of tort—a difficult task since it shows
traits ofboth and employs the term "wrongful." Instead, Justice Sullivan limited

the application of Rule 65(C) to injunctions procured by governmental entities

acting in bad faith. Only in those cases would the ITCA fail to shield
government entities from paying compensation. This was necessary in his view
because, otherwise, the ITCA would be constitutionally infirm."**

The majority noted that the legislature's power to immunize government has
"few limits."*^ However, one of those limits stems from the courts' ability to

sanction those appearing before them, a capacity essential to the courts'

independent function in government.'*^ Moreover, a long line of Indiana cases

makes it clear that the government and its lawyers are subject to sanctions for
litigation misconduct.** An accommodation through statutory interpretation was
warranted:

The parties ask us to resolve this apparent conflict by applying either the
Trial Rule or the ITCA to the exclusion ofthe other. This posture puts
into tension the powers ofcoordinate branches of our state government

by asking us to ignore the pronouncement ofone such branch. However,

we have long held that "if an act admits of two reasonable
interpretations, one of which is constitutional and the other not, we

39. Id at 202.

40. IND. TRIAL Rule 65(c).

41. iND. CODE §§ 34-13-3-1 to -25 (1998).
42. Rogers, 745 N.E.2d at 196.

43. Id at 197 (quoting Celebration Fireworks Inc. v. Smith, 727 N.E.2d 450, 452 (Ind.

2000)).

44. Id

45. IdsLi\99.

46. Mat 197.
47. /^. at 197-98.

48. /d at 198-99.



2002] CIVIL PROCEDURE 1 1 65

choose that path which permits upholding the act.'"*^

The key was the interpretation ofthe rule's reference to "wrongfully." The court
explicitly construed the meaning of that term in Rule 65(C) to require
compensation only when the government acts "with such bad faith and malice
that their actions undermine the authority of the court issuing the restraining

order or inj unction."^° This holding created an appropriate "balance" between

the legislative policy ofthe ITCA and the judiciary's role and inherent power to
sanction litigants. Thus, only in "rare cases" when the acts ofgovernment are so
egregious as to "threaten the proper functioning of the court" would immunity

be stripped and compensation would lie under Trial Rule 65(C).^'
In an intriguing dissentjoined by Justice Dickson, Justice Boehm argued that

the remedial provisions of 65(C) ought to be definitively characterized because

when identified, they sound in contract, not tort. Thus, Rule 65(C) compensation
is totally outside the ICTA." After canvassing the practice ofotherjurisdictions
on injunction bonds and governmental liability, as well as the histories of the

ICTA and Trial Rule 65(C), Justice Boehm concluded that compensating a party
affected by an erroneously issued injunction is a quid pro quo voluntarily

undertaken by the plaintiff to obtain provisional relief.^^ Noting that in the past,

Indiana law required governmental entities to post a bond, he asserted that:

The 1970 changes [to Trial Rule 65] merely replaced the bond
requirement, which plainly directed a contractual obligation of the

governmental entity with a simple requirement that the entity reimburse

directly. Basic contract principles and the doctrine that statutes are to be

construed in harmony . . . lead me to conclude that the action for
"wrongful injunction" is not a tort Ifthe legislature wants to change

that rule of substantive law, it may do so, but the laws on the books do
not provide the immunity Noble County claims.^*

This was because Noble County voluntarily accepted the arrangement imposed
by the rule^^ when it sought a restraining order against Rogers. Moreover, in
Justice Boehm's view, removing governmental immunity solely for bad faith
conduct still conflicts with the ITCA.^^

Regardless ofwhich category best identifies the remedy of Rule 65(C), it is
important to note that the majority's holding is limited to governmental entities.^^

Where private parties are involved, compensation from a bond ought to be

49. Id. at 196, 197 (quoting Price v. State, 622 N.E.2d 954, 956 (Ind. 1993)).

50. /rf. atl97.

51. Mat 199.
52. Id. at 200, 201, 204 (Boehm, J. dissenting).

53. Mat 202-04.
54. Id

55. Id

56. Mat 205-07.
57. Matl97n.4.



1166 INDIANA LAW REVIEW [Vol. 35:1157

available whenever it is later determined that a temporary restraining order or
preliminary injunction should not have issued.

3. Compensation to AppointedCounsel in Civil Matters.—Another opinion
showing the tension statutory enactments can create over the power ofcourts as
a separate and co-equal branch of government is Shales v. Sholes,^^ decided in
December 2001 . It has far reaching significance for pro bono practice because
it clarifies whether an indigent person must have counsel appointed in a civil
matter and whether appointed counsel must be compensated.

Sholes involved a divorce sought by the wife of an inmate serving a life
sentence in state prison.^^ He filed two requests to be allowed to proceed as a
pauper and he also requested a free record.^ The trial court made no findings on
Sholes' indigency status and denied the request to furnish a record. Ajudgment
was entered in which the wife received virtually all the marital property and all
of Sholes' retirement funds. Sholes moved to have the judgment set aside and
also requested appointment of counsel. The trial court did not set the judgment
aside and denied the request for counsel without making findings. The court did,
however, find that Sholes lacked sufficient funds to obtain an appellate transcript

and ordered one at public expense.^' On review, the Indiana Court of Appeals
reversed the trial court's decision not to set the judgment aside,^^ basing its
holding on Indiana Code section 34-1 0- 1 , which governs appointment ofcounsel
for indigents.^^ It concluded that because Sholes had presented sufficient

evidence of his indigency, the judgment should have been set aside.^

Accordingly, all matters after the request for counsel were vacated.

On transfer, the Indiana Supreme Court stated that:

[I]n ruling on an application for appointment in a civil case, the trial

court must determine whether the applicant is indigent, and whether the

applicant, even if indigent, has means to prosecute or defend the case.

58. 760N.E.2d 156 (Ind. 2001).

59. /^. at 157.

60. Id. at 157-58.

61. Mat 158.
62. Id.

63. iND. Code §34-10-1-1 (1998) provides:

Sec. 1 . An indigent person who does not have sufficient means to prosecute or defend

an action may apply to the court in which the action is intended to be brought, or is

pending, for leave to prosecute or defend as an indigent person.

Sec. 2. If the court is satisfied that a person who makes an application described in

section 1 of this chapter does not have sufficient means to prosecute or defend the

action, the court shall:

(1 ) admit the applicant to prosecute or defend as an indigent person; and (2) appoint an

attorney to defend or prosecute the cause.

All officers required to prosecute or defend the action shall do their duty in the case

without taking any fee or reward from the indigent person.

64. 5/zo/e5,760N.E.2datl58.



2002] CIVIL PROCEDURE 1167

If those criteria are met, and there is no funding source or volunteer

counsel, the court must determine whether the mandate of expenditure

of public funds is appropriate in the case."

The court reached this result through a complex series of arguments.
The first issue the court considered was whether appointment of counsel in

a civil case is mandatory or discretionary under Indiana Code section 34-10-1

.

It noted that in 1999, the court of appeals had determined in Holmes v. Jones^
that the plain language ofthe statute mandated appointment of counsel and did

not leave the question to trial court discretion.^^ However, the process of

appointment requires a multilevel inquiry. As Justice Boehm opined,
appointment of counsel is not automatic upon indigency status but also requires

that the indigent be without "sufficient means" to proceed.^* How could one who
is indigent have sufficient means? That might occur when the matter is one
typically undertaken by nonindigents on a pro se basis (e.g., small claims

matters), funded through a contingent fee, one to which a fee shifting statute

applies, or is one for which a nonpaid volunteer attorney is available.^^ However,

ifboth requirements are met—indigency and insufficiency—an attorney must be
appointed. The question then becomes whether the attorney must be
compensated. It is here that controversy arises and an element ofcourt discretion

is re- introduced.

According to the express terms of Indiana Code section 34-10-1-2 an
appointed attorney is prohibited from collecting a "fee or reward from the

indigent person."^° In Justice Boehm's view, this language should not prohibit
payment from other sources for several reasons. First, courts have inherent

power to "incur and order paid all such expenses as are necessary for the holding
of court and the administration of its duties,"^' which has been codified in Trial

Rule 60.5.^^ Second, no other legislation prohibits compensation. Third, if the

65. Id. 2X151.

66. 719 N.E.2d 843 (Ind. Ct. App. 1999).

67. Notwithstanding that the legislature attempted to modify this result, these attempts were

not successful, so in the court's view, the statute had to be taken at face value, Sholes, 760 N.E.2d

atl59n.2.

68. Mat 161.
69. Id

70. iND. CODE §34-10-1-2 (1998).

71

.

Sholes, 760 N,E.2d at 164 (quoting Knox County Council v. State ex rel. McCoimick,

29N.E.2d405,413(1940)).

72. Trial Rule 60.5(A) states:

Courts shall limit their requests for funds to those that are reasonably necessary for the

operation ofthe court or court-related functions. Mandate will not lie for extravagant,

arbitrary or unwarranted expenditures nor for personal expenditures (e.g., personal

telephone bills, bar association memberships, disciplinary fees).

Prior to issuing the order, the court shall meet with the mandated party to demonstrate

the need for said funds.



1 168 INDIANA LAW REVIEW [Vol. 35: 1 157

statute were read to require uncompensated appointment, then it would be
unconstitutional for impressing the services of lawyers in violation of article 1,
section 21 of the Indiana Constitution.^^

While Justice Boehm recognized that attorneys have a duty to provide pro
bono services

—

a point that was central to the dissent—he characterized it as an
obligation ofthe whole profession that could not be imposed on a single attorney
without violating the Indiana Constitution. In reaching this conclusion, the

majority characterized the long and complex history ofIndiana's commitment to
making counsel available to litigants quite differently from Justice Dickson's
characterization in dissent. The majority alleged that early cases construing
article 1, section 21 of the 1851 Indiana Constitution stand for the proposition

that attorneys, like all other persons, cannot have their labor "conscripted" by the

states without compensation. Although the populist view ofthe profession (one
which had allowed any voter to function as an attorney) was eventually replaced
with a regulatory view that includes pro bono service as an ethical requirement,^"*
that change did not impliedly except lawyers from the prohibition of unpaid

services contained in article 1, section 21.^^

In making this analysis, Justice Boehm had to confront Board of
Commissioners v. PollardJ^ which Justice Dickson read (along with other cases)

to authorize mandatory unpaid representation.^^ Justice Boehm distinguished its
facts, in that the Pollard attorney had already rendered the services in issue but

had not been paid by the county. The Pollard court did not require the county
to pay, distinguishing the payment obligation for criminal from civil cases.
Nonetheless in dicta it stated, "An attorney at law cannot, in this state, be
compelled by an order of a court to render professional services without

compensation."^* Noting that the Pollard court did not have to answer the

question of what to do when no volunteer is available. Justice Boehm
distinguished the case by concluding: "Although Pollardrefused to hold that the

statute required payment in civil cases, it also refused to press attorneys into
uncompensated service."^^ Since Pollard, the inherent power of Indiana courts
to order payment of monies to assist in the administration ofjustice has been

established. Given this history, the Sholes majority found that when Indiana

Trial Rule 60.5(B), in relevant part, states:

Whenever a court . . . desires to order either a municipality, a political subdivision of

the state, or an officer of either to appropriate or to pay unappropriated funds for the

operation ofthe court or court-related functions, such court shall issue and cause to be

served upon such municipality, political subdivision or officer an order to show cause

why such appropriation or payment should not be made.

73. IND. Const, art. 1,§21.

74. 5/io/ej,760N.E.2d at 163-64.

75. Mat 164.
76. 55 N.E. 87 (Ind. 1899).

77. Sholesyieo N.E.2d at 167 (Dickson, J., dissenting).

78. Id. at 162 (quoting Bd. of Comm'rs v. Pollard, 55 N.E. 87, 87 (Ind. 1899)).

79. Id.



2002] CIVIL PROCEDURE 1 1 69

Code section 34-10-1 mandates a lawyer's appointment in a civil matter, the
attorney must be compensated, unless she or he volunteers to serve without pay.^°

This, however, does not end the analysis.

As an additional tier of inquiry the court reasoned that when an appointed
lawyer seeks payment under Trial Rule 60.5, payment is only justified when
circumstances warrant the serious measure of a court ordering compensation

from general public funds. This final level of inquiry re-introduces discretion in

the trial court's process ofdetermining whether counsel must be made available
in a civil matter. This is permissible because appointment of counsel in a civil

case is statutory, not constitutional, and so can be balanced against other

concerns:

In most civil cases ... we have only a statutory directive, and there is no
constitutional requirement that counsel be appointed for indigent

litigants As explained, before appointing counsel, the trial court is
to consider the type of case presented to determine whether even an

indigent applicant has "sufficient means" to proceed without appointed
counsel. In addition, the trial court is obliged to consider whether any

specific fiscal or other governmental interests would be severely and

adversely affected by a Trial Rule 60.5 order requiring payment of any

appointed counsel.*'

The majority suggested several relevant factors for courts to consider, many of
which involve the merits of the action at issue—^whether, inter alia, the matter
is "frivolous," whether it raises legal principles that are "insignificant," and

whether it presents a "vendetta."*^ The court ordered a remand in Sholes for a
determination of all these issues but underscored that: "If no uncompensated

attorney is willing to serve and the trial court finds itself unable to order

payment, then ... the statutory obligation to appoint counsel fails as an
unconstitutional order to attorneys to work without compensation."*^ Justice
Boehm argued that ifthe statute were interpreted to obviate courts' discretion at
this level, it would be an unconstitutional intrusion on the judiciary's inherent
powers to administer justice.*^ Thus, while the Sholes majority requires
appointment of counsel in a proper civil case, an indigent's actual ability to

obtain representation is by no means assured.
4. Batson Challenges.—A decision that directly connects constitutional

rights with procedural issues is Ashabraner v. Bowers,^^ a case that underscores

the concern for diversejuries emanating from the Indiana Jury Rules themselves.

The sequence of events in Ashabraner is important. The lawsuit was between

80. Id at 166.

81. Id at 165-66.

82. Id at 166.

83. Id

84. Id

85. 753 N.E.2d 662 (Ind. 2001),



1170 INDIANA LAW REVIEW [Vol. 35:1157

two motorists whose cars collided.*^ During voir dire, the defendant's attorney
exercised a peremptory challenge to the sole African-American potential juror.

The plaintiff—^who was not of the same race as the defendant—made a
^'BatsorC'^^ challenge to the striking ofthe juror, arguing that the juror's answers

showed her to be neutral and intelligent; the inference was that the only basis for
striking thejuror must have been her race.'* Defense counsel gave no real reason
for the? challenge'^ but simply assured the court it was not race-based. The trial
court overruled the plaintiffs objection stating, "peremptory challenges can be

utilized for any reason."^ This statement indicated that the trial court had not

followed the mandate of Batson v. Kentucky^^ which establishes a two-tiered

procedure for questioning. First, a prima facie case must be made by the
objecting party that a challenge is race-based. Ifthat is accomplished, the burden

shifts to the peremptory challenger to give a race-neutral reason for the challenge.

Batson was extended to civil cases in Edmonson v. Leesville Concrete Co.^^
On review the court ofappeals clearly applied Batson, but concluded that the

plaintiff had not made a prima facie case that the challenge was race-based, so
the defendant did not have to give a race neutral reason.

On transfer and by a 3-2 decision, the Indiana Supreme Court found the court
of appeals' ruling erroneous. First, the court noted that McCants v. State^^
established that removing the sole juror of color from the venire is enough to

establish prima facie racial discrimination—^at least in a criminal matter. In the
civil context, it is "evidence ofdiscrimination that must weigh in the balance."^"^

This evidence, coupled with the juror's neutral answers on voir dire and her

apparent competency, was sufficient to shift the burden to the defendant to give
a race-neutral explanation. The majority was particularly concerned that:

"[W]hen a Batson objection has been made, [the objecting party] is

entitled to the benefit of the proposition that peremptory challenges

allow those inclined to discriminate to do so." By fmding that a party
has established a prima facie case where the only minority juror gave

"neutral" answers to jury selection questions but was removed anyway,

we recognize that there may be an unconstitutional discrimination where

86. Id. at 664.

87. This is the informal reference to the requirement of Batson v. Kentucky, 476 U.S. 79

(1986), a criminal case, that when a pattern of peremptory challenges suggests racial bias, the

challenger must provide a race-neutral explanation.

88. Ashabraner, 753 N.E.2d at 665.

89. Later, defense counsel explained that the strike was exercised in order to make room for

another potential juror, a law student, whom the defense believed would be more understanding of

the doctrine of res ipsa loquitur. Id. at 665 n.7.

90. /rf. at666.

91. 476 U.S. 79,96-98(1986).

92. 500 U.S. 614 (1991).

93. 686N.E.2d 1281, 1284 (Ind. 1997).

94. /l5/ia6ra«er, 753 N.E.2d at 667.



2002] CIVIL PROCEDURE 1171

the venire contained a single or a small number of minority jurors. We
believe it appropriate that trial courts make a Batson investigation into
potential discrimination in such circumstances.^^

The Indiana Supreme Court concluded that the lower courts had not handled the
first phase of Batson*s two-tiered procedure properly and remanded without

reaching the second level ofinquiry.^ Nonetheless, it warned that an explanation

for a challenge stating "I did not strike the juror because of race. I struck [the

juror] because ofthe way I saw the jury panel being made up," is not sufficient
under Batson's mandate.^^ Ashabraner shows that the court will carefully

scrutinize the compliance of Indiana's courts with the goal of removing racial

discrimination in jury selection.

5. Tolling the Statute ofLimitations.—With its decisions from City ofSt.
John through Ashabraner, the court shows its clear willingness to confront
difficult policy and theoretical questions,^^ yet its most significant recent

opinions may be ones that impact the nuts and bolts ofeveryday civil litigation.
Leading this group is Ray-Hayes v. Heinamann,^^ which resolves a split in the

court of appeals over the steps to be taken to commence an action for purposes
oftolling the statute of limitations. Moreover, because the court has determined

that something more than mere filing with the clerk's office is required—

a

deviation from federal practice—^the new requirements may pose a trap for the
unwary.'^ A complete understanding of the Indiana requirements for
commencement are essential to the litigator.

The ambiguity over what counts as the beginning of a case for purposes of
tolling can be traced to the court's opinion in Boostrom v. Bach,^^^ a small claims

matter in which the court held that payment of the filing fee, and not the mere
tender of the complaint to the clerk, is necessary to "commence" an action. '°^

95. Id at 668 n. 1 (quoting Henry F. Greenberg, Criminal Procedure, 44 SYRACUSE L. Rev.

189,226(1993)).

96. Chief Justice Shepard and Justice Dickson dissented, asserting that the trial court's

comments did not show definitively that it had not followed Batson. In addition, they concluded

that the defendant had complied with the second aspect of Batson by volunteering a race neutral

reason for striking the juror. At that stage, the dissenters argued that the explanation need not be

"persuasive or even plausible," id. at 669 (Dickson, J., dissenting), but rather that Batson

contemplates a third level of inquiry when the trial judge, taking into account that the objector has

the ultimate burden of persuasion on racial motivation for the challenge, has met that challenge.

Id at 669-70.

97. Id at 666.

98. See generally id. (clarifying Batson objections for racial discrimination to peremptory

strikes of potential jurors); State Bd. of Tax Comm'rs v. Town of St. John, 751 N.E.2d 657 (Ind.

200 1 ) (rejecting private attorney general doctrine as basis for award of attorneys' fees).

99. 760 N.E.2d 172 (Ind. 2002).

100. Id at 174.

101. 622 N.E.2d 175 (Ind. 1993), cert, denied, 513 U.S. 928 (1994).

102. Mat 176-77.



1 1 72 INDIANA LAW REVIEW [Vol. 35:1157

The rationale was that "the commencement ofan action occurs when the plaintiff
presents the clerk with the documents necessary for commencement of suit."'°^
In a footnote the court identified the necessary documents as the complaint, the
summons and the filing fee.^^"* Because Boostrom was a small claims case and
turned on nonpayment of the filing fee, court of appeals' decisions were in
conflict over its applicability to summonses and its precedential value for larger
controversies.

In Fort Wayne International Airport v. Wilhum^^^^ the plaintiff timely
tendered the complaint and fee to the clerk of the circuit court, but did not

provide the summons until shortly after the running ofthe statutory period. The
court of appeals concluded the action was time-barred and treated the footnote
in Boostrom (identifying the summons as an essential document) as
controlling.'^ However, the court of appeals decisions in Ray-Hayes, ^^^ and
later, in Oxley v. Matillo,^^^ limited Boostrom to its particular facts and judged

its references to the summons as dictum. They also justified doing so because
current Trial Rule 3 provides literally that commencement ofan action occurs by
"filing a complaint with the court."'^ Thus it trumped the "dictum" in Boostrom

so that the plaintiffs' tendering of their summonses after the limitations period
did not bar their claims due to untimeliness. The Indiana Supreme Court granted
transfer in Ray-Hayes and made it clear that Boostrom—broadly read—is
controlling.

In Ray-Hayes, the plaintifftimely filed an amended complaint to add Nissan
Motor Company as a new defendant on a products liability claim, but she did not
tender the summons to the clerk until more than four months after the two-year
limitations period had run.''° On these facts, and by a 3-2 decision, the court
found the action time-barred, citing Boostrom^^ It also stated:

Requiring that the summons be tendered within the statute oflimitations
is also good policy, because it promotes prompt, formal notice to

defendants that a lawsuit has been filed. This not only helps to prevent

surprise to defendants, but it also helps to reduce stagnation that might

otherwise occur if the claims could be filed only to remain pending on

103. Id. at 111.

104. Id ax Ml n.2.
105. 723 N.E.2d 967 (Ind. Ct. App.), trans, denied, 735 N.E.2d 237 (Ind. 2000).

106. /c/. at 968.

1 07. 743 N.E.2d 777 (Ind. Ct. App.), trans, grantedsub nom., Nissan N. Am. v. Ray-Hayes,

2002 Ind. LEXIS 1 (Ind. 2001), superceded by Ray-Hayes v. Heinamann, 760 N.E.2d 172 (Ind.

2002).

108. 747 N.E.2d 1179 (Ind. Ct. App.), trans, granted, 2002 Ind. LEXIS 166 (Ind. 2001),

superceded by 762 N.E.2d 1 243 (Ind. 2002).

1 09. Id at 1 1 80; see also iND. TRIAL R. 3.

110. /?ay-//fl7ej, 760N.E.2datl74.

111. Id



2002] CIVIL PROCEDURE 1173

court dockets without notified defendants."^

In addition to these policy concerns, imminent changes in Trial Rule 3 were a
consideration for the majority.''^ These took effect on April 1, 2002 and

explicitly require tender ofthe complaint (or its equivalent), payment ofthe filing

fee, if any, and "furnishing to the clerk of the court as many copies of the
complaint and summons as are necessary" to effectuate service, where service is
required.""^ Now, to begin an Indiana action within any applicable limitations
period, one must tender the complaint, the filing fee and the summons to the
clerk."'

The issue ofthe steps needed to toll a statute of limitations is complicated by
federal practice. The Federal Rules ofCivil Procedure provide that an action is
commenced on the filing ofthe complaint."^ Federal Rule ofCivil Procedure 4
details the requirements ofproper service as a separate matter, but it does provide

that if the summons and complaint are not served on the defendant within 120
days from filing the case must be dismissed without prejudice or the court must

order a specific time within which service must be accomplished."^ Federal

cases establish that in federal matters, commencement occurs on the tendering
ofthe complaint to the clerk,"* and the Seventh Circuit has held that the even the

filing fee is not necessary."' These differences in approach to tolling between

the federal system and Indiana can cause confusion. This is especially true when
a state claim is filed in federal court under diversity jurisdiction, and the federal

court is confronted with the question ofhow to apply the Erie doctrine'^° in light
oiRay-Hayes, The landmark case ofHanna v. Plummer^^^ established that where
a Federal Rule of Civil Procedure directly governs in a diversity action, it

prevails over contrary state practice so long as it is a validly promulgated rule

112. Id.

113. 5ee/>i/ra notes 639-41 and accompanying text.

1 1 4. The new text of IND. Trial R. 3 provides:

A civil action is commenced by filing with the court a complaint or such equivalent
pleading or document as may be specified by statute, by payment ofthe prescribed filing

fee or filing an order waiving the fee, and, where service of process is required, by

furnishing to the clerk as many copies of the complaint and summons as are necessary.

115. In a dissent, with which Justice Dickson concurred, Justice Rucker pointed out that given

the ambiguity in the law existing at the time the claim in Ray-Hayes was filed, it was not clear that

plaintiffshould have had her action time-barred, under a proper construal of T.R. 41(E) (procedure

on dismissals), and T.R. 1 2(B)(6) (dismissals for failure to state a claim for relief). Ray-Hayes^ 760

N.E.2d at 175 (Rucker, J., dissenting).

116. Fed. R. Civ. P. 3.

117. Fed. R. Civ. P. 4.

118. Henderson v. United States, 517 U.S. 654, 657 n.2 (1996).

1 1 9. See Robinson v. Doe, 272 F.3d 92 1 , 922-923 (7th Cir. 200 1 ), reh 'g en banc denied by

2002 U.S. App. LEXIS 585 (7th Cir. 2002); see also FED. R. Civ. P. 5(e).

120. 5ee Erie R.R. V.Tompkins, 304 U.S. 64 (1938).

121. 380 U.S. 460 (1965).



1174 INDIANA LAW REVIEW [Vol. 35:1157

under the Rules Enabling Act,'^^ that is, so long as it is arguably procedural.

However, in Walker v. Armco Steel, Corp. '^^ the U.S. Supreme Court concluded
that Federal Rule of Civil Procedure 3 does not speak directly to the issue of
when a state action is commenced under the rule for purposes of tolling.'^'' It
held a case time-barred when the plaintiffhad filed his tort claim within the state
limitations period but did not achieve actual service on the defendant until after
the statutory period ran.'^^ These cases caution the litigator who practices both
in Indiana and federal courts to pay attention to the possibility that the Indiana

rule on tendering all essential documents, including the summons might not be
applied in a diversity action.

6. Nonparty Defendant Notice and Product Identificationfor Purposes of
Summary Judgment.—Another opinion with practical impact on everyday
litigation decisions is Owens Corning Fiberglass Corp. v. Cohb}^^ It explores
the proper standard for summary judgment when product identification is the
issue, and it details the considerations governing timely notice of the nonparty

defense.

In Owens Corning Fiberglass the plaintiff brought claims for products
liability, negligence, strict liability and breach of warranty against thirty-three

defendants in connection with his development of lung cancer from asbestos.
'^^

Owens Corning was one ofthe named defendants. It filed an answer presenting
a plethora of affirmative defenses, including the nonparty defense and also

reserved the right to object to the dismissal of any settling defendant and to

amend its answer to identify such settling defendant as a nonparty. '^^

A little more than a year later, plaintiffCobb and Owens Corning filed cross-
motions for summaryjudgment. The plaintiff sought partial summaryjudgment
on Owens Coming's affirmative defenses and Owens Coming, in tum, sought
summaryjudgment on the theory that plaintiffcould not carry his burden to show
that he had ever been exposed to Owen Coming's products. '^^ The trial court
denied the Owens Coming motion for summary judgment without comment.

A few days later, Owens Coming opposed plaintiffs motion by a two-part
strategy: it moved for leave to amend its answer to specifically identify other
asbestos-producing nonparties—some of which had settled with plaintiffs and
some of which had not—^and it filed a response to plaintiffs motion in which it
cross-referenced to the new answer and designated evidence as to each nonparty.

122. 28 U.S.C. §2072(1999).

123. 446 U.S. 740,752-753(1980).

124. /fl^. at 748-51.

125. Id.

126. 754 N.E.2d 905 (Ind. 2001).

127. Mat 907.
128. Following the Indiana Supreme Court's opinion last year in Mendenhall v. Skinner &

Broadbent Co., 728 N.E.2d 140 (Ind. 2000), a settling defendant must be identified as a nonparty

after dismissal so that credit for sums paid in settlement in the context of comparative negligence

is subject to the jury process.

1 29. Owens Corning Fiberglass, 754 N.E.2d at 908.



2002] CIVIL PROCEDURE 1175

Owens Corning argued that it thereby created a material issue as to whether it
could meet its burden of proof that the nonparties had contributed to plaintiffs

condition. Cobb countered that Owens Coming had not met its burden on
product identification for the nonparties. Moreover he claimed the answer

should not be allowed because timely notice of nonparties had not been given.

The trial court granted plaintiffs motion for partial summary judgment and
denied the motion to amend.

'^°

Although the defendant had the burden of proof on the nonparty defense,'^'

the Indiana Supreme Court characterized the cross-motions for summary
judgment as "mirror images'"^^ of each other. Both parties were attempting to

exploit the paucity of evidence on product identification—Owens Corning
alleged that plaintiff had not shown a triable issue as to whether its product

caused his injuries; Cobb alleged that Owens Coming had not shown a triable
issue as to whether any ofthe nonparties' products contributed to his condition.

But in both instances, the court concluded that each had mustered enough

evidence to avoid summary judgment'" and that it need not apply Jarboe v.
Landmark Community Newspapers ofIndiana, Inc. '^^ Nonetheless, the issue of
the timely identification of the nonparties was still central.

According to the court, the main purposes ofnotice are to allow the plaintiff

an opportunity tojoin the nonparty as an additional named defendant prior to the
running of the statute of limitations'" and, secondarily, to apprise the plaintiff

of defense strategy. Thus, Indiana Code section 34-4-33- 10(c)'^^ requires
designation of nonparties with "reasonable promptness." But, the reasonablity

ofnotice depends on when the defendant becomes aware that there is a nonparty

1 30. Id. The trial court did allow amendment to name one entity as a nonparty, Rutland Fire

Clay. As the Indiana Supreme Court noted, this was inconsistent with the ruling in plaintiffs favor

granting summary judgment on all affirmative defenses. See id. at 91 2 n. 1 1 . After trial, the jury

awarded almost $700,000 in compensatory damages against Owens Corning and $15 million in

punitive damages, which the trial court remitted in conformity with Indiana legislation capping

punitive damages. Id. at 908.

131. See Cornell Harbison Excavating, Inc. v. May, 546 N.E.2d 11 86, 1 1 87 (Ind. 1 989); Ind.

Code §51-2-15 (1999).
132. Owens Corning Fiberglass,15A^.E2(^d!i9U.

133. Cobb's testimony that he had seen defendant's product, Kaylo, in sites where he had

worked was sufficient to create a genuine issue regarding whether Owens Coming's product were

a cause of his lung cancer. Similarly, Cobb's testimony that he purchased and used various

asbestos-containing goods from nonparty defendant, Sid Harvey, should have precluded summary

judgment on Owens Coming's motion at least with regard to it. Id.

1 34. 644 N.E.2d 1 1 8, 1 23 (Ind. 1 994). By the opinion in Jarboe, Indiana rejects the approach

to summary judgment established for the federal courts in Celotex Corp. v. Catnett, 477 U.S. 317

(1986).

135. See Owens Corning Fiberglass, 754 N.E.2d at 913-14.

136. Ind. Code § 34-4-33-1 0(c) (1998) (repealed by P.L. 1-1988, Sec. 201) (current version

at Ind. Code § 34-51-2-16 (1999)).



1176 INDIANA LAW REVIEW [Vol. 35:1 157

to be identified. In the case of a defendant who is dismissed, '^^ this awareness
can come late in the proceedings. Moreover, when the plaintiff has knowledge
ofthe existence and identity ofa potential nonparty—^which is certainly the case
with a settling defendant—the plaintiff cannot logically be prejudiced by delay
in identifying the nonparty. Thus the court stated: "No violence is done ... by
permitting a defendant to assert a nonparty affirmative defense reasonably

promptly after receiving notice that a named party defendant has been dismissed
from the lawsuit."'^* Because Owens Coming did not move to amend its answer
as to certain nonsettling and nonjoined entities for more than one year after it
knew or should have known their identities, the timeliness ofnotice was not met
as to them. However with regard to one defendant that had settled with the
plaintiff, notice was reasonably prompt and the motion to amend was not too late.
Thus, the trial court committed reversible error when it granted plaintiffsummary
judgment on Owens Coming's nonparty defense relating to that entity.

7. Availability of Wrongful Death Remedies.—The topic of remedies blurs
the distinction between procedure and substance. In 2001 , the Indiana Supreme
Court decided a quartet of cases clarifying the remedies available under the

wrongful death and child wrongful death statutes, primarily in regard to punitive

damages. The most important ofthese is Durham v. U-Haul InternationalP'^ It
explicitly prohibits recovery of punitive damages for wrongful death and it
overrules Burk v. Anderson,^^^ which had excluded loss ofconsortium damages
from the scope of the statute.

In Durham, a driver was killed in a head-on collision with a U-Haul truck.
The driver's husband and ex-husband sued for wrongful death as co-
representatives on behalf of her estate. Her husband also filed an independent

common law claim for loss of consortium. All plaintiffs sought punitive
damages. On reconsideration, the trial court granted partial summary judgment
in favor ofall defendants on punitive damages, but denied summaryjudgment as
to the loss of consortium claim. The court of appeals affirmed in part and
reversed in part. Most importantly, it held that sound policy reasons support
recovery ofpunitive damages in a wrongful death action, and so reversed on that
ground. The Indiana Supreme Court granted transfer and, in an opinion written
by Justice Boehm, identified three issues raised by the case—whether punitive
damages are recoverable under the wrongful death statute; whether excluding
them from recovery would be unconstitutional; and whether loss of
consortium—^and punitive damages premised on it—survives as an independent
claim outside the purview of the statute.'*'

At common law, one who killed the victim of his or her tortious conduct

137. This is especially true where the dismissal is pursuant to settlement, and the nonparty

should be identified pursuant to Mendenhal v. Skinner & Broadbent Co., 728 N.E.2d 140 (Ind.
2000).

138. Owens Corning Fiberglass, 754 N.E.2d at 91 5.

139. 745 N.E.2d 755 (Ind. 2001).

140. 109 N.E.2d 407 (Ind. 1952).

141. Z)Mr/iflm, 745 N.E.2d at 758.



2002] CIVIL PROCEDURE 1 1 77

outright could escape paying any compensation, because the victim's personal

cause of action was extinguished by death. ''^^ Wrongful death statutes were

enacted to remove this injustice and provide deterrence. They have been strictly

construed to give only a narrow remedy to dependents of the deceased to

compensate them for the pecuniary losses caused by the death. "*^ The Indiana
General Assembly adopted the state's first wrongful death statute in 1 852 and has

repeatedly amended it.*^^ In all its permutations, the statute has never explicitly
mentioned the topic of punitive damages.'"*^ Relying on the doctrine of

"legislative acquiescence," the court concluded that punitive damages are not

available under the statute notwithstanding the statutory gap.

The plaintiffs argued that since the ban on punitive damages underthe statute
wasjudicially created, it could be judicially removed. Justice Boehm disagreed,
positing that the legislature's long failure to amend the statute in the face ofcase
law disallowing punitive damages expressed its agreement with the judicial

interpretation. He noted that the legislative response to Indiana cases construing
the child wrongful death statute shows how swiftly the legislature can act when
it disagrees with the courts' interpretation'^^ and he argued that the legislature's

lack of action suggests it agreed with the conclusion of courts that punitive

damages were not available.'*' In the majority's view, this, along with the
doctrine of stare decisis, restricted its discretion to allow punitive damages as a

element of recovery:

[I]f a line of decisions of this Court has given a statute the same
construction and the legislature has not sought to change the relevant

parts of the legislation, the usual reasons supporting adherence to

1 42. Id. ; see also DAN B. DOBBS, Law OF REMEDIES § 8.3( 1 ) (2d ed. 1 993).
143. 5eeZ)Mr/iam, 745 N.E.2d at 758.

144. /c/. at 758-59.

145. Id. at 758. Justice Boehm noted that, in contrast, the wrongful death statute governing

unmarried adults does expressly prohibit punitive damages. Id. at 758-59. He also noted that the

child wrongful death statute provides a specific, enumerated list ofrecoverable items and does not

mention punitive damages. Id. at 759. See also infra text accompanying notes 166-74, discussing

Forte V. Connerwood Healthcarey 745 N.E.2d 796 (Ind. 2001), in which the court construed the

child wrongful death statute to prohibit punitive damages.

1 46. Durham, 745 N.E.2d at 761 . One the cases relied on was Andis v. Hawkins, 489 N.E.2d

78 (Ind. Ct. App. 1986). It held that recovery for love and affection was not available under the

statute. The legislature immediately responded with an amendment making it clear that such items

are recoverable. Justice Boehm argued that though this was an appellate opinion, it should be

treated as if the appellate court were one of last resort due to the difficulty of civil cases making

their way to the Indiana Supreme Court as a result ofthe requirement that the court review so many

criminal cases. Durham, 745 N.E.2d at 760-61 & 761 n.2.
147. Id at 761. The court cited Huffv. White Motor Corp., 609 F.2d 286 (7th Cir. 1979);

Herriman v. Conrail, Inc. , 887 F. Supp. 1 1 48 (N.D. Ind. 1 995); Kuba v. Ristow Trucking Co. , 508

N.E.2d 1 (Ind. 1987); and Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045 (Ind. Ct. App.

1990) as the cases establishing judicial construction of the statute to preclude punitive damages.



1178 INDIANA LAW REVIEW [Vol. 35:1 157

precedent are reinforced by the strong probability that the courts have
correctly interpreted the will of the legislature.^'**

In addition, the court noted that since the wrongful death statute derogates the

common law it should be strictly construed. Finally, the majority disagreed with
the court of appeals' claim that Indiana law showed a general trend in favor of
punitive damages.

'^^

Turning to the constitutional question, the court construed the issue under the

Federal Constitution because the plaintiffs had not challenged the exclusion of

punitive damages under the state constitution. The plaintiffs alleged that not
allowing punitive damages violated the Equal Protection Clause. '^^ The court
scrutinized the statute using the "rational basis" analysis. Finding that the goal

of the wrongful death statute is to compensate statutory beneficiaries for the
pecuniary loss caused by the victim's death, the court did not punish the

defendants. The court reasoned that the statute passed muster because it
rationally advanced that goal.'^' In addition, the court found that the statute

reflects the "qualitative difference" between injuries to tort victims themselves

and harms to their survivors caused by their deaths.'"
This left the third question to be addressed: what was the status of the

husband's loss ofconsortium claim?'^^ In resolving this question, the court gave

the plaintiff half a loaf Justice Boehm began the analysis by noting that loss of
consortium is derivative ofa victim's personal injury claim. Moreover, allowing

such a claim to survive independent of the statute would promote easy

circumvention ofthe ban on punitive damages.'^"* Because these factors militated

in favor of including consortium claims within the purview ofthe legislation, the

court overruled Burkv. Anderson,^^^ which had indicated that the cause ofaction

for loss of consortium did survive outside the statute.

This conclusion did not mean that the period for which recovery was

148. Durham, 745 N.E.2d at 759 (citing Heffner v. White, 47 N.E.2d 964, 965 (1943)).

149. Id. at 762-63. Justices Rucker and Dickson dissented. They argued that the legislative

history cuts both ways—^the failure of the legislature to speak on the issue of punitive damages at
the same time that it responded specifically regarding the unmarried persons and child wrongful

death statutes could just as easily lead to the inference that availability of punitive damages under

the wrongful death statute itself was, at a minimum, an open question. Id at 767-68 (Rucker, J.

dissenting). Moreover, they asserted that the doctrine oflegislative acquiescence was not appl icable

because it required legislative inaction in the face of a clear line of cases by the state's highest

court—a factor not present here in their view. Id. at 768. Their dissent is especially significant
because Justice Boehm himselfnoted that the policy arguments in favor ofpunitive damages under

the wrongful death statute were persuasive had the court been writing on a clean slate.

150. /^. at 763-64.

151. Id

152. Mat 764.
153. Id

154. Mat 764-65.
155. 109 N.E.2d 407 (Ind. 1952).



2002] CIVIL PROCEDURE 1179

available was similarly limited to the contours of the common law. Although
most states treat consortium claims as covering only the period between the
victim's injury and the date of death, the court concluded that simply because

death extinguishes the common law claim for post-mortem consortium damages
does not mean they are excluded under the wrongful death statute. '^^ It held that
damages for consortium thereunder can cover losses to the date ofthe surviving
spouses' s death in a proper case.^^^ The court also noted that the traditional items
of damage for consortium are included in the wrongful death claim; however,
consistent with the main holding that the wrongful death statute does not support
punitive damages, they are not available for the consortium elements as well.

Bemenderfer v. Williams^^^ is a companion case with Durham and is also
authored by Justice Boehm. It further refined how loss of consortium should be
handled under the wrongful death statute and specifically addressed the problem

of the death of a beneficiary which occurs after filing but before verdict. In

Bemenderfer^ the decedent's death was allegedly caused by a doctor's

negligence. '^^ The victim's elderly husband suffered from Alzheimer's disease,
and she had cared for him at home. A lawsuit was filed naming the husband and
decedent's daughter as plaintiffs.'^ Soon after the wife's death, the husband had

to be put in a nursing home and he died relatively quickly. The inference that the
wife's absence hastened his death was strong.'^' His daughter was substituted as
the party plaintiff in his place, but the doctor moved for summary judgment
arguing that the husband's death precluded wrongful death recovery for the

pecuniary loss to him and further, that his consortium claim only covered the
three days between decedent's injury and her demise.'" The Indiana Supreme
Court rejected both arguments.

Citing to Durham, the court reiterated that consortium claims are subsumed
by the wrongful death statute. '^^ In contrast to Durham, the court denied that any
doctrine of legislative acquiescence applied to the issue of the effect of a

beneficiary's death prior to verdict.'^ Consequently, the court was free to
consider the policy questions directly. Recognizing that the death of the

beneficiary can give a defendant a windfall, the court held that a beneficiary may
recover damages from the decedent's death up to the beneficiary's death and that
these damages are an asset of the beneficiary's estate.'^^

In Forte v. Connerwood Healthcare Inc. '^ the issue was whether punitive

1 56. Durham, 745 N.E.2d at 765.

157. Id.

158. 745 N.E.2d 212 (Ind. 2001).

159. Mat 214.
160. Id

161. Id at214.15.

162. Id at 215.

163. Id at 216.

164. Id

165. Id at 218-19.

166. 745 N.E.2d 796 (Ind. 2001).



1180 INDIANA LAW REVIEW [Vol. 35:1157

damages could be recovered under the child wrongful death statute. There a
disabled child died within days of being admitted to a nursing home.'^^ The
child's mother filed an action for compensation under a complaint that was pled
very generally. She also asked for punitive damages. Defendants moved for
partial summary judgment, claiming that punitive damages are not recoverable
under the Child Wrongful Death Act.'^* The plaintiff responded that punitive
damages were allowable and that her complaint could be read to include an
independent loss of consortium claim supporting punitive damages. ^^^ On
interlocutory appeal, the court of appeals affirmed the trial court's conclusion

that the mother had no statutory right to punitive damages, but treated the
consortium argument as a claim for loss ofthe child's services that survived the

wrongful death statute.
'^°

In an opinion by Justice Rucker, the court first reviewed the child wrongful
death statute and noted that it contains a highly specific list ofdamages. This list

does not include punitive damages.'^' Because the statute is in derogation ofthe

common law and therefore should be strictly construed, the court concluded that
the statute did not include claims for punitive damages. '^^ However, in contrast

to the analysis in Durham, the court allowed loss of services as an independent
tort, but argued that the tort does not support punitive damages either. '^^ Justice
Rucker reached this conclusion on the premise that loss of services is derivative

of the personal injury claims of the victim. In the absence of legislation and

following the common law approach, the cause of action dies with the child. '^"^

Finally, in Elmer Buchta Trucking, Inc. v. Stanley^^^ the court had to
determine whether the 1965 amendments to the wrongful death statute dispensed
with the requirement that the decedent's expenses be deducted from the damages

to beneficiaries for pecuniary loss.'^^ These amendments established three

groups of beneficiaries and designated the personal representative of the estate

as the proper party plaintiff.*^' The estate receives compensation for discrete
pecuniary losses for funeral, medical, and hospital expenses and the beneficiaries

receive the remainder ofany recovery.'^* The statute does not expressly require
a deduction for monies the decedent would have spent personally or for his or her
own maintenance. Noting that the language dictating recovery for "lost earnings"
could support interpretations both requiring and excluding the deduction, the

167. Id. at 798.

168. Id.

169. Id

170. /i/. at 798-99.

171. Id at 800.

172. Id

173. Id at 802-03.

174. Id at 803.

175. 744 N.E.2d 939 (Ind. 2001)

176. /^. at 940-41.

177. /(i. at 941.

178. Id



2002] CIVIL PROCEDURE 1181

majority treated the statute as ambiguous. ^^^ Noting that cases construing the

statute had characterized it as a remedy for pecuniary loss and being concerned

with the over-compensation that would arise if a deduction was not made, the
court stated: "'Thatjuries should account for actual fmancial loss has been held

the object of the statute from the Nineteenth Century through to the last two
decades. We cannot find legislative desire to alter that formula in the relatively
general amendments adopted thirty-six years back."'*° The defendant should
have been able to introduce evidence as to the expenses the decedent would have

incurred during his lifetime.

B. Other Significant Indiana Supreme Court Decisions

1. Appeals.—^The court used the controversy in GKNCo. v. Magness,^^^ as
an opportunity to clarify the standard ofappellate review when scrutiny ofa Rule
1 2 motion to dismiss for lack ofsubject matterjurisdiction is the issue. There the

question concerned whether the plaintiff cement truck driver was a dual
employee for purposes ofthe worker's compensation statute.**^ The trial court
made its ruling on the basis of a paper record, and dismissed the case without
making fmdings as to disputed facts.'"

In a unanimous opinion authored by Justice Rucker, the court established as

a general principle that

a review ofthe case authority shows that the standard ofappellate review

for Trial Rule 12(B)(1) motion to dismiss is indeed a function of what

occurred in the trial court. That is, the standard of review is dependent

upon: (i) whether the trial court resolved disputed facts; and (ii) if the

trial court resolved disputed facts, whether it conducted an evidentiary

hearing or ruled on a "paper record.'"*^

Where no disputed evidence is at issue, the matter is a pure question of law and
therefore the standard of review is de novo.'*^ However, even if facts are

disputed, where the trial court rules on a paper record and conducts no
evidentiary hearing, the standard ofreview is also de novo because the appellate

court is in the same position as the trial court to judge the evidence.'^^ Justice
Rucker reiterated that the trial court's ruling will be sustained on any applicable
legal theory and that, in the case ofa paper record review, "we will reverse on the
basis of an incorrect factual finding only if the appellant persuades us that the

179. Id at 942.

180. Id. ai943.

181. 744 N.E.2d 397 (Ind. 2001),

182. /(/.at 400.

183. Id

184. IdsAAOl.

185. Id

186. Id



1182 INDIANA LAW REVIEW [Vol. 35:1 157

balance ofthe evidence is tipped against the trial court's findings.'"*^ The court
went on to conclude that, applying the factors for dual employee status developed
in Hale v. Kemp,^^^ the trial court had correctly dismissed the action, despite the
absence of findings.'"'

In addition to the question of appellate review, the court also addressed

burdens of pleading and proof. Despite the strong public policy of subsuming
employee injury claims under the Worker's Compensation Act, Justice Rucker
stated that coverage under the statute is an affirmative defense that must be raised
by the defendant and that the defendant has the burden of proofon the question
unless "the employee's complaint demonstrates the existence ofan employment
relationship .... Thus we disapprove of the language in those cases declaring
that once an employer raises the issue of the exclusivity of the Act, the burden

automatically shifts to the employee.'"^

Tom-Wat, Inc. v. Fink,^^^ is an important case that sheds light on the court's

standards for appellate review of personal jurisdiction challenges, the scope of

appeal from interlocutory orders, and late affidavits on summary judgment,
among other issues.

The case involved a trade debt between Tom-Wat, Inc. ("Tom-Wat"), a
Connecticut corporation, and George Fink ("Fink"), an Indiana sole proprietor.

'^^

When Fink failed to pay for goods ordered, Tom-Wat sued him in a Connecticut
state court and obtained a defaultjudgment. '^^ In 1 994, Tom-Wat filed an action
to enforce this judgment in an Indiana state court, and Fink both answered and

moved to dismiss the action for lack of personal jurisdiction over him in
Connecticut. ''"* Because he attached an affidavit to his motion to dismiss, the

Indiana Supreme Court treated it as a motion for summary judgment based on
invalidity ofthe Connecticutjudgment. However, the affidavit gave no specific

information as to the jurisdictional facts. '^^ In the trial court, Tom-Wat had
timely filed opposition and designated particular facts as creating genuine issues

for trial. A month later, Tom-Wat filed its own cross-motion for summary
judgment, which it supported by designations of facts and an affidavit.''^ In the

summer of 1995, Tom-Wat requested a hearing on its motion for summary
judgment and reiterated that request in 1997. A hearing was set, but Fink
requested a continuance, which was granted. The matter was finally heard in
March 1998.'^'

187. Id

188. 579N.E.2d63(Ind. 1991).

189. G/CA^, 744N.E.2dat402.

190. Id. at 404.

191. 741 N.E.2d 343 (Ind. 2001),

192. Id at 345.

193. Id

194. Id

195. Id

196. Id

197. Id



2002] CIVIL PROCEDURE 1 1 83

Two days before this hearing Fink filed a designation of material facts and
two affidavits alleging, among other things, that he had never been to
Connecticut and that he had contracted to buy the goods in a meeting in

Louisiana. On the basis of this information, Fink's only connection with
Connecticut was his purchase of goods from a Connecticut corporation while
outside the state. Tom-Wat then moved to strike this material for lateness. No
ruling on that motion was evident from the record and the transcript of the
hearing on all motions was lost.'^* The trial judge denied both Fink's motion to
dismiss and Tom-Wat's motion for summaryjudgment and then recused himself.
Tom-Wat filed an interlocutory appeal from the order denying the motions for
summary judgment, but alleged that the trial court had actually stricken Fink's
new material.'^

The court tackled this procedural morass by first noting that on interlocutory
appeal every issue entailed by the order appealed from must be reviewed.

Although the cross-motions for summaryjudgment were mutually inconsistent,
because the trial court denied both, the Indiana Supreme Court had to review the
matters raised by each.^°° Citing to Anthem Insurance Co. v. Tenet Healthcare
Corp.,^^^ which was decided just last year. Justice Boehm reiterated that
"personal jurisdiction is a question of law and, as such, it either exists or does

not."^°^ Where there is no question as to the jurisdictional facts, the appellate
court will make a "final determination" of the issue, taking into account the
normal standard on review ofsummaryjudgment, that is, one which is the same
as that which applies at the trial level. This standard construes all facts and

reasonable inferences therefrom in favor of the nonmoving party and requires
that the moving party show that no genuine issue of material fact exists to be
resolved.^°^

From the court's perspective, there was no dispute over the operative facts
regarding Fink's connection with Connecticut

—
"In sum, the facts established by

both parties present a familiar pattern: Buyer ... is never physically present in

Seller's . . . state, but places an order . . . with Seller to be shipped from Seller's

facility in Seller's state."^°^ To reach this characterization, the court had to
consider the facts in Fink's late-filed affidavits. This is consistent with the

court's opinion in Indiana University Medical Center v. Logan^^^ which

authorized trial court discretion to consider late-filed affidavits. It then treated

the procedural history of the case as if the trial court had denied the motion to

strike and found that this was not an abuse of discretion.^^^ The later-presented

198. Id.

199. Id. at 345-46.

200. Id at 346.

201. 730 N.E.2d 1227 (Ind. 2000).

202. Tom-Wat, 741 N.E.2d at 346.

203. Id

204. Id at 347.

205. 728 N.E.2d 855 (Ind. 2000).

206. Tom-Wat, 741 N.E.2d at 347.



1 1 84 INDIANA LAW REVIEW [Vol. 35: 1 1 57

material was supplemental to the earlier conclusory affidavit ofFink and did not
really present facts different from those relied on by Tom-Wat.^°^ This left the
merits of the personal jurisdiction question for determination.

The court resolved this by asserting that under both federal and Indiana law,
Fink had the burden of showing the invalidity ofthe Connecticutjudgment due
to lack of personal jurisdiction.^^* It pointed out that the Connecticut approach

to personal jurisdiction parallels the analysis adopted by Indiana in

Anthern^^^—that is, in both states a defendant's activities must fit within the long
arm statue ofthe jurisdiction and the long arm as applied must comport with due
process.^'^ For Justice Boehm, whether the Connecticut judgment should be
enforced rested ultimately on federal principles, which require that the
defendant's activities show minimum contacts with the forum and that
jurisdiction not be so unfair as to be unreasonable.^" While under federal cases,

one contact might be enough to satisfy the minimum contacts prong of the
analysis, it would be too unfair to require a one time, out-of-state purchaser with
no other connections to Connecticut to go there to defend himself Based on the
facts before it, the Indiana Supreme Court concluded that the Connecticut
judgment could not be enforced.^'^ However, because it conceded that Tom-Wat
might not have had an adequate opportunity to respond to Fink's late-filed

affidavits, the court remanded the action to the trial court.^'^ Again, the Indiana

Supreme Court has shown that it will give parties opposing summary judgment
every opportunity to show genuine issues for trial.

Finally, in Bemenderfer v. Williams^^^ previously discussed in connection

with the wrongful death,^'^ the court reviewed the proper procedure for appeal

from a nonfmal order. In Bemenderfer, the trial court denied the defendant-

doctor's motion for partial summary judgment.^'^ Thereafter, rather than
following the certification procedure for interlocutory appeals, a procedure which

requires the court ofappeals to acceptjurisdiction before the appeal can proceed,

the trial court signed an "Agreed Final Judgment and Agreement Preserving the

Issue of the Appropriate Measure of Damages"^'^ to create a final judgment

pursuant to Rule 54(8).^'* The court of appeals then reviewed the decision and
affirmed. On transfer, the Indiana Supreme Court pointed out that, as a private
agreement between the parties, the "Agreed Judgmenf was not an appealable

207. Id.

208. Mat 348.
209. Anthem Ins. Co. v. Tenet Healthcare Corp., 730 N.E.2d 1227 (Ind. 2000).

210. Tom-^af, 741 N.E.2d at 348.

211. M at 348-50.
212. Mat 350.
213. Id.

214. 745 N.E,2d 212 (Ind. 2001).

215. See supra notes 158-65.

216. Bemenderfer, 145 l^.E.2d2Lt2\9.

217. M. at215n.2.

218. Ind. Trial R. 54 (B).



2002] CIVIL PROCEDURE 1 1 85

final judgment.^ '^ Because both the trial court and the court of appeals treated

the matter as appealable and remanding for certification would only delay
resolution of the merits, the court exercised its discretion to grant review.^^°

However, it is clear that the Indiana Supreme Court disapproved of this method
of attempting to construct appellate jurisdiction.

2. Attorney Solicitation.—In Re MurgatroycF^^ is an interesting per curiarh
opinion that blends issues ofpersonal jurisdiction and subject matterjurisdiction

in the context ofattorney discipline. It involved solicitation ofpotential Indiana

clients by two out-of-state California lawyers. The lawyers sent targeted mail to
families and victims of a 1992 Indiana airliner crash offering representation

without following the Indiana professional conduct rules restricting such

solicitation.^^^ In prior litigation, the respondents had challenged Indiana's

personal jurisdiction over them directly and lost.^^^ In the case before the court,

the specific issue was the Indiana Supreme Court's regulatory power to impose
discipline over out-of-state lawyers pursuant to an agreed judgment. Chief

Justice Shepard wrote:

Notwithstanding the fact that the respondents hold no Indiana law

licenses and therefore are not subject to this Court's usual disciplinary

sanctions for licensed Indiana attorneys who engage in professional
misconduct, any acts which the respondents take in Indiana that

constitute the practice of law are subject to our exclusive jurisdiction to

regulate professional legal activity in this state. By directing the
solicitations to the prospective clients, the respondents communicated to

those persons that they were available to act in a representative capacity

for them in Indiana courts As such, they held themselves out to the
public as lawyers in this state when neither was admitted to practice
here. Those acts constituted professional legal activity in this state

subject to our regulatory authority
.^^^

The court concluded that while it may not directly subject the law license of
another state to discipline, it can impose penalties on persons for professional

misconduct that occurs /« Indiana.^^^

3. Corporate Privacy Rights and Injunctions.—Felsher v. University of
Evansville,^^^ is a significant torts and injunction case. Most important, it
establishes as a matter of first impression that a corporation does not have a

common law right of privacy where there is an alleged misappropriation of its
name and likeness. It also reiterates that injunctive relief must be narrowly

219. Bemenderfer, 745 N.E.2d at 2 1 5 n.2.

220. Id.

221. 741 N.E.2d 719 (Ind. 2001).

222. Id at 720.

223. Id

224. Id. at 720-21 (footnotes omitted).

225. Id 2X122.

226. 755 N.E.2d 589 (Ind. 2001).



1 1 86 INDIANA LAW REVIEW [Vol. 35:1157

tailored.

The defendant, a former University ofEvansville professor, created a website
and e-mail accounts that purported to be those ofthe university and certain of its
officials. He used these means to pursue a vendetta against the university and
others. One of his activities was to nominate university personnel for positions
with other institutions. The University of Evansville and several of the
individuals he targeted sought an injunction against him for violation of their
rights to privacy. Summary judgment was granted for all defendants and a
permanent injunction issued.

On transfer, the supreme court rejected the privacy theoiV insofar as the
university was concerned, holding that a corporation has no privacy right to
vindicate and should pursue business-related causes of action for
misappropriation. This had procedural implications, for although the court
concluded that other state claims unrelated to privacy would authorize injunctive
relief for the university, for example, state unfair competition, the injunction

could not be affirmed as to the university on those grounds because they had not

been presented in the pleadings. The court also stressed that in reviewing grants
ofsummaryjudgment it will carefully scrutinize prior proceedings to insure that
the nonmoving party has not been deprived of its day in court. Moreover, in
passing on the more substantive issues raised by the case, the court noted that the
defendant professor could not raise an issue for the first time on appeal by reply

brief. Finally, the court found that the injunctive order issued was overbroad
insofar as it prohibited the defendant from nominating individuals for positions

in his own name and narrowed it to exclude this prohibition.
4. Juries.—Rogers v. R.J. Reynolds Tobacco^^^ combined issues ofharmless

error and a trial judge's exparte communication with ajury. The case involved
claims brought by the widow ofa smoker and had been previously appealed after
the grant of summary judgment for defendants. In connection with the trial on
remand, one of the jurors asked the bailiff whether the jury could hold a press

conference after the verdict. The trial judge was informed and responded to the
jury via the bailiffsimply, "yes."^^* On appeal, the Indiana Supreme Court found
this to be harmless, although the process violated the requirement that when the
jury has questions or requests of the court, the parties are to be notified so they

may be present and have knowledge of the judge's response before it is
communicated to the jury.^^' The court suggested that one important factor for
determining whether ajudge's exparte communication to ajury is harmful is to

scrutinize the reaction of the jury, and particularly whether it returns a verdict

shortly thereafter.^^°

5. Law ofthe Case.—In City ofNew Haven v. Reichhart,^^^ the court was
faced with an issue of first impression: whether the First Amendment right to

227. 745 N.E.2d 793 (Ind. 2001).

228. Id. at 795.

229. Id

230. Id

231. 748 N.E.2d 374 (Ind. 2001).



2002] CIVIL PROCEDURE 1 1 87

petition the government prohibits an official entity from bringing a malicious

prosecution claim against a person who exercises a statutory right to challenge
governmental action.^^^ However, the court did not reach the constitutional

question, determining that the dispute could be resolved on other grounds.^" In

the case, the plaintiff-taxpayer was an employee of a business that would have
been adversely affected by an annexation ordinance adopted by the city ofNew
Haven. The employer funded a lawsuit brought to challenge the city's process

as a violation of the Open Door Act and to challenge the ordinance itself. A
temporary restraining order was granted to plaintiff on the Open Door grounds;

|

thereafter the city rescinded the ordinance.^^^ However, it filed a counterclaim
I

against plaintiff for abuse of process. The plaintiff sought summary judgment
thereon, which was denied. The court of appeals reversed, finding that the

;

plaintiffs suit was not improper and summary judgment should have been <

granted. While the interlocutory appeal was pending, the city amended its I

complaint on remand to present a claim for malicious prosecution.^^^ Later, the i

plaintiffargued that the court ofappeals' ruling on abuse of process was the law
I

of the case and presented other challenges to support a motion to dismiss the
I

malicious prosecution claim. The motion was granted and then affirmed by the <

court of appeals, which held that its previous ruling on abuse ofprocess was not
I

the law ofthe case as to malicious prosecution, but that the First Amendment did '

bar such a cause of action.^'^ «
The Indiana Supreme Court affirmed, but on other grounds. It agreed with '

the court ofappeals on the law ofthe case issue, pointing out that the elements

ofboth theories are distinct, so that the city was not precluded by the prior ruling
on the element of probable cause.^" Rather than reaching the constitutional

question, the court concluded that no probable cause to bring the action existed

on the facts of the case.^^*

6. Local Rules.—Buckalew v. Buckalew^^^ raised the issue ofwhether a trial
court's failure to follow a local rule is jurisdictional, rendering its actions

thereafter void. In a dissolution proceeding, the trial court allowed the filing of

a financial disclosure form, although both parties were not represented by
counsel as explicitly required by a Howard County local rule.^*° The wife filed
for relief from the judgment, which was denied. On appeal, she argued that the
trial court's action was void.^*' Writing for a unanimous court. Justice Dickson

232. Id. at 378.

233. Id. at 379.

234. Id at 376-77.

235. Id at 377.

236. Id

237. Id at 379.

238. Id

239. 754 N.E.2d 896 (Ind. 2001).

240. /^. at 897.

241. Id



1188 INDIANA LAW REVIEW [Vol. 35:1157

disagreed. NotwithstandingMereJ/Y/i v. State^^^ which suggested that some local
rules involving the substantive rights ofthe parties are mandatory and cannot be
waived, Justice Dickson declared that the wife's attempt to characterize the

question as one ofjurisdiction was incorrect.^*^ He pointed out that there are
only two requisites for trial court jurisdiction—competency over the subject
matter and personaljurisdiction over the defendant. When both are present, there
is no jurisdictional defect, although there may be reversible error in the manner
in which the court employs its jurisdiction. In general, the failure to follow a
local rule leads to error which might provide the basis for appeal, but does not
render a judgment void ab initio}^

7. New Trial Versus Judgment on Evidence.—In Neher v. Hobbs^^^ the
Indiana Supreme Court gave guidance as to the fmdings and procedures needed
for a new trial motion to be properly granted. The case involved a collision
between a van and an automobile. The van driver brought a claim for damages
for his injuries and his wife presented a claim for loss ofconsortium and services.

Although the jury found the automobile driver was at fault, it awarded the van
driver no damages for his injuries and found for the automobile driver on the
wife's claims. The plaintiffs filed a motion to correct error, which was granted
and the trial court ordered a new trial. The car driver appealed, arguing that the
trial court had not made the proper findings and followed the proper procedure
in advance of giving the remedy of a new trial, especially one premised on the
idea that the jury's verdict was against the weight of the evidence. The van
driver filed a cross-appeal. The court of appeals reversed.

On transfer and in an opinion by Justice Dickson, the Indiana Supreme Court
discussed the requirements ofa new trial motion and distinguished between the
findings necessary when the ground for granting such a motion is that it is against
the weight of the evidence versus the ground that it is clearly erroneous. In the

latter circumstance, the trial court does not have to set forth the evidence both

supporting and opposing the verdict in findings. Disagreeing with the defendant,

the court concluded that the basis for the new trial order was that the verdict was
clearly erroneous and it concluded that the findings sustained the new trial relief.
The defendant also argued that the court was required to show why it did not
grant judgment on the evidence rather than ordering a new trial. The supreme
court rejected this claim of error as well, noting that the explanation process

under Indiana Trial Rule 59 is designed to assist the appellate court on review;

in the case before it, the reasons for not using the judgment on the evidence

procedure were clear from the trial court's findings-the verdict was clearly
erroneous because no damages were awarded though the defendant was at fault.
In that circumstance, the trial court could not assess damages itself and enter

judgment. However, noting that when a motion for new trial is granted, the
scope ofretrial should be limited only to those issues affected by error, the court

242. 679N.E.2d 1 309 (Ind. 1997).

243. ^McJb/ew, 754 N.E.2d at 897-98.

244. Id. at 898.

245. 760N.E. 2d602(lnd. 2001).



2002] CIVIL PROCEDURE 1 1 89

limited the trial court's order so that only the issue of damages and the wife's

right to recovery were subject to retrial and remanded for proceedings consistent

with that limitation.

8. Proceedings to Vindicate Minority Shareholder Rights.—Galligan v.
Galligan^^^ presented procedural issues in the context of a lawsuit over alleged

breaches of fiduciary duty owed to minority shareholders by a majority
shareholder. The controversy arose from sales made ofcorporate assets to a third
party. The trial court granted defendants partial summary judgment and denied
plaintiffs partial summary judgment. The Indiana Supreme Court affirmed in
part and reversed in part. In so doing, it stated that the failure to comply with
statutory requirements ofthe corporations statutes does not automatically result

in a breach of fiduciary duty as a matter of law; instead undisputed facts that the

majority shareholder failed to act in the interests of the corporation were

required. This precluded summary judgment for plaintiffs on that issue. The
court also concluded that the minority shareholders' primary remedy came from
their statutory rights to dissent to the transaction, but that they could pursue

separate claims against the persons responsible for the violation of those rights

due to the absence of required notice.^*^ Similarly, in G cfe N Aircraft, Inc. v.
Boehm^^^ the court again canvassed the remedies available to minority

shareholders, holding among other things that the minority shareholder did not
need to bring a derivative action where breach of fiduciary duty was the claim
and that the primary remedy was the forced sale of the minority shareholder's
interest. The court also rejected a claim for attorneys' fees, except insofar as the
defendant had presented a frivolous counterclaim.

9. Public Lawsuits.—In litigation stemming from the controversy over the
revitalization ofGary, the court clarified the bond requirement in the context of

a "public lawsuit" as defined by Indiana Code section 34-13-5-2.^*^ Hughes v.
City of Gary^^^ involved two members of the Gary Common Council who
objected to the council's approval ofa plan to use casino revenues as security for

municipal bonds to finance the Genesis Center, a baseball stadium, waterfront

redevelopment, and other matters. They filed a lawsuit to invalidate the action.^^'
Under Indiana legislation governing "public lawsuits,"^" one who sues to

challenge public works projects must meet certain procedural hurdles not
imposed in normal litigation."^ The purpose ofthese is to protect governmental
entities from delay in and increased expense of public improvements caused by

246. 741 N.E.2d 1217 (Ind. 2001).

247. Mat 1228.
248. 743 N.E.2d 227 (Ind. 2001).

249. IND. CODE §34.13-5-2(b) (1998).

250. 741 N.E.2d 1168 (Ind. 2001).

251. Mat 1170.
252. Ind. CODE §34-13-5-2 (1998).
253. They are to show in a preliminary hearing that one's action raises '^substantial questions

to be tried/' and, if this showing cannot be made, to post a bond to avoid dismissal of the case.

//Mg/ie5,741N.E.2datn70.



1190 INDIANA LAW REVIEW [Vol. 35:1157

nonmeritorious litigation.^''* The trial court certified the action as a public
lawsuit and held an interlocutory hearing. At the hearing, the city presented
evidence of the increased costs the projects might incur as a result of the
lawsuit.^'' The statute also required the plaintiffs to make a showing that would
justify the issuance of a temporary injunction, despite the risk to the city from

delay. The trial court made various conclusions (which the Indiana Supreme
Court treated as fmdings) and determined that the plaintiffs had not met their
burden. It ordered that they post a $2.35 million bond to cover the minimum
expenses the city might incur from the effects of the suit on the contemplated
projects. Because plaintiffs did not then post the bond, the case was dismissed
and they appealed.^'^

Under an unusual procedure, the Indiana Supreme Court granted emergency
transfer from the court of appeals.^'^ In so doing, it held that the public lawsuit

statute requires that ''plaintiffs must introduce sufficient evidence that there is a
substantial issue to be tried in order to avoid the bond requirement."^^* It

underscored that the legislation balances the right ofcitizens to challenge public

improvements against unwarranted delay, frustration, and additional expense

caused by "harassing litigation.
"^'^

In a concurring opinion joined by Justice Sullivan, Justice Rucker pointed

out that Indiana "case authority does not make clear what is meant by a
'substantial question' in the context ofa public lawsuit."^^ However, the statute

incorporates the standards for a temporary injunction. In 1970, in the case of

Johnson v. Tipton Community School Corp.^^^ the court had established a
multipart test for the necessary showing: that the question to be tried is

substantial, that the status quo be maintained pending fmal determination (absent

clear imminent injury); that there is no remedy at law, and that a bond be
posted.^" Justice Rucker asserted that when a plaintiff in a public lawsuit does
not seek temporary injunctive relief, then only the first prong oiJohnson should

apply.^" He asserted further that when preliminary injunctive reliefw sought in
a public lawsuit, as it was in Hughes, all Xhe Johnson factors should be part ofthe

254. Indiana ex. rel. Habercom v. DcKalb Circuit Court, 241 N.E.2d 62, 65 (Ind. 1968).

255. //Mg/ie^, 741 N.E.2d at 1169-70.

256. /£/. atll70.

257. Id. See also iND. APPELLATE RULE 56(A), which authorizes such transfer when the

supreme court determines that "an appeal involves a substantial question of law of great public

importance and that an emergency exists requiring speedy determination."

258. Hughes, 741 N.E.2d at 1 171 . The court also reiterated that a trial court's findings are

challenged under the "clearly erroneous" standard, which also applies to the procedural processes

involved in filtering our nonmeritorious public lawsuits. Id. at 1 1 72.

259. Id (quoting Johnson v. Tipton Cmty. Sch. Corp., 255 N.E.2d 92, 94 (Ind. 1970)).

260. Id. at 1 175 (Rucker, J., concurring).

261. 255N.E.2d92,94(Ind. 1970).

262. Id

263. Hughes, 741 N.E.2d at 1 175 (Rucker, J., concurring).



2002] CIVIL PROCEDURE 1191

plaintiffs showing, including maintenance ofthe status quo.^^'* Notwithstanding

the justices' unanimous agreement on the result, at a minimum Hughes
demonstrates the complexities and ambiguities surrounding the procedure for

matters classified as "public lawsuits."

1 0. Relieffrom Judgment Under Rule 60(B)

.

—In Clear Creek Conservancy
District v, Kirkbride^^^ the court had to determine whether landowners who filed
untimely requests for exceptions to an appraiser's report governing their

conservancy district assessment could obtain reliefunder Trial Rule 60(B)( 1 )}^^

Justice Sullivan concluded that ifthe principles ofLehnen v. State^^^ (governing

eminent domain) extend to conservancy district matters, Rule 60 reliefwould not

be available.^^* While the court of appeals had distinguished Lehnen on the

ground that the conservancy district legislation was not comprehensive, Justice
Sullivan agreed with Judge Friedlander in the dissent below, that the rule of

Lehnen requires that a statute's fixed procedure be followed: "[T]he

Conservancy Act provides a definite procedure for interested landowners to

follow when contesting an appraiser's report Allowing landowners to file
untimely exceptions in the trial court is simply not authorized by the conservancy

district statutory scheme."^^^ For the court, requiring landowners to follow the

statute insures that a district's financial arrangements can proceed with final ity.^^^

Allowing the use ofRule 60 to get around the requirement would "undermine the

statutory scheme for fixing in place the financing arrangements of conservancy

districts, and by extension, other governmental units operating under similar

statutory arrangements."^^'

Allstate Insurance Co. v. WatsorP^ provides some welcome direction from
the supreme court as to the standards for setting aside a default judgment under

Indiana Trial Rule 60(B) in the context of settlement negotiations. In that case,

the plaintiffs sought recovery from Allstate for uninsured motorists coverage and

protracted settlement discussions ensued over several years. Originally,

plaintiffs' lawyer represented that a defaultjudgmentwould not be pursued while

negotiations were pending. Later the lawyer made a settlement demand and
represented that it would be held open for a time certain. Before the running of

that time, the plaintiffs' lawyer took Allstate's default. The trial court denied
Allstate's motion to set the default aside and the appellate court affirmed. In an

opinion by Justice Dickson, the Indiana Supreme Court reversed and stressed

again the disfavor in which default judgments are held. Although the court

recognized that trial court rulings on Rule 60(C) motions are given deference.

264. /^. at 1175-76.

265. 743 N.E.2d 1 i 16 (Ind. 2001).

266. /^. at 1118.

267. 693 N.E.2d 580 (Ind. Ct. App.), trans, denied, 706 N.E.2d 169 (Ind. 1998).

268. Kirkbride, 743 N.E.2d at 1 1 18.

269. /flf. atll20.

270. Id

271. Id

272. 747 N.E.2d 545 (Ind. 2001).



1 192 INDIANA LAW REVIEW [Vol. 35: 11 57

that deference must be seen in the context of a public policy in favor of trial on
the merits and the unique facts ofeach case, which bear on thejustness ofsetting
the judgment aside. Moreover, the court noted that an attorney's conduct might
be technically correct under the trial rules and still violate the rules of

professional responsibility. This bore on the case before the court, as the
plaintiffs attorney did not honor his own representation. The opinion strongly
suggests that where the granting ofa defaultjudgment rewards what is arguably
attorney misconduct, all things being equal, the default should be set aside.

11. Statute ofLimitations.—Revisiting issues similar to those involved in
Van Dusen v. Stotts^^^ the Indiana Supreme Court construed the application of
the "discovery" rule for the running ofthe statute oflimitations in Degussa Corp.
V. Mullens}^^ Degussa Corp. was an action based on negligence and products
liability involving a worker who alleged lung injury from chemicals used in the
making ofanimal feed. Defendants moved for summaryjudgment on the theory
that plaintiffs claims were time-barred."^ The trial court denied the motion. On
transfer. Justice Sullivan noted that the court has adopted a "discovery" rule to

clarify the negligence and products liability limitation statute"^ where injuries

are caused by exposure to foreign substances.^^^ Even on defendant's theory, the

action was commenced only eight days after the running ofthe period. Although
plaintiff visited her doctor complaining of respiratory problems more than two
years before she filed suit, she was only told then that there was a reasonable
possibility^ not a probability^ that her condition was caused by exposure to
defendants' products. Plaintiff diligently pursued further testing to "transform

speculation into a causal link."^^' Because that link had not been made in the
eight days at issue in the case, the cause of action had not yet accrued and the

trial court properly denied the motion to dismiss."^ The court's opinion suggests
that although certainty is not necessary to trigger the running of the statute of

limitations, the mere possibility that an injury is caused by a defendant's product

is not sufficient either.^*® Whether mere possibility has ripened into something

273. 712 N.E.2d 491 (Ind. 1999) (construing the issue ofwhen a patient should be on inquiry

notice regarding medical malpractice such that a cause of action accrues).

274. 744 N.E.2d 407 (Ind. 2001).

275. One defendant also moved to dismiss for lack of subject matter jurisdiction claiming

exclusive worker's compensation jurisdiction. This motion was also denied by the trial court.

Because the court was evenly divided on this question, the trial court's judgment was affirmed

pursuant to Indiana Appellate Rule 59(B). In scrutinizing the questions raised regarding worker's

compensation, Justice Dickson, writing for the dissenting members of the court, followed the

analysis ofGNK Co. v. Magness, 744 N.E.2d 397 (Ind. 2001), and reiterated that where the trial
court rules on a paper record, the standard ofreview is de novo. Degussa Corp. , 744 N.E.2d at 4 1

5

(Dickson, J., dissenting).

276. Ind. CODE §33-1-1.5-5 (1998).

277. Dej^Mwa Corp., 744 N.E.2d at 410.

278. /«/. at4Il.

279. Id

280. /J. at41M2.



2002] CIVIL PROCEDURE 1 1 93

more is a question of fact that will be determined on a case-by-case basis. In
analyzing the case. Justice Sullivan explicitly stated that decisions under the

Medical Malpractice Act are persuasive as to questions ofwhen a plaintiffshould
have discovered a possible negligence or products liability cause of action.^^'

12. Summary Judgment.—Mangold v. Indiana Department of Natural
Resources^^^ is an important torts decision involving governmental immunity and

duty that also has significance for summary judgment. There a twelve-year-old
boy returned home after watching a school-sponsored Department of Natural
Resources (DNR) demonstration offirearm safety. He took apart a shotgun shell,
struck it with a hammer and chisel and was injured when it exploded. An action
was filed on his behalf against the school and the DNR. The school presented
the affirmative defense that it owed no duty for injuries sustained off of school
grounds and the DNR defended on grounds of governmental immunity.
Contributory negligence was also interposed as a defense by each defendant.
Both the school and the DNR moved for summaryjudgment, which was granted
by the trial court and affirmed on appeal. The Indiana Supreme Court allowed
transfer and held that a school's duty is not dependent on the plaintiffs injuries

occurring on school property. It also reaffirmed that governmental immunity

under section nine ofthe Indiana Tort Claims act should be narrowly construed,

following Hinshaw v. Board ofCommissioners ofJay County^^^ so as to apply
only where vicarious liability is premised on the acts of third parties other than

government employees. Nonetheless, three of the members of the court. Chief
Justice Shepard and Justices Sullivan and Boehm, found that summaryjudgment
still should be affirmed due to the contributory negligence of the boy.

Several significant principles for summary judgment arise from the case.
First, citing to the standards for summaryjudgment established in early 200 1 by
Tom-Wat, Inc. v. Fink^^^ the court reiterated that summary judgment is only
proper where there is no genuine issue of material fact in dispute, after all facts

and reasonable inferences therefi*om are construed in favor of the nonmoving
party, and the movant is entitled to judgment as a matter of law. Second,
although Justice Rucker noted that the existence of duty is normally a question

of law for the court, not one offact for thejury, he reiterated that breach ofduty,

"which requires a reasonable relationship between the duty imposed and the act

alleged to have constituted breach is usually a matter left to the trier of fact."^^^

Finally, in Chief Justice Shepard's concurring opinion for the majority, he

strongly suggested that because "even the slightest contributory negligence by the

plaintiff bars recovery," it is much more likely for contributory negligence to
succeed on summary judgment as an affirmative defense than the defense of
comparative negligence.

281. Mat 410-11.
282. 756N.E.2d 970 (Ind. 2001).

283. 61 1 N.E.2d 637 (Ind. 1993).

284. 74 1 N.E.2d 343 (Ind. 200
1
). See also supra text accompanying notes 191-213.

285. Mangold, 756 N.E. 2d at 975 (citing Delta Tau Delta, Beta Alpha Chapter v. Johnson,

712 N.E.2d 968, 974 (Ind. 1999)).



1 194 INDIANA LAW REVIEW [Vol. 35:1157

II. Selected Decisions from the Indiana Court of Appeals

As expected, the decisions from the court of appeals affecting Indiana civil
procedure were extremely varied. Along with the usual crop of opinions
grappling with Rule 12 and summaryjudgment motions, there were a surprising
number ofcases dealing with amendment ofpleadings and attorneys' fees. One
ofthe most significant cluster ofdecisions involved the application of Indiana's

Product Liability Act to asbestos-related injuries. What follows is a description
of selected court of appeals opinions, organized by topic.

A. Amendment ofPleadings

SLRPlumbing & Sewer, Inc. v. Turk^^^ involved an action by a subcontractor
on a mechanic's lien. The court ofappeals held that the denial of plaintiff s oral
motion to amend to add a claim for homeowners' personal responsibility was
harmless.^'^ This is because in ruling on the homeowner's motion for summary
judgment, the trial court already scrutinized the key issue in the amended
opinion—whether the subcontractor's letter gave notice of personal
responsibility as required by Indiana Code section 32-8-3-9.^''* The court also
noted that the amendment of pleadings is within the broad discretion ofthe trial
court and enjoys a deferential standard of review.^*^

In Osterloo v. Wallar,^^ sl car collided with a child on a sled. The case raised
the same nonparty "Catch-22" that was resolved by the Indiana Supreme Court
in Owens Coming Fiberglass Corp. v. Cobb?^^ The question was whether the
defendant-motorist could amend his pleading to add as a nonparty the child's
father, who had previously been a defendant but was dismissed from the
action.^^^ The problem was whether the amended pleading met the timeliness
rules under the Comparative Fault Act.^^^ Relying directly on Cobb, the court of

appeals determined that the purpose ofthe nonparty requirement—^to apprise the
plaintiff of potential defendants—^was met where the plaintiffwas surely aware
of the potential nonparty's existence; thus the amendment was "reasonably
prompt" under the statute and should have been allowed.^^"*

Davis V. Ford Motor Co.^^^ showed the overlap of Indiana Trial Rules
12(B)(6) (dismissal for failure to state a claim) and 12(C) (motion forjudgment

on the pleadings). Rule 12(C) does not provide for amendment as an alternative
to dismissal, but 12(B)(6) does. The issue was whether in a circumstance where

286. 757 N.E.2d 193 (Ind. Ct. App. 2001).

287. Mat 197-98.
288. Id.

289. Id

290. 758 N.E.2d 59 (Ind. Ct. App. 2001).

291. 754 N.E.2d 905 (Ind. 2001).

292. 0^rer/oo,758N.E.2dat61.

293. /(^. at 63-64.

294. Mat 64-65.
295. 747 N.E.2d 1 146 (Ind. Ct. App. 2001).



2002] CIVIL PROCEDURE 1195

a defendant strategically files a motion forjudgment on the pleadings that could

be characterized as a 1 2(B)(6) motion, the trial court should treat it as a 1 2(B)(6)

request, thus affording plaintiff the opportunity to amend.^'^ Answering this

question turned on the nature of the defect in the pleading. Quoting Federal

Practice and Procedure,^^^ the court of appeals suggested that a Rule 12(B)
motion goes to a plaintiff's failure to satisfy a "procedural" condition for his

claim, such as insufficient particularity in the pleading.^'* In contrast, a motion

forjudgment on the pleadings, which presumes an end to the pleadings, goes to

the substantive merits.^^ Where the defect is procedural, a trial court commits
reversible error when it puts form over substance and treats the matter under
12(C), thereby preventing amendment.^°° One problem with this approach is the
difficulty ofdistinguishing between procedural and substantive defects. Another

is that following Rule 12(C) could end the pleading stage prematurely by

precluding amendments that might correct defects that are not easily classified
in terms of these categories.

In Russell v. Bowman, Heintz, Boscia & Vician, Inc.^^^ an action brought
under the federal Fair Debt Collection Practices Act,'°^ the debtor amended his
complaint to add his wife as a party-plaintiff and to add the assignee ofthe debt.

Bowman, as a new defendant.^®^ Bowman filed a motion to dismiss the amended
complaint, arguing that the husband's settlement with the assignor was fatal and
that the amendment came too late. The trial court granted dismissal for lack of
subject matterjurisdiction due to the settlement.^^ The court ofappeals reversed

because no responsive pleading had been filed by the original settling defendant.

Under the express terms of Indiana Trial Rule 15(A), the plaintiff has a right to
amend without leave ofcourt. Plaintiffcould also add new claims and parties so
long as thejoinder rules were met.^°^ Finally, there was no subject matter defect
because the action was still pending against the original defendant when the
amendment was made.^°^ In contrast, the court concluded in Kuehl v. Hoyle ^°^

that the amendment of right rule in 1 5(A) does not trump the relation-back
requirements of Rule 15(C) simply because no responsive pleading is filed.^^*

296. Mating.
297. 5A CharlesAlan Wright&Arthur r. Miller, Federal Practiceand Procedure

§ 1369 (2d ed. 1990).

298. Davw,747N.E.2datn50.

299. Id.

300. /^. at 1149.

301. 744 N.E.2d 467 (Ind. Ct. App.), trans, denied, 761 N.E.2d 420 (Ind. 2001).

302. Fair Debt Collection Practices Act, Pub. L. 95-109, 91 Stat. 874 (codified as amended

in scattered sections of 1 5 U.S.C, ch. 41).

303. /?MMe//,744N.E.2dat469.

304. Mat 469-70.
305. Mat 471.
306. Id

307. 746 N.E.2d 104 (Ind. Ct. App. 2001).

308. Mat 108.



1 196 INDIANA LAW REVIEW [Vol. 35: 1 1 57

Thus, the statute of limitations may still bar amendment.^°^

B. Arbitration

Mislenkov v. Accurate Metal Detinning, Inc}^^ involved a claim of
misappropriation of trade secrets by a former employee, Mislenkov, and that
employee's second employer, Shoreland. Both defendants moved to dismiss,
claiming an arbitration agreement between Mislenkov and Accurate Metal

Detinning ("Accurate Metal") deprived the court ofsubject matterjurisdiction.^ '
^

The court ofappeals applied a two-tiered test for arbitration: whether there is an
enforceable agreement to arbitrate between the parties and whether the dispute

falls within the scope ofthat agreement.^ ^^ Because Shoreland was not in privity
on agreement, the company could not enforce it, so the first prong ofthe test was
not met as to Shoreland.^" Although there was an enforceable arbitration
agreement between Mislenkov and Accurate Metal, it did not cover the whole

employment relationship, but only matters occurring after a release had created

a new contractual relationship. As to Mislenkov, the second tier ofthe analysis
was not satisfied because the dispute related to pre-agreement actions.^'*

C Asbestos
Asbestos cases present difficult problems for issues relating to limitation of

actions and product identification/causation. The diseases caused by asbestos
take a very long time to develop. In the typical circumstance where a worker

might be exposed, numerous companies could have produced the article creating

the exposure. After many years, workers' memories fade and documentary
evidence linking the asbestos of a particular defendant to a specific work
environment is difficult to discover. Where asbestos is a component part of a
product, a worker might never have been aware ofthe identity ofthe supplier of

the asbestos in the first place. From a procedural perspective, these issues
typically arise on summaryjudgment. Complicating matters, the ten-year repose
period of the Indiana Products Liability Act^'^ ("PLA") runs from the date a

product is delivered to the initial user or consumer, regardless ofwhen the claim

309. /</. at 108-09.

310. 743 N.E.2d 286 (Ind.CtApp. 2001).

311. Mat 288.
312. Mat 289.
313. Mat 290.
314. Id.

315. IND. Code § 34-20-3-1 (1998) provides in part that:

[A] product liability action must be commenced:

(1) within two (2) years after the cause of action accrues; or

(2) within ten (10) years after the delivery ofthe product to the initial user or consumer.

However, if the cause of action accrues at least eight (8) years but less than ten (10)

years after that initial delivery, the action may be commenced at any time within two (2)
years after the cause of action accrues.



2002] CIVIL PROCEDURE 1197

accrues as to a particular plaintiff. However, it does not apply to certain actions

for asbestos exposure. Instead, where the requirements of Indiana Code section
34-20-3-2 ("the asbestos exception") are met, a claim may be brought within two
years from the date it accrues, regardless of when the product was put on the
market.^ '^ The asbestos exception raises problems of statutory interpretation,
and, depending on how they are resolved, exposes the PLA to constitutional
infirmity under Martin v. Richey^^^ and related cases.

Black V. ACandS, Inc?^^ may prove to be one of the most important
decisions from the court of appeals in 2001 because it construes the asbestos

exception broadly. It has already had an impact on the many asbestos-related
actions brought in Indiana courts. Black arose from a suit brought by the widow
and the estate of a blast furnace worker who worked in the Gary USX steel
works. He died from asbestos-induced lung cancer.^^^ The action came up for
review after the Indiana Supreme Court granted transfer in Owens Corning
Fiberglass Corp. v. Cobb,^^^ but before it issued its opinion. In Cobb, the

supreme court affirmed the trial court's determination that the plaintiffs had

shown sufficient evidence linking defendant's product to decedent to avoid
summary judgment. It disagreed with the court of appeals that the evidence
presented no issue of material fact for trial.^^*

The Blacktrial court had granted summaryjudgment fortwo different groups
of defendant-companies on two different grounds. For the first group, it
concluded that the PLA ten-year repose period applied, not the two-year asbestos
exception, because the defendants in this group were not both miners a«(i sellers

ofasbestos.^^^ Regarding the second group, the court found insufficient evidence

on product identification.^^^

As to the first ground, the court of appeals construed the language "persons
who mined and sold" in the statutory exception to determine whether it was
meant in the conjunctive—so that both mining aA7^ selling were required of the
same defendant—or the disjunctive—so that either mining or selling would
suffice.^^'* Despite a line of previous cases that suggested both attributes were

3 1 6. Id. § 34-20-3-2. The statute provides, in pertinent part, that the exception is available as

follows:

(d) This . . . [exception] applies only to product liability actions against:

(1

)

persons who mined and sold commercial asbestos; and

(2) funds that have, as a result of bankruptcy proceedings or to avoid bankruptcy

proceedings, been created for the payment ofasbestos related disease claims or asbestos

related property damage claims.

317. 7 1 1 N.E.2d 1 273 (Ind. 1 999).

318. 752N.E.2d 148 (Ind. Ct. App. 2001).

319. Mat 150.
320. 754 N.E.2d 905 (Ind. 2001).

32 1

.

See supra notes 1 26-38 and accompanying text.

322. Black, 752 N.E.2d at 156.

323. /^. at 157.

324. /^. at 151-52.



1 198 INDIANA LAW REVIEW [Vol. 35: 1 1 57

required,^^^ the court ofappeals determined that "the construction [ofthe statute]

urged by defendants is inconsistent with other provisions ofthe products liability

act and with our supreme court's precedent and would lead to an absurd
result."^^^ The "absurd result" would be that a company that mined but did not
sell asbestos, and a company that sold but did not mine asbestos, would both be
able to take advantage of the ten-year limit, despite causing the same harm to
plaintiffs as companies that both mined andsold it. Moreover, this interpretation
would not promote the purpose ofgiving plaintiffs in asbestos cases an adequate
time from discovery oftheir condition to sue. This policy was suggested by the
Indiana Supreme Court in Covalt v. Carey Canada, Inc.^^^ a case that was
decided prior to the asbestos exception statute. There the supreme court argued

that the ten year limit ought not to apply "to cases involving protracted exposure

to an inherently dangerous foreign substance which is visited into the body."^^*

The court of appeals agreed with the distinction in Covalt between a regular
product in the marketplace and asbestos, "a hazardous foreign substance which

causes disease,""^ especially because the diseases it causes take a long time to

develop. It reversed the trial court's grant of summary judgment based on the
PLA."^

In resolving the issue of product identification, the court of appeals was
persuaded by the Seventh Circuit's opinion in Peerman v. Georgia-Pacific
Corp?^ ' Peerman suggests that a plaintiffmust come forward with facts showing
the victim's inhalation of a particular defendant's asbestos to avoid summary
judgment on product identification.^^^ The court ofappeals interpreted Peerman
to mean that "concrete facts" would be required to show product identification,
not speculative inferences.^^^ Although there was some evidence that the
defendants' products might have been in the firebricks or used as insulation

where decedent worked, the court of appeals discounted it as speculative and
inferential.""* It concluded that the trial court had not erred in granting the

defendants summary judgment therefore. However, given the Indiana Supreme

325. See Novicki v. Rapid-American Corp., 707 N.E.2d 322, 324 (Ind. Ct. App. 1 999); Sears

Roebuck & Co. v. Noppert, 705 N.E.2d 1065, 1068 (Ind. Ct. App. 1999); see also Spriggs v.
Armstrong World Indus., No. IP91-651, 1999 U.S. Dist. LEXIS 19874 (S.D. Ind. 1999).

326. B/acife,752N.E.2datl52.

327. 543 N.E.2d 382 (Ind. 1989).

328. Mat 385.
329. Mat 386.
330. BlacK 752 N.E.2d at 151, 154.

331. 35 F.3d 284, 287 (7th Cir. 1994) (applying Indiana law).

332. Id. at 286. Moreover, according to Peerman, no Indiana court had articulated a test for

causation in asbestos cases.

333. M. at 286-87. The reference to "concrete facts" comes from the court ofappeals decision

in Owens Coming Fiberglass Corp. v. Cobb, 7 1 4 N.E.2d 295, 303 (Ind. Ct. App. 1 999), which was

vacated when the Indiana Supreme Court granted transfer. See Owens Coming Fiberglass Corp.

V. Cobb, 754 N.E.2d 905 (Ind. 2001).

334. 5/flc^, 752 N.E.2d at 155-57.



2002] CIVIL PROCEDURE 1199

Court's opinion in Cobb, this conclusion is in doubt.^^^

Jurich V. Garlock, Inc?^^ also raised the question ofhow to construe the PLA
in the case ofa worker whose claim was filed more than ten years after he could

have been exposed to defendants' products but within the asbestos exception.

This panel ofthe court of appeals found the analysis ofthe exception statute in

^/acA: "reasonable" and followed it."^ However, it confronted anew interpretive
problem—^whether plaintiffs would have to show that defendants were miners or
sellers of commercial asbestos, defined as asbestos in the raw processed form.

If so, the exception would not apply to persons who sold products that contained
asbestos as a component.^^* In that circumstance, the PLA could be
unconstitutional as applied for violating the Indiana Constitution open courts

provision."^

The court of appeals reasoned that the word "commercial" was intended to
have effect in the statute and not be mere surplusage. Moreover, it was
persuaded by a regulation of the Environmental Protection Agency that
"commercial asbestos" must be defined in terms of its raw state.-^''^ Thus, the
exception did not apply to defendants who only sold products incorporating
asbestos. Therefore, the court had to reach the question of whether the PLA
violates the Indiana Constitution open courts provisions in light of the Indiana

Supreme Court's holdings in Martin v. Richey^^^ and its progeny.^"^^ The court
concluded that it might in two circumstances: where a person is injured by an

asbestos product within the PLA ten-year period but does not gain knowledge of
the injury until afterward; and where a person is injured prior to the passage of

the PLA and the date of the product's delivery is unknown.^*^ This latter
situation was presented by the facts of the case and the court held the PLA
unconstitutional as applied to plaintiffs.

AlliedSignal, Inc. v, Herring^^ combined the issues raised by both Black and

Jurich. There the defendants argued the plaintiffwould have to show they were
both miners and sellers of asbestos to prevail.^"*^ A different panel of the court
of appeals found the analysis in Black on that question compelling and adopted

it.^"*^ As in Jurich, the defendants also argued that plaintiffs would have to show
they dealt in commercial Sisbestos?^^ However, the court did not reach this issue,

335. See supra notes 126-38 and accompanying text.

336. 759 N.E.2d 1066 (Ind. Ct. App. 2001).

337. Id at 1069-70.

338. Mat 1070-71.
339. Id. at 1071; Ind. Const. art.l2, § 1.

340. Jurich, 759 N.E.2d at 1070.

341. 71 1 N.E.2d 1273 (Ind. 1999).

342. See, e.g., Mcintosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000).

343. Jurich, 759 N.E.2d at 1071

.

344. 757 N.E.2d 1030 (Ind. Ct. App. 2001).

345. Id at 1032-33.

346. Id at 1035-36.

347. Id at 1036-37.



1200 INDIANA LAW REVIEW [Vol. 35:1 157

for it found that defendants had not raised it below and so waived it on appeal.^"**

This waiver also obviated the need to discuss constitutional questions raised by
thePLA.

Fulk V. Allied Signal, Inc.^^^ is yet another asbestos case involving Allied

Signal as a defendant. Judge Mattingly-May, who wrote the opinion in Black,
used its analysis on the asbestos exception again in Fulk?^^ The opinion also
followed the same reasoning on product identification and affirmed the trial
court's grant ofsummaryjudgment for a number ofdefendants where there was
some evidence ofdecedent's exposure to their products, but it was not strong.^^*
Once again, after Cobb the product identification aspect of this case is in
doubt.^"

Parks V. A.P. Green Industries^^^ again presented issues of product

identification and the statute ofrepose. In Parks a boilermaker with lung cancer

and his wife sued a variety of asbestos producers for products liability and loss

ofconsortium.^^'^ The defendants moved for summary judgment on the grounds
that the plaintiffs had failed to bring their actions in time and that they had failed

to muster sufficient evidence to link the boilermaker's lung cancer with inhaling

their asbestos.^^^ Among its rulings, the trial court denied summaryjudgment to
defendant Chicago Firebricks on the issue of product identification, but granted

all defendants summaryjudgment for the plaintiffs' failure to bring their claims
within the ten-year repose period of the PLA.^^^ The court of appeals affirmed
denial ofsummary judgment as to Chicago Firebricks on product identification,
but reversed as to a number of defendants on the timeliness issue following the
analysis in 5/ac^.^^'

The cases from Black to Parks show an emerging consensus on whether a
defendant must be both a miner and a seller of asbestos for the asbestos
exception to the PLA to apply. However, the issue of whether "commercial
asbestos" is limited to raw processed asbestos is an open question, as is the

manner in which the court of appeals will interpret the showing necessary to
avoid summary judgment on product identification after Cobb.

D. Attorneys ' Fees

Former Appellate Rule 15(G) allowed appellate courts to assess damages
when a judgment was affirmed on appeal. This award was informally referred

348. Mat 1037.
349. 755 N.E.2d 1 198 (Ind. Ct. App. 2001).

350. /c/. at 1202-03.

351. Mat 1203-06.
352. See supra notes 126-38 and accompanying text.

353. 754 N.E.2d 1052 (Ind. Ct. App. 2001).

354. Mat 1054-55.
355. Id at 1055.

356. Id

357. Mat 1059.



2002] CIVIL PROCEDURE 1201

to as "appellate attorneys' fees.""* In Kuehl v. Hoyle^^^ the court of appeals

strictly construed the application of the rule to avoid a chilling effect on the

taking of appeals. Even though the plaintiff in Kuehl waited more than eight
years to amend her complaint, there had been two previous appeals in the action,
and it was possible she was litigating matters that had been settled, the appellate
court declined to award attorney fees.'^ Sanctions for frivolous or bad faith

appeals are now governed by Indiana Appellate Rule 66(E), which provides:
"The Court may assess damages ifan appeal, petition, or motion, or response, is
frivolous or in bad faith. Damages shall be in the Court's discretion and may
include attorneys' fees. The Court shall remand the case for execution."^^'

In SLR Plumbing & Sewer, Inc. v. Turk^^^ described above, the court of
appeals reviewed the process for determining whether a prevailing party should

be awarded fees under Indiana Code section 34-52-1-1 covering "groundless"
claims. Citing Emergency Physicians of Indianapolis v. Pettit^^^ the court
described three steps for reviewing a fee award, two of which go to merit
questions: a review of the trial court's fmdings of fact under the clearly

erroneous standard, a review de novo of the trial court's legal conclusions, and

a review of the trial court's decision to award attorney fees under an abuse of

discretion standard.^^ Concluding that there were facts to support the

subcontractor's claim, but that the legal significance he gave them was incorrect,
the court of appeals did not consider the action "groundless" and reversed the

award of fees.
^^^

Stephens v. Parkview Hospital, Inc?^ injects some confusion over the
applicable standard of review on fees for it states:

We note that the trial court's decision to grant or deny attorney fees will
not be disturbed absent an abuse of discretion. When the trial court
determines that attorney fees were not warranted under the statute

permitting the award ofattorney fees for bringing or pursuing a frivolous

claim, we will review that conclusion de novo.'^^

In Davidson v. Boone County^^^ the trial court awarded the county almost

358. See Greasel v. Troy, 690 N.E.2d 298, 304 (Ind. Ct. App. 1997).

359. 746 N.E.2d 104 (Ind. Ct. App. 2001).

360. Matin.
361. Ind. Appellate Rule 66(E).

362. 757 N.E.2d 193 (Ind. Ct. App. 2001). See suprq notes 286-89 and accompanying text.

363. 71 4N.E.2d 1111,11 15 (Ind. Ct. App.), flafopte£/o«/rfl/w/er, 71 8N.E.2d 753 (Ind. 1999).

364. SRL Plumbing & Sewer, Inc., 757 N.E.2d at 201. iND. CODE §§ 34-52-1-1 (1998)
provides: "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 . . .
."

365. SRL Plumbing, 757 r^.E.ld at 20U02.

366. 745 N.E.2d 262 (Ind. App. 2001).

367. Id. at 267 (citations omitted).

368. 745 N.E.2d 895 (Ind. Ct. App. 2001 ).



1202 INDIANA LAW REVIEW [Vol. 35:1157

$80,000 in attorneys fees without the county's requesting them.^^' Plaintiffs had

filed a claim against Boone County alleging discrimination and other
constitutional violations stemming from its construction ofa building without a
permit. The court ofappeals affirmed the trial court and also cited to Emergency
Physicians ofIndianapolis?^^ It held that a trial court has the power under the
statute to award fees sua sponte.^^' The facts were particularly egregious in the
case before the court and it found that, among other things, the plaintiffs had
brought their claims for purposes of harassment.

In Grubnich v. Renner^^^ the court of appeals concluded that, given the

changes in Indiana case law and ambiguity as to the extent of retroactivity of
relevant decisions, the question concerning whetherthe Medical Malpractice Act

limited a defendant's liability for post-judgment interest was so complex it
prevented his defense from being groundless.^^^ The decision includes a useful
summary of the standards for the award of interest and review of an award of
attorneys' fees. With regard to the latter, it follows the multistep process
outlined by Emergency Physicians ofIndianapolis.

Major V. OEC-Diasonics, Inc?^^ presented a different fee question. There
a law firm sought to foreclose on an attorney's fee lien and based the claim on

unjust enrichment, an equitable remedy. The defendant alleged that the lawyer's
professional misconduct in entering into an oral contingent fee modification, and

other acts, prevented quantum meruit recovery due to unclean hands.^^^ He also
argued that the lawyer must disgorge any fees as a result of ethical violations.

The court of appeals disagreed and ruled these arguments were factors to be
balanced, but were not complete barriers to recovery.^^^ Moreover, the risk to the

firm of losing the case on which the firm had worked for more than a decade
justified consideration of the oral contingent fee agreement. It supported the

quantum meruit award, which included a $650,000 bonus in addition to fees
calculated on the firm's hourly rates.^^^

E. Bankruptcy Stay

In Zollman v. Gregory^^^ plaintiffs filed a medical malpractice claim with the

Indiana Department of Insurance after the doctor sought federal bankruptcy

protection. Nonetheless, the federal bankruptcy court later allowed plaintiffs

369. Mat 898.
370. Id. at 849. See also Emergency Physicians of Indianapolis v. Pettit, 714 N.E.2d 1111,

1115(Ind. Ct. App. 1999).

371. Davidson, 745 N.E.2d at 900. See IND. CODE §§ 34-52-1-1 (1998).

372. 746 N.E.2d 1 1 1 (Ind. Ct. App. 2001).

373. /fi^. at 119-20.

374. 743 N.E.2d 276 (Ind. Ct. App.), trans, denied. 753 N.E.2d 1 5 (Ind. 2001).

375. /c?. at 281-82.

376. /^. at 282-83.

377. /of. at 360-61.

378. 744 N.E.2d 497 (Ind. Ct. App.), trans, denied, 753 N.E.2d 17 (Ind. 2001).



2002] CIVIL PROCEDURE 1203

relief from the stay to pursue their action.^^^ The court of appeals treated this

relief as a nunc pro tunc order, although it was not labeled as such. The
bankruptcy court had specifically directed that the plaintiffs be able to proceed

with their action and described that action as "pending" in state court.^^^ Thus,

the plaintiffs' filing was not void and tolled the running of the statute of
limitations on their claim.^*'

F. Burden ofProof

In B.E.I., Inc. v. Newcomer Lumber & Supply Co.,^^^ a lumber supplier sued
a homeowner on a theory ofaccount stated for building supplies delivered. The
homeowner disputed certain charges and credits, despite the fact that the supplier
had sent him invoices to which he never objected.^*^ The trial court entered
judgment against him inferring that his nonresponse to the invoices showed his
agreement that the amount claimed was correct.^*"* The court ofappeals affirmed
and approved the principle that "[a]n agreement that the balance is correct may
be inferred from delivery of the statement and . . . failure to object . . . within a

reasonable amount of time."^*^ This creates a prima facie presumption that the

debtor must rebut. The trial court's findings of fact that the homeowner had a
reasonable time to object and had not rebutted the presumption were not

erroneous, given the deferential standard of review.

Under worker's compensation law, the "odd lot" doctrine treats a worker as
totally disabled, even though the worker is not completely unable to work, ifthe

disability would prevent employment "in any well-known branch of the
competitive labor marked absent superhuman efforts, sympathetic friends or

employers, a business boom, or temporary good luck."^*^ When raised, it can
affect burdens of production. In Schultz Timber v. Morrison,^^^ the employer

used the odd-lot theory to argue that it had rebutted the employee's prima facie

case of total disability before the Worker's Compensation Board.^*^ The court
of appeals declined to recognize the principle stating that in Walker v. State,
Muscatatuck State Development Center^^^"^ our supreme court "did not expressly
adopt the odd lot doctrine."^^

379. Mat 498.
380. Mat 50 1-02.
381. Id.

382. 745 N.E.2d 233 (Ind.Ct.App. 2001).

383. Mat 235-36.
384. Mat 236.
385. Id. at 237 (quoting Auffenberg v. Bd. ofTr. ofColumbus Reg'l Hosp., 646 N.E.2d 328,

331 (Ind.Ct.App. 1995)).

386. See BLACK'S LAW DICTIONARY 559 (5th ed. 1983).
387. 751 N.E.2d 834 (Ind.Ct.App. 2001).

388. Mat 837-38.
389. 694 N.E.2d 258 (Ind. 1998).

390. Schultz Timber, 751 N.E.2d at 838.



1204 INDIANA LAW REVIEW [Vol. 35:1 157

United Farm Insurance Co. v. Riverside Autosales^^^ was a bailment action
brought by the insurance company as subrogee of the insured over a fire that
destroyed an automobile. The trial court granted the bailee, Riverside,judgment
on the evidence as to breach of warranty, but allowed the case to go forward on
negligence. Thereafter, the trial court made fmdings of fact and conclusions of
law sua sponte and entered judgment for Riverside as to negligence.^^^ In a
bailment where the arrangement benefits both parties, and property is delivered

to the bailee in good condition but is returned damaged, the inference arises that

the bailee has been negligent.^^^ The court of appeals concluded that Riverside
rebutted the inference by showing evidence of due care as reflected in the

fmdings. Thus, plaintiff had the ultimate burden of proof on negligence.^'*

Finally, the trial court's sua sponte findings and conclusions resulted in the court

of appeals treating the verdict as a general verdict and viewing the special

findings as going only to the specific issues they covered.^'^

G. Discovery

Davidson v. Perron^^^ involved a wrongful termination action by a former

police officer brought on the theory that he had been fired in retaliation. Under
the authority of Tyson v. State,^^^ the trial court struck the affidavit of one ofthe

officer's witnesses though he was proceeding pro se.^^' The witness had not been
listed for trial, the officer did not provide a witness list to defendant until after

the discovery cutoff date, and the testimony was prejudicial.^^ The court of
appeals also upheld the trial court's disallowance ofdiscovery regarding alleged

retaliatory firings ofother officers stating that the officer's claim had to stand on

its own.*"*^

Potts. V. Williams^^^ was a medical malpractice action brought by a minor
child for injuries suffered during delivery."^^^ The plaintiff obtained depositions
and trial transcripts oftestimony ofthe defendant's expert for cross-examination.

The trial court denied the defendant's motion to compel discovery on the ground

the materials were attorney work-product.''^^ The court ofappeals agreed because
the items were obtained in anticipation of litigation as required by Trial Rule

391. 753 N.E.2d 681 (Ind. Ct. App. 2001).

392. /t/. at 684.

393. Id sti 6^5.

394. Id.

395. Id at 684.

396. 756 N.E.2d 1007 (Ind. Ct. App. 2001).

397. 619 N.E.2d 276 (Ind. Ct. App. 1993).

398. Davidson, 756 N.E.2d at 1013.

399. Id at 1014.

400. Id a.t\0\5.

401

.

746 N.E.2d 1000 (Ind. Ct. App. 2001).

402. Mat 1003-04.
403. Mat 1005-06.



2002] CIVIL PROCEDURE 1205

26(B)(3) and the defendant did not show substantial need overbalancing work
product protection, because he had equal or better access to the previous

testimony of his own expert.^

H. Findings

The court of appeals continues to distinguish the significance of trial court
findings of fact when reviewing summary judgment rulings and judgments
resulting from bench trials or trials with advisoryjuries. Indiana Trial Rule 52^^^

requires the trial court to make findings whenever a bench trial takes place or
judgment is rendered with the help ofan advisoryjury. Those findings can result

from a request by the parties or sua sponte. There is a two-part process for

reviewing the findings-first, the appellate court must determine if the findings

are supported by the evidence, and second, whether thejudgment is supported by

the findings. The appellate court will affirm the judgment on any legal theory

supported by the findings, not just those theories '"espoused in the trial court

proceeding,'"**^ and will only reverse ifthejudgment is clearly erroneous.^^ The
Indiana Supreme Court reiterated this approach this year '\nG& NAircraft, Inc.
V. Boehm.^^^ Moreover, findings issued sua sponte are entitled to the same
standard of review.*^

In contrast, when a court makes findings in connection with a summary
judgment motion, they are not entitled to the same deference given in the case of

a bench trial or an advisory jury and they do not change the de novo standard of

review on summaryjudgment. As the court explained it in Ferrell v. Dunescape
Beach Club Condominiums Phase 7:*'®

Here, the trial court entered specific findings of fact and conclusions

thereon, which would normally trigger the two-tiered appellate standard

ofreview contained in Indiana Trial Rule 52. However, specific findings

and conclusions entered by the trial court when ruling on a motion for
summaryjudgment merely afford the appellant an opportunity to address
the merits of the trial court's rationale. They also aid our review by
providing us with a statement ofreasons for the trial court's actions, but

they have no other effect. Rather than relying upon the trial court's
findings and conclusions, we must base our decision upon the materials
properly presented to the trial court under Indiana Trial Rule 56(C).^"

404. Id. However, Marshall v. State, 759 N.E.2cl 665, 669-70 (Ind. Ct. App. 2001),

distinguished the applicability of Potts in a criminal case where the defendant did not seek

information of his own expert.

405. Ind. Trial R. 52.

406. Mitchell V. Mitchell, 695 N.E.2d 920, 924 (Ind. 1998).

407. Shenvar v. Johnson, 741 N.E.2d 1275, 1279 (Ind. App. 2001).

408. 743 N.E.2d 227, 234 (Ind. 2001).

409. Klotz V. Klotz, 747 N.E.2d 1287, 1 190 (Ind. App. 2001). See also supra Part II.F.

410. 751 N.E.2d 702, 709 (Ind. App. 2001).

411. /cf. (citations omitted).



1206 INDIANA LAW REVIEW [Vol. 35:1157

/. Injunctions, Declarations, and Other Special Relief

To obtain injunctive relief, the plaintiff typically has to show "irreparable
harm," that is, that there is no adequate remedy at law to redress his or her injury.
This usually means that compensatory damages will not make the plaintiffwhole
due to the uniqueness of the wrong involved.*'^ When an injunction is sought
before disposition of a case on the merits, the plaintiff must show additional
factors—^that there is a likelihood of success on the merits, that the status quo
will be maintained, that the balance ofhardships is in favor ofthe plaintiff if an

injunction is issued, and that the public interest is not harmed by issuance."*'^ The
court of appeals decided a number of injunction cases in 2001 illuminating the
type of injury that satisfies the irreparable harm requirement.

Normally, irreparable harm is absent where plaintiffs loss is purely
economic,'*''* but in Barlow v. Sipes*^^ the court issued a preliminary injunction
against an insurance adjuster who had accused a body shop of fraud. The body
shop owners sued for defamation and intentional interference with business

relationships.'*'^ Because they could not quantify the economic losses threatened

and because intangible reputational harm to the business was involved, the

remedy at law was inadequate.*'^ The court of appeals affirmed, despite
acknowledging that preliminary injunctive relief should be used sparingly.'*'^

In Cohoon v. Financial Plans & Strategies, Inc.^^^ irreparable harm for the
preliminary injunction was supplied by the presence ofan enforceable covenant
not to compete and the difficulty of ascertaining the loss to the former

employer's business goodwill from the employee's breach.*^^

Indiana strictly construes covenants not to compete against enforcement. So

to obtain an injunction based on one, the covenant must be reasonable in terms

of the employer's legitimate business interests and the geographic and

chronological limits it imposes.'*^' If it is enforceable, then the uncertainty as to

the exact monetary losses associated with loss of goodwill—^a property
right—can support a fmding of irreparable harm.'*^^ Moreover, the court of
appeals gives deference to the trial court's findings on these issues.'*^^ Hence, the

court ofappeals affirmed the trial court's injunction against the certified financial

planner's violation ofa two-year long covenant not to compete. It also found that

412. See DOBBS, supra note 1 42, § 25( 1 ).

413. Id.

414. Id.

41 5. 744 N.E.2d 1 (Ind. Ct. App.), trans, denied, 753 N.E.2d 16 (Ind. 2001).

416. Wat 2.
417. /^. at 6-8.

418. /^. at 9-10.

419. 760 N.E.2d 190 (Ind. Ct. App. 2001).

420. /flf. atl93.

421. /f/. at 194.

422. /i/. at 195.

423. /flf. at 193-94.



2002] CIVIL PROCEDURE 1207

the covenant was specific enough in terms of customers that this cured any

geographic overbreadth/^*

In contrast, in Mercho-Roushdi'Shoemaker-Dillery-ThoracO' Vascular Corp.

V. Blatchforct^^ the trial court denied the issuance of a preliminary injunction

sought by a group ofphysicians to enforce a noncompetition agreement.'*^^ The
court of appeals affirmed the denial because pure economic loss does not

generally resuh in injunctive relief/^^ Giving deference to the trial court, the

appellate court stated the trial court had not erred in determining that plaintiffs

failed to carry their burden to show that monetary losses were difficult to
calculate/^^

In Indiana Family & Social Services Administration v. Legacy Healthcare,
Inc.^^^'^ which focused on a dispute over the termination of a Medicaid provider

agreement, the court of appeals agreed with the trial court that the operator of a

nursing home did not show irreparable harm to itself or its mentally disabled
residents. This was because the nursing home only alleged pure economic harm,
even though in the form ofthreatened business failure/^*^ Moreover, because a

receiver had been appointed to run the nursing home, the court found no

irreparable harm to the residents who were being cared for under the control of
the receiver.'*^' The nursing home's reliance on pure economic harm to justify
a stay was particularly ineffective because it had failed to exhaust administrative
remedies/^^

In Reed Sign Service, Inc. v. Reid,^^^ an important decision for TRO
procedure, the court held that where a billboard owner who was ordered to
dismantle a sign had actual notice ofthe order, but was not served after a number
of service attempts, did not deprive the court of personal jurisdiction. This was
the result because actual notice, coupled with the attempts at service, showed that
notice reasonably calculated to inform the defendant of the proceeding was
undertaken. Moreover, the failure to order a bond did not void the TRO and
prevent a contempt citation where the TRO had dissolved and the defendant had
not complied with the order.

In Ferrell v. Dunescape Beach Club Condominiums Phase I, Inc.^^^ the court
discussed declaratory relief and also detailed the showing necessary for the

issuance ofa preliminary injunction. The case also provides a useful description
ofthe differences between preliminary and injunctive relief It emphasizes that

424. M at 195-96.
425. 742 N.E.2d 519 (Ind.Ct.App. 2001).

426. /(i. at 521.

427. /^. at 526.

428. /£/. at 523-24.

429. 756 N.E.2d 567 (Ind. Ct. App. 2001), trans, denied, 2002 Ind. LEXIS 254.

430. /d at 571.

431. Id

432. Mat 571-72.
433. 755 N.E.2d 690 (Ind. App. 2001).

434. 75 1 N.E.2d 702 (Ind. App. 2001 ).



1208 INDIANA LAW REVIEW [Vol. 35:1 157

difference as one oftiming—a preliminary injunction issues during the pendency
of an action while a permanent injunction is a remedy given after a final
determination. Finally, in Malone v. Price,^^^ the court canvassed the proper
procedures to follow to establish entitlement to the statutory remedy ofmandate,
to declaratory relief, and to a writ of mandamus.

J. Instructions

Several appellslte cases give good guidance on the standards for review of

trial court instructions. Review of the appropriateness of an instruction is
undertaken pursuant to an abuse of discretion standard. The appellate court
determines abuse of discretion using a three-part test: whether the tendered

instruction correctly states the law; whether there is evidence in the record to

support giving the instruction; and whether the substance of the instruction is

covered by other instructions that are given.^^^ Moreover, the harmless error

doctrine is particularly applicable to the giving of an erroneous instruction, for

one must show that it affected the outcome ofthe proceeding to gain reversal .^^^

K. Judgment on the Evidence

S.E. Johnson Co. v. Jack,^^^ another auto case, involved a dispute over

whether a subcontractor should be liable to a motorist for an accident at a road

construction site where asphalt had been removed leaving the yellow line

marking the roadway obscured.*'^ The subcontractor's theory was that its work
was accepted by the general contractor. Under Hill v. Rieth-Riley Construction

Co.y^^ '^acceptance'' eliminates the independent contractor's liability to third

parties. But, such acceptance is subject to the fact-sensitive, multifactoral test

ofBlake V. Calumet Construction Corp.^*^ The contractor moved for judgment
on the evidence at close of all the evidence, which was denied.^^ The court of
appeals asserted that there was sufficient evidence for the case to go to the jury
when it was not clear that the Indiana Department ofTransportation had accepted
the work at the end of each day.^^ The court strongly suggested that under
Blake, it would be difficult to take a case from the jury.

^

435. 755 N.E.2d 213 (Ind.App. 2001).

436. Faulk v. Northwest Radiologists, P.C., 751 N.E.2d 233, 241(lnd. App. 2001). See also

Kostidis V. General Cinema Corp. of Indiana, 754 N.E.2d 563, 570 (Ind. App. 2001 ).

437. Centennial Mortgage, Inc. v. Blumenfeld, 745 N.E.2d 268, 278 (Ind. App. 2001).

438. 752N.E.2d72(Ind.Ct.App.200l).

439. Id. at 15.

440. 670 N.E.2d 940, 944 (Ind. Ct. App. 1996).

441. 674 N.E.2d 167 (Ind. 1996).

442. 5.£.yo/i«jo«, 752 N.E.2d at 75-76.

443. /i/. at78.

444. Mat 77-78.



2002] CIVIL PROCEDURE 1209

L Jurisdiction

1. "Jurisdiction over the Case.
"—Georgetown Board ofZoningAppeals v.

Keele*^^ presented a dispute over a use variance granted by the Georgetown

municipal zoning board for the construction of multifamily housing on

agricultural land. Keele and other residents of the county sued to have the

variance invalidated on the ground that the municipal board had no subject-

matterjurisdiction to grant a variance, as the land was outside the city. The trial

court agreed and the board and developer appealed/*^ On review, the court of
appeals distinguished lack ofsubject matterjurisdiction which cannot be waived

from jurisdiction over the case, which can be waived. The court defined subject

matter jurisdiction as "the power of [a tribunal] to hear and determine a general

class of cases to which the proceeding before it belongs'"^'*^ and derives from a

constitutional or statutory grant of power. It cannot be forgone by a party. In

contrast, "jurisdiction over the case" is the authority to hear a specific case

within a category of cases over which a court has subject matter jurisdiction.'*'*^

The court ofappeals concluded that the board did have subject matterjurisdiction
over the variance.^*'

First, the court noted that an Indiana statute allows municipalities to control

zoning of land within a two mile fringe of city boundaries.'*^^ Second, it stated

that the board had subject matter jurisdiction over zoning variances. Thus,

following the reasoning ofBoard ofTrustees v. City ofFort Wayne,*^^ the court
concluded that even though the board did not fulfill the conditions ofthe statute,

that failure went to jurisdiction over the case, not over the subject matter.

Because Keele never raised his objections with the board originally, he and the

other plaintiffs waived the defect.^^^

In matters involving the Uniform Child Custody Jurisdiction Act

("UCCJA"),'*^^ a trial court must first decide if it has jurisdiction and then

whether that jurisdiction should be exercised.^^* Christensen v. Christensen^^^

raised the issue of whether the jurisdictional inquiry of the UCCJA goes to
subject matter, personal jurisdiction, or something in between, that is,

"jurisdiction over the case."

Under classic principles of personal jurisdiction, a defendant can consent to

445. 743 N.E.2d 301 (Ind. Ct. App. 2001).

446. Mat 302.
447. Id. at 303 (quoting Santiago v. Kilmer, 605 N.E.2d 237, 239-40 (Ind. Ct. App. 1992))

(alteration in original).

448. Id.

449. /J. at 304.

450. 5eea/5olND. Code 36-7-4-205 (1998).
451. 375N.E.2d. 1112(1978).

452. Georgetown Bd. ofZoning Appeals, 743 N.E.2d at 305.

453. IND. CODE §31-17-3-3 (1998).

454. See Ashburn v. Ashbum, 661 N.E.2d 39, 41 (Ind. Ct. App. 1996).

455. 752 N.E.2d 179 (Ind. Ct. App. 2001).



1210 INDIANA LAW REVIEW [Vol. 35:1157

a court's jurisdiction over his or her person, thereby waiving any defects in the
geographic power ofthe court/'^ One way for a defendant to consent is to seek
affirmative relief from the court in question. In Christemen, the former wife

filed a petition to enforce a foreign support decree in an Indiana court under the

Uniform Reciprocal Enforcement of Support Act."*^^ Prior to the Indiana
proceeding, she and her husband had shared legal custody, but she had been the

primary custodial parent ofthe children, who lived with her in Virginia.'*^^ The
court enforced the support order, but thereafter the husband sought to

domesticate the foreign decree and pursued a change in custody.'^^^ The trial
court domesticated the action on the assumption that both parties agreed and

were proceeding pro se. Thereafter the wife sought to vacate the domestication

and requested dismissal of the custody matters. The court denied this relief and
eventually changed physical custody to the father.*^

The court of appeals affirmed the trial court's jurisdiction to do so. First,
under the authority of Williams v. Williams,^^^ the court held that the

jurisdictional requirement of the UCCJA did not, on the facts before it, go to
subject matter. Instead, it raised the issue of jurisdiction over the case."^^^ Using

the same framework applicable to consent to personaljurisdiction, it held that the
wife waived objection to the court's authority because she expressly consented

to the trial court's power when she originally sought affirmative relief from the
court."*^^ The court of appeals also justified this result in policy terms, arguing

that failing to give effect to the trial court's ruling would promote forum

shopping by parents unhappy with custody determinations in one jurisdiction."*^

2. PersonalJurisdiction.—Bartle v. HCFP Funding, Inc.^^^ raised issues of
preclusion and personal jurisdiction and also characterized choice of law

provisions in the context ofpersonal jurisdiction. The action was one to enforce
a judgment obtained in a Maryland court proceeding against the Indiana
guarantor ofa sale ofaccounts receivable. The defendant defaulted in the action,
so he never appeared and consented to the Maryland court's jurisdiction over

him."*^^ The facts relating to personal jurisdiction were not actually litigated in
the Maryland proceeding and so they did not give rise to issue preclusion on the
jurisdictional questions. This meant that the guarantor could collaterally attack

the validity ofthe Maryland judgment in the Indiana court.^^^

456. See Pennoyer v. Neff, 95 U.S. 714 (1877).

457. Christensen, 752 N.E.2d at 181.

458. Id. at 181-82.

459. Id.

460. Id

461. 555 N.E.2d 142 (Ind. 1990).

462. Christensen, 752 N.E.2d at 183.

463. Id

464. Mat 184.
465. 756 N.E.2d 1034 (Ind. Ct. App. 2001).

466. /^. at 1035.

467. /c/. at 1036.



2002] CIVIL PROCEDURE 1211

The guarantor had no contact with Maryland other than his execution ofthe

guaranty agreement. The plaintiffwas not even a Maryland entity and there was
no evidence the guarantor had any other connection with the jurisdiction."*^* On
the facts ofthe case, the court of appeals concluded that the guarantor's actions

did not come within the Maryland long-arm statute which required that he
transact business in the state. The threshold requirement for personal jurisdiction

was not satisfied.'*^' Moreover, the court held that a choice of law provision is
not the equivalent ofa forum selection clause. Thus, the choice of law provision

alone could not establish the guarantor's consent to Maryland jurisdiction."*^^

3. Subject Matter Jurisdiction.—Lake County Sheriff's Corrections Merit
Board v. Peron^^^ combined issues of mootness with failure to exhaust
administrative remedies. In that case, a group of correctional officers sought a

preliminary injunction to stay the merit board from holding disciplinary hearings

before they could conduct discovery.^^^ The officers were accused of leaving
work without permission and falsifying time sheets, among other things. Notice
was given to them only three days before the hearing.*^^ The trial court granted
the injunction on the ground that the officers would be irreparably harmed and

stayed proceedings for forty-five days. On appeal by one of the officers, the
court ruled that the injunction had expired after forty-five days and the merit

board granted an additional continuance, rendering the appeal moot."*^"* The court

of appeals disagreed and held that the public interest exception to the mootness

doctrine applied.'*^^ It considered the issue raised—^whether a stay of
administrative proceedings is proper to allow discovery—^to be one of great
importance and likely to reoccur.*^^ The court also held that the trial court lacked
subject matterjurisdiction because the officers aborted the administrative process

and did not exhaust their administrative remedies. Thus, no special exception to

the exhaustion requirement was made for discovery.^^^

In Boone County Area Planning Commission v. ShelburneJ^^^ the question
was whether the trial court abused its discretion when it ordered the planning
commission to certify that it had no recommendation to make to the board of
commissioners after it had a matter pending for many months. Construing
Indiana Code section 36-7-4-608(b/^^ and related statutes, the court of appeals
held that a planning commission is statutorily required to initiate a public hearing

468. Id

469. Id

470. Id at 1037-38.

471. 756 N.E.2d 1025 (Ind. Ct. App. 2001),

472. Id at 1026-27.

473. Id at 1027.

474. Id

475. Id

476. Id

477. /£/. at 1028-29.

478. 754 N.E.2d 576 (Ind. Ct. App. 2001).

479. IND. Code § 36-7-4-608(b) (1998).



1212 INDIANA LAW REVIEW [Vol. 35:1 157

on a proposed zoning map amendment within sixty days/*° However, it is not
required to complete all its information gathering within that time frame/^' But,

not only did the planning commission repeatedly delay concluding any hearing,

it also decided not to take any action on the matter before it. Because the

planning commission abandoned its role in the zoning process, it was not a
violation ofsubject matterjurisdiction or an abuse ofdiscretion for the trial court

to mandate that the commission certify to the board ofcommissioners that it had
no recommendation.'**^

In Turner v. Richmond Power & Light Ca,"**^ the court of appeals reversed
the trial court's conclusion that it had no subject matter jurisdiction over an

action brought against the Richmond Power and Light Company by a city
employee. The dismissal had been made on the basis of the exclusive
jurisdiction ofthe worker's compensation system, but the court ofappeals found

that the trial court had mischaracterized the nature ofthe utility.**"* It concluded

that, as a matter of law, it was not a city agency, but a hybrid entity,
distinguishable enough from the city that the plaintiff was not its employee."**^
The court ofappeals reiterated this analysis on Petition for Rehearing"**^ and cited
the Indiana Supreme Court's opinion in GKNCo. v. Magness.^^^ GKNholds that
when an appellate court reviews a trial court's disposition ofa case made purely
on a written record, the trial court's fmdings of fact are not entitled to deference

but are treated as issues of law.***

Grubnich v. Renner,^^^ discussed supra, involved an action for dental

malpractice and questioned whether the trial court retained jurisdiction to grant

post-judgment interest three years after entry ofajudgment that did not mention

interest.*^ Noting that the post-judgment interest statute directs that interest

accrues on the date ofthe verdict and that case law treats such interest as part of

the moneyjudgment, the appellate trial court found the court did have the power
to assess interest when the plaintiffs sought to have their judgment enforced.*^'

The Indiana Supreme Court has granted transfer and vacated the opinion of
the court of appeals in Green v. Hendrickson Publishers, Inc., which had
concluded that certain counterclaims for failure to timely pay royalties were not

480. 5/ie/6MrAie, 754 N.E.2d at 581-82.

481. Id

482. Id.

483. 756 N.E.2d 547 (Ind.Ct.App. 2001).

484. /^. at 558.

485. Id

486. See Turner v. Richmond Power & Light Co., 763 N.E.2d 1005 (Ind. Ct. App. 2002)
(Petition for Rehearing).

487. 744 N.E.2d 397 (Ind. 2001).

488. See Turner, 163 't^.Eld at 1005.

489. 746 N.E.2d 1 1 1 (Ind. Ct. App. 2001); see also supra notes 372-73 and accompanying

text.

490. Grubnich, 746 N.E.2d at 1 13.

491. /^. at 115.



2002] CIVIL PROCEDURE 1213

copyright claims within the exclusive jurisdiction of the federal courts."^^^

Sims V. Beamer^^^ involved a § 1983 action traceable to a judge's denial of

a request for default after the judge had entered an order changing venue. The

court of appeals stated that when judicial immunity is in question, a court's
jurisdiction will be broadly construed. This fosters the policy "to preserve

judicial independence in the decision-making process .... Judicial decision-

making without absolute immunity would be driven by fear of litigation and
personal monetary liability.'"*^^

M Limitation ofActions
Allen V. GreatAmerican Reserve Insurance Ca*^^ involved relating back an

amendment of pleadings so as to satisfy the statute of limitations. There
subagents sold tax-deferred annuities for a general life insurance agent."*^^ They
brought actions against the general agent and the insurance company on
numerous theories involving misconduct regarding misrepresentations about
front-loading provisions of the annuities."*'^ The trial court granted the

defendants partial summaryjudgment and the subagents appealed."*^* The court
of appeals concluded that the subagents' claims related back, but found that the

agents did not reasonably rely on representations concerning the annuity

provisions in question.*^

Indiana Code section 22-3-3-27 imposes a one-year limit on modifying a
worker's compensation award for permanent partial impairment awards.^°°

Halteman Swim Club v. Duguicf^^ raised the question ofwhether this limit also
applies to claims for medical expenses incurred after the permanent partial

impairment award under Indiana Code section 22-3-3-4(c).^°^ It showed again the
courts' use of the doctrine of legislative acquiescence.

Twenty years previously, in Gregg v. Sun Oil Co, ,^°^ the court ofappeals had
decided that claims for medical expenses can be brought if the claim "is filed

within one year from the last day on which compensation was paid, whether
under the original award or a previous modification."^^* Thereafter in Berry v.

492. Green v. Hendrickson Publishers, Inc., 75 1 N.E.2d 81 5 (Ind. App. 2001), trans, granted,

2002 WL 1397891 (Ind. Jun 27, 2002) (NO. 79S02-0206-CV-352).
493. 757 N.E. 2d 1021 (Ind. App. 2001).

494. Id. at 1024.

495. 739 N.E.2d 1080 (Ind. Ct. App. 2000).

496. /^. at 1081-82.

497. Id at 1082.

498. Id at 1083.

499. /^. at 1085.

500. iND. CODE §22-3-3-27 (1998).
501. 757N.E.2d 1017 (Ind. Ct. App. 2001).

502. Ind. Code § 22-3-3-27(c) ( 1 998).

503. 388 N.E.2d 588 (Ind. App. 1979).

504. Gregg, 388 N.E.2d at 590.



1214 INDIANA LAW REVIEW [Vol. 35:1 157

Anaconda Corp.^^^ the question was whether the one-year statute of limitations
runs from the date ofthe last benefit payment or from the date ofthe last medical
expense payment. The court concluded that the operative date was the last
benefit payment date.^^

In Halterman Swim Club, the court of appeals characterized the distinction
between medical expenses and the permanent partial disability award as "a
distinction without a difference" under Gregg.^^^ Therefore plaintiffwould have
to provide a significant reason for failing to follow Gregg and related cases.
Because the claimant presented no justification for deviating from the
legislature's tacit agreement with the courts' interpretation, the Worker's

Compensation Board erred when it denied the employer's motion to dismiss.^^*
In Rogers v. MendeP^ and following Boggs v. Tri-State Radiology, Inc.,^^°

the court of appeals concluded that the two-year, occurrence-based limitations

of action under the medical malpractice statute was constitutional as applied
where, in a lawsuit over alleged malpractice in connection with uterine cancer,

the plaintiff discovered or should have discovered her possible claim within ten

months ofthe running ofthe period. In contrast, in Shah v. Harris,
^^^

the plaintiff

was allowed to have the limitations period run from the date ofdiscovery and not
the occurrence, where seven years previously her doctor had misdiagnosed her

multiple sclerosis as a vitamin deficiency and she gained no information within

the two-year period to put her on notice of a potential claim.

In Lusk V. Swanson,^^^ the court ofappeals concluded that the standard form
letter sent to the plaintiff from the Indiana Department of Insurance concerning

her medical malpractice claim and stated in hypothetical terms, for example, ""If
Indiana Code 34-18-1-1, et seq. is applicable to this claim," did not toll the
running ofthe statute of limitations on her action against a provider who was not
covered by the Medical Malpractice Act.

A^. Local Rules

In Spudich v. Northern Indiana Public Service Co.,^^^ plaintiff Spudich was
stringing lights on the trees at the East Chicago City Hall building. He was hurt
by power from noninsulated lines owned by the Northern Indiana Public Service
Commission ("NIPSCO") while standing in an aerial bucket.^** One issue that
developed in the case was whether expert testimony would establish a duty on

505. 534 N.E.2d 250 (Ind. Ct. App. 1989)

506. /J. at 253.

507. Halteman Swim Club v. Duguid, 757 N.E.2d 1017, 1020 (Ind. Ct. App. 2001).

508. Id ai 1020.

509. 758 N.E.2d 946 (Ind. Ct. App. 2001).

510. 730 N.E.2d 692, 694 (Ind. 2000).

511. 758 N.E.2d 953 (Ind. Ct. App. 2001).

512. 753N.E.2d748(Ind.Ct.App.200I).

513. 745 N.E.2d 281 (Ind. Ct. App. 2001).

514. /^. at 284-85.

^



2002] CIVIL PROCEDURE 1215

NIPSCO's part to insulate wires within a certain distance from the tree where
Spudich was working. During discovery, NIPSCO asked Spudich to designate
experts he would call at trial.^'^ This information had not been provided when
NIPSCO moved for summary judgment.^^^ Spudich then filed supplemental
interrogatory answers in which he designated an expert witness, and then

opposed NIPSCO's motion, arguing, among other things, that NIPSCO had a
duty to insulate lines within a certain distance from trees. He used the affidavit
of the expert to support his opposition.^'^

Lake County Local Rule 4 permits the moving party to file a reply to the
nonmoving party's opposition. Conversely, Trial Rule 56 makes no mention of
a reply. After deposing the expert, NIPSCO filed a reply in which it designated
evidence in support of its motion that it had not previously used.^'* The trial
court granted NIPSCO summaryjudgment and the plaintiffappealed. He argued
that Local Rule 4 was in conflict with Rule 56.

The court ofappeals stated that, as a general proposition, Indiana Trial Rules
trump contrary local rules, although Trial Rule 81 itself allows for local rules to

be promulgated.^'^ The question is one of consistency. The test established by
the Indiana Supreme Court is whether it is possible to apply both a trial rule and

a local rule at the same time."*^ In the case of Rule 56, a reply is neither
authorized nor prohibited. However, the court of appeals noted that the rule

contemplates supplemental information being provided, so that "additional

evidence after initial filings is contemplated . . . and the Local Rule [4] merely

provides a mechanism for filing that evidence not inconsistent with the Trial
Rule.""' Spudich also argued that even ifLocal Rule 4 were proper, the content

of NIPSCO's reply still violated Rule 56(C),"^ which speaks of making
evidentiary designations at the time the motion is filed. The court of appeals
rejected this argument as well, again relying on that portion of Rule 56 which

authorizes supplementation."^

O. Preclusion

City ofAnderson v. Davis^^* was a case that arose out ofa police dog's attack
of an officer."^ The plaintiff officer charged that the dog should not have been
used because his propensity to attack was known. He also claimed excessive

515. Id ai2S5.

516. Id

517. Id

518. Id

519. Mat 286.
520. Id (citing State v. Bridenhager. 279 N.E.2d 794, 796 (Ind. 1972)).

521. Mat 287.
522. Id at 288.

523. Mat 288-89.
524. 743 N.E.2d 359 (Ind. CtApp. 2001).

525. Mat 288-89.



1216 INDIANA LAW REVIEW [Vol. 35:1 157

force. ^^^ The officer had previously filed a civil rights claim in federal court that
was dismissed on summary judgment.^^^ The court of appeals held that the
officer's argument concerning knowledge of the dog's propensity was a
negligence claim barred by governmental immunity. While the court conceded

that the status ofan excessive force claim in the context of immunity is not clear,

it concluded that the plaintiff was collaterally estopped by the federal case on
that theory."* Indiana recognizes the doctrine of collateral estoppel (issue

preclusion) in an inter-system context between state and federal courts. Because

the same issues were litigated in the federal action and the officer had a full and
fair opportunity to develop them there, he was precluded from relitigating them
in the Indiana court."^ The court also stated that appellate review of
governmental claims of immunity is de novo and that no particular deference is

given the trial court determination of the issue.^^°

In re Adoption ofA.N.S.^^^ involved the concurrent jurisdiction of a court

determining paternity and a court authorizing adoption. The biological father
notified the mother of his intention to contest the adoption of a child bom out of
wedlock, but did not begin a paternity proceeding until a few days after the time

required by statute.^^^ The mother contested paternity by a summary judgment
motion, which argued that the father's notification came too late, but her motion
was denied. Later she initiated a separate adoption action in another court ofthe

same county and argued that the father should not be allowed to intervene

because he had not objected to the adoption within the statutory period. The
adoption court eventually allowed intervention and the mother appealed.^^^ The

appellate court did not reach the merits ofthe case, but instead determined that

the prior proceeding precluded relitigation of the issue of paternity, foreclosing

the adoption. The court recognized the concurrentjurisdiction ofboth courts, but
treated preclusion as dispositive."'*

P. Real Party in Interest

IDEMv. Jennings Northwest Regulatory Utilities^^^ involved a dispute over
the status of a water and sewage utility district. The Indiana Department of
Environmental Management ("IDEM") originally established the utility such that

526. Mat 361.
527. Id.

528. /flf. at366.

529. Id.

530. Mat 362.
531. 741 N.E.2d 780 (Ind. Ct. App. 2001).

532. Id. at 782. ^ee iND. CODE § 3 1-3-1-6.4 (repealed and reenacted as iND. CODE §3 1-1 9-3-4

(1998)). The statute requires the putative father to establish paternity by action to contest an

adoption within thirty days of notice.

533. y^.A^.S.,741N.E.2dat784.

534. Id at 787.

535. 760 N.E.2d 184 (Ind. Ct. App. 2001).



2002] CIVIL PROCEDURE 1217

its board would be elected by customers and it would be independent of the

county commissioners. Later, IDEM sought to change that structure by issuing
an "Amended Order" to its previous final order ofagency action.^^^ The utility
filed a petition forjudicial review ofthe Amended Order and IDEM defended on
the bases that the utility lacked standing to sue and was not the real party in

interest. The petition was dismissed, and the utility amended its petition, but
only after the thirty-day period specified in the Administrative Orders and

Procedures Act forjudicial review. The trial court proceeded with the action and
set aside the Amended Order. IDEM appealed on the ground of lack of subject
matter jurisdiction.

^^^

The court ofappeals agreed with IDEM that the later petition could not relate
back to the earlier one, in order to bring the utility's action within the time period

for seeking judicial review of agency action. It thus rejected the argument that

the dismissal should have been treated as a simple 12(B)(6) failure to state a

claim that could be remedied.^^* However, it disagreed that the original petition

was subject to dismissal, for it found that the utility did have standing to sue and
was the real party in interest. The utility had standing under Indiana Code
section 4-21.5-5-3(a)(4) as an entity "aggrieved or adversely affected by the

agency action."^^^ This was because the Amended Order removed the utility's
independence, which was prejudicial. Moreover, there was standing because the
utility should have received notice of the action as the entity created by the

original order and would be affected by its amendment.^^^ For similar reasons,

the utility was the real party in interest, for the right threatened—^to be
independent—^was owned by the utility.^'*'

Q, Right to Counsel

In a decision that raised some of the issues the Indiana Supreme Court
grappled with in Sholes v. Sholes,^^^ the court in Lattimore v. Amsler^^^ held that

the pauper statute creates an independent right to court-appointed counsel. The
case involved a father who filed a pro se proceeding to establish paternity, which
was dismissed. The court believed the opinion in Holmes v. Jones^^ required the
counsel, so that once the trial court found the father indigent and waived the

filing fee, it had no discretion to deny him representation. How this opinion
should be read in light ofthe Indiana Supreme Court's refinement ofthese issues
in Sholes is an open question.

536. /^. at 186.

537. /^. at 186-87.

538. /flf. at 187-88.

539. Id. at 188; see also IND. CODE § 4-21 .5-5-3(a)(4) (1998).
540. Je«rtmg5, 760 N.E.2d at 188-89.

541. Id.

542. 760 N.E.2d 156 (Ind. 2001 ). See also supra notes 58-84 and accompanying text.

543. 758 N.E. 2d 568 (Ind. Ct. App. 2001).

544. 719 N.E.2d 843 (Ind. Ct. App. 1999).



1218 INDIANA LAW REVIEW [Vol. 35:1157

R. Service/Notice

In a dispute over a permanent protective order issued against a father, the

court of appeals construed proper service under Trial Rule 4. 1 (A)(3). In Hill v.

Ramey,^^^ the father, Hill, was served with a temporary protective order and later
with a permanent protective order by the sheriffleaving a copy ofthe papers with

his parents at their home. However, Hill was living in Louisville, Kentucky, not
with his parents, at the time of service.^"*^ He requested relief from the default
judgment leading to the permanent protective order on the grounds of lack of
notice. This was denied.^"*^ The court of appeals reversed and held that even if
service was made at Hill's parents home on the theory that it was his last known
address, this was not sufficient to satisfy the requirement that it be made at his
"dwelling house or usual place ofabode."^*' Thus, no personal jurisdiction had

ever been established over Hill, rendering the court's action void. This was true
even if he had received actual notice ofthe proceeding. Hill is a good example

ofthe fact that the procedures for service are strictly construed.
^"^^

Boczar v. Reuherf^^ involved a lawsuit by an attorney to collect his fee. The
court of appeals made a number of points concerning personal jurisdiction and
service. In that action, the plaintiff attorney used abode service to acquire

jurisdiction over the defendants but did not follow it up by mailing a copy ofthe

summons to them as required by Indiana Trial Rule 4.1(B). Distinguishing the
decision in Barrow v. Penningion,^^^ the court concluded that this failure did not
deprive the court ofpersonaljurisdiction over the defendants where they received

actual notice and the "exigencies" ofBarrow were not present.^^^ In Volunteers

ofAmerica v. PremierAuto Acceptance Corp,,^^^ the appellate court opined that
in a garnishment action, a summons addressed simply to the employer and not to
a specific officer or person is inadequate for service where the employer did not

have actual notice of the proceeding.

S. Settlement

Last year in Vernon v. Acton, the Indiana Supreme Court established that a
settlement agreement need not be in writing to be enforceable.""* The court of
appeals applied this principle in a novel context in In re Estate ofSkalka.^^^ The
case involved a family dispute over real estate and an action to partition. During

545. 744 N.E.2d 509 (Ind. Ct. App. 2001).

546. /^. at 510.

547. Mat 511.
548. Id

549. /^. at 512.

550. 742 N.E.2d 1010 (Ind. Ct. App. 2001).

55 1

.

700 N.E.2d 477 (Ind. Ct. App. 1998).

552. Boczar Sit \0\5'\6.

553. 755 N.E.2d 656 (Ind. Ct App. 2001).

554. 732 N.E.2d 805, 809 (Ind. 2000).

555. 751 N,E.2d 769 (Ind. Ct. App. 2001).



2002] CIVIL PROCEDURE 1219

the pretrial conference, the trial judge met with the parties without their attorneys

present and reached a settlement.^^^ Thereafter, the plaintiffs' attorney reduced

the settlement agreement to writing, but the parties never signed it. Later, the

plaintiffs alleged that they had not entered into a settlement agreement.

Nonetheless, the court enforced one and made supportive findings. Plaintiffs
appealed, arguing among other things, that there was insufficient evidence they
had agreed to settle, that the judge acted as a mediator in violation of the ADR
rules, and that in meeting with them without their lawyers, the judge improperly

pressured them to settle.

The court of appeals rejected all arguments. First, and given the deference
accorded to trial court findings, it concluded that there was sufficient evidence
to support the judge's opinion that there was a settlement, particularly because
plaintiffs' own lawyer drafted an agreement incorporating it. That fact removed
any concern over undue pressure. If the plaintiffs did not really agree to a

settlement, their lawyer would not have drafted the document."^ Finally, the

court rejected the notion that the judge functioned as a formal mediator in

violation ofthe ADR rules. Although in remarks the judge spoke of "no longer
going to be the mediator"^^^ this statement, in context, showed that he was simply
attempting to assist the parties to reach settlement.

T. Standard ofReview

In Justiniano v. Williams^^^ the court of appeals applied the principle that

review ofa paper record requires no special deference on findings in the context

ofa worker's compensation proceeding. In Walker v. State, the Indiana Supreme
Court held that where there is no evidentiary hearing below, the facts are not in

dispute, and review is ofa documentary record, the questions on appeal are akin

to legal ones.^^° The court ofappeals stated that in making such "legal analysis"
under the Worker's Compensation Act, the doubts as to the Act's meaning should

be construed in favor of coverage to foster the humane purpose of worker's
compensation.^^'

In Justiniano, 2i worker whose legs were injured in a single accident, argued
that the board did not give him a large enough award because it used the wrong
standard to judge his degree of impairment.^^^ The court of appeals disagreed,
noting that the award made was supported by the statement of plaintiff s own
doctor as to the percentage of his impairment in terms of the "whole body
standard."^^^ The board's hearingjudge was not required to accept a stipulation

556. Id. 2X110.

557. Id ai 112-13.

558. Id at 112.

559. 760 N.E.2d 225 (Ind. Ct. App. 2001).

560. 694 N.E.2d 258, 266 (Ind. 1998).

561

.

Justiniano, 760 N.E.2d at 228.

562. Id 2X221.

563. Mat 228-29.



1220 INDIANA LAW REVIEW [Vol. 35:1157

that showed a larger injury, but could make independent inquiry into the matter
by analyzing the claimant's medical records, which findings could then be

adopted by the board.^^

Although it ultimately reversed the trial court's disposition, Homer v.
Burman^^^ reiterates that on appellate review, extreme deference is generally

accorded the actions of the Small Claims Divisions of Indiana courts of general

jurisdiction: "Indiana Small Claims Rule 8(A) provides for informal hearings

with relaxed rules ofprocedure in order that speedyjustice can be dispensed. As
a result, we are particularly deferential to the trial court's judgment."^^

U. Standard ofReview Where No Appellee Brief

What should the response ofthe courts ofappeals be when an appeal is taken
but the winner below, the appellee, files no brief in opposition? Unfortunately,

this is a frequently recurring situation. The appellate decisions are in agreement
that in that circumstance, a lesser showing is required of an appellant to obtain

a reversal. All that need be demonstrated is that there is a "prima facie" showing

of error below. As the court explained in Muncie Indiana Transit Authority v.
Smith,''''

At the outset we note that Smith has failed to file an appellee's brief.
When an appellee fails to submit a brief in accordance with our rules, we
need not undertake the burden of developing an argument for the

appellee. Rather, Indiana courts have long applied a less stringent

standard ofreview with respect to showings ofreversible error when an
appellee fails to file a brief. Thus, we may reverse if the appellant is
able to showprimafacie error. In this context, "prima facie" is defined
as "at first sight, on first appearance, or on the face of it."

As these cases show, this will continue to be the approach even under the new
Appellate Rules.

V. Standing

Cittadine v. Indiana Department ofTransportation'^^ presented the question
whether a local Elkhart citizen could use the public standing doctrine to force the

Indiana Department of Transportation (INDOT) to prevent a railroad from
placing rolling stock on an interchange on Elkhart city streets. In general, the

public standing doctrine allows a member ofthe public with no specific interest
or injury at stake to initiate litigation to enforce a public right. Because of

inquiries from acquaintances, plaintiff Cittadine sought a writ of mandamus

564. Id. at 229.

565. 743 N.E.2dl 144 (Ind.Ct.App. 2001).

566. /t/. at 1146.

567. 743N.E.2d 1214, 1 2 16 (Ind.Ct.App. 2001) (citing Robinson v. Valladares, 738 N.E.2d

278, 280 (Ind. Ct. App. 2000)) (all other citations omitted).

568. 750 N.E.2d 893 (Ind. Ct. App. 2001).



2002] CIVIL PROCEDURE 1221

requiring INDOT to interpret Indiana Code section 8-6-7.6-1 (governing
obstructions of motorist views at railway-highway intersections) to prevent the

railroad practice. He specifically relied on the public standing doctrine to sue.^^^
But according to the court of appeals, the Indiana Supreme Court has

sign ificantly narrowed the doctrine in Pence v. State^^^^ and now requires extreme
circumstances tojustify a lawsuit based solely on taxpayer or citizen status. The
rationale for this approach is to protect state separation of powers. The court
noted that there were legitimate reasons for the manner in which INDOT acted,
and it exercised its executive branch power consistently with its authority, so the

suit would not be allowed.^^'
In In re Guardianship ofK.T.^^^ the court of appeals reiterated that the

fundamental principles of standing are whether the person seeking relief has a

demonstrable injury in respect ofthe lawsuit and is the proper person to invoke

the court's power for such relief. Under those guidelines, it concluded that the
natural father and custodial parent of a child bom out ofwedlock had standing
to seek a modification of the court order allowing visitation by the child's

maternal grandparents, who had been the previous guardians of the child.

W. Summary Judgment

In Board ofCommissioners ofthe County ofHarrison v. Lowe,^^^ the trial
court granted the county partial summary judgment on the ground it was
"legislatively" immune from suit arising from an auto accident under the Indiana
Tort Claims Act.^^^ However, the county was not totally immune because posting
warning signs regarding road conditions is not statutorily mandated. On appeal,
the county argued that summary judgment in its favor was still appropriate,
because the plaintiffhad not designated the warning issue as a material fact when
opposing the motion."^ The court of appeals disagreed, citing to Cavinder
Elevators, Inc. v. Hall,^^^ a 2000 decision of the Indiana Supreme Court that
made it clear the nonmoving party has no obligation to present opposition
evidence to avoid summary judgment, if the moving party has not first met its
burden of showing no genuine issue of material fact .^^^ The case also contains
an exhaustive discussion of the history of immunity under the Act and ^he
legislative exception.^^*

569. Id at %95.

570. 652 N.E.2d 486, 488 (Ind. 1995).

571. OY/fli/me, 750N.E.2dat896.

572. 743 N.E.2d 348 (Ind. Ct. App. 2001).

573. 753 N.E.2d 708 (Ind. Ct. App. 2001).

574. /^. at 710-11.

575. /t/. at 720.

576. 726 N.E.2d 285, 290 (Ind. 2000).

577. Zowe, 753 N.E.2d at 720.

578. Mat 716-19.



1222 INDIANA LAW REVIEW [Vol. 35:1157

In Steuben County Waste Watchers v. Family Development Ltd.^^^ the

controversy was over whether a developer was required to obtain an
improvement location permit before building a landfill. The county and
environmental groups sued to require the permit. The developer moved for
summaryjudgment, which the trial court granted.^*^ In opposition to the motion
for summary judgment, plaintiffs attached affidavits that referred to the prior
condition ofthe landfill and that also included statements from the county zoning

administrator as to the steps by which the permit could be obtained.^*' On
review, the Indiana Court ofAppeals held that the trial court had properly struck

these materials. The prior condition ofthe landfill was irrelevant to the building
of a subsequent landfill, and the county zoning commissioner's comments
represented a statement of legal conclusions, not facts.^'^ In reviewing the

adequacy of the administrator's affidavit, the court of appeals noted that,

normally, not even expert witnesses are competent to testify as to legal

conclusions.^" Although it agreed with the trial court's striking ofthe affidavits,

the court reversed, stressing that a reviewing court gives no special deference to

a trial court's interpretation of a statute.^**

In Chandler v. Dillon^*^ the trial court granted the plaintiff an extension of

time to respond to a motion for summary judgment and then rescinded the
extension, giving the plaintiffonly one day to oppose the motion. Thereafter the

trial court granted summary judgment.^*^ It gave numerous reasons for the
rescission: that the extension was "inconsistent" with prior orders establishing

a case management schedule; that the order had a stamped, not written, signature;
and that the order was issued without a hearing.^*^ The court of appeals
concluded that such a short time to respond after the grant of an extension

deprived the plaintiff ofdue process.^'* It also rejected the trial court's reasons

for the rescission.^*^ It noted that under State ex rel. Peacock v. Marion Superior
Court, Civil Div., Room No. 5,^^ a stamped signature is given the same effect as
a written one, absent specific evidence of irregularity.^^' Nothing in the

applicable trial rules for enlarging time or granting summaryjudgment requires
a hearing before an extension to respond to a summaryjudgment motion may be
given.

579. 753 N.E.2d 693 (Ind.Ct.App. 2001).

580. Mat 696.
581. Id.

582. Mat 699.
583. Mat 697-700.
584. Id.

585. 754 N.E.2d 1002 (Ind. Ct App. 2001).

586. Mat 1004.
587. Mat 1005-06.
588. Mat 1006.
589. Id (citing Harder v. Estate of Rafferty. 542 N.E.2d 232, 234 (Ind. Ct. App. 1989)).

590. 490N.E.2d 1094, 1096 (Ind. 1986).

591. C/ia«£^/er,754N.E.2datl005.



2002] CIVIL PROCEDURE 1223

Azhar v. Town ofFisher
s^"*^ involved a citizen lawsuit for violation of the

Open Door Act against the town, town council, and an ad hoc committee ofthe
town council. The trial court granted defendants summary judgment.^^^ The
court of appeals concluded that the plaintiff was not prejudiced when the
defendants' motion to dismiss was converted to summary judgment motion
without express notice.^^^ This was because he was given adequate time to
respond. Moreover, the obvious use of evidence outside the pleadings should

have put the plaintiffon notice that the motion was actually a summaryjudgment
request.^^^ However, summary judgment was unwarranted because genuine
issues of material fact existed regarding whether the defendants had cured their

previous violation of open door requirements.^^

In Deuitch v. Fleming^^^ the trial court granted summary judgment, but the
court of appeals reversed concluding that there were genuine issues of material

fact as to breach of duty, causation, and elements of res ipsa loquitur. In so

doing, the court described what it characterized as ambiguity in the standards for

granting summaryjudgment.^'* The court was particularly critical ofthe Indiana
Supreme Court's opinion in Jarboe v. Landmark Community Newspapers of
Indiana, Inc.,^^ which prohibits a movant on summaryjudgment from meeting
its prima facie burden by merely pointing out that a plaintiffhas failed to produce

evidence raising material issues offact on essential elements ofa claim. For the

Deuitch court, this created the following reality: "Thus, applying the standard

as articulated in Jarboe permits a plaintiff who has no evidence supporting his
claim to proceed to trial, thereby wasting the parties' time and money as well as
judicial resources. One would hope that this anomaly would be addressed by the
supreme court."^°° Thus, it requested direction from the Indiana Supreme Court
on these questions.^'

A number of appellate cases reiterate that simply because cross-motions for
summary judgment are filed, this does not change the standard of review and
each motion should be scrutinized on its own under the applicable requirements
for summary judgment.^°^

592. 744 N.E.2d 947 (Ind.Ct.App. 2001).

593. /t/. at 950.

594. /^. at 950-51.

595. Id.

596. /fl?. at953.

597. 746 N.E.2d 993 (Ind.Ct.App. 2001).

598. /£/. at 999-1000.

599. 644 N.E.2d 118, 123 (Ind. 1994).

600. Dg«//c/i, 746N.E.2datl000.

601. /(i. at 1000.

602. See, e.g., Conseco Fin. Servicing Corp. v. Old Nat' I Bank, 754 N.E.2d 997 (Ind. App.

2001); Hoosier Ins. Co. v. Audiology Found, of Am., 745 N.E.2d 300, 306 (Ind. Ct. App. 2001).



1224 INDIANA LAW REVIEW [Vol. 35:1 157

X. Tort Claims Act

In IndianaDepartment ofTransportation v. Shelly& Sands, Inc. ,^^ an action
in which a contractor sued the Department of Transportation on theories of
constructive fraud and estoppel, the court ofappeals held that such claims, when
grounded in tortious conduct, are still subject to the notice requirements of the

Tort Claims Act.*^

Porter v. Fort Wayne Community Schools^^ involved a collision between a
car and a school bus. On the advice of the school district's insurance adjuster,
the driver's lawyer sent a letter to the defendant that included detailed

information about the accident, fairly inferred that a lawsuit was contemplated,
but did not formally state an intent to sue.^ The trial court granted summary
judgment for failure to provide notice under the ITCA. The court of appeals
reversed, concluding that the letter substantially complied with the notice

requirements.^^ In so holding, the court noted that compliance with the Act is

a preliminary procedural issue that must be resolved prior to trial.
^'

III. Indiana's New JURY Rules

The "Juries for the 21st Century" project has culminated in the approval of
new Indiana Jury Rules by the Indiana Supreme Court.^^ It was undertaken
jointly by the Citizens Commission for the Future of Indiana Courts ("CCFC")
and the Judicial Administration Committee of the Judicial Conference (both

collectively referred to as the "Commission")^'^ to promote a number of goals.
Among these were to make all rules affecting juries accessible in one place, to
increase public understanding ofthe role ofjurors in the trial process, to expand

jury service, to diversify the jury pool, to increase respect for jurors, and to

protectjuror privacy and safety.^" The new rules take effect on January 1 , 2003

.

The Indiana Jury Rules introduce new matters and preserve features of
current practice.^'^ Many ofthe Commission's recommendations became rules,
though not all. The Commission felt strongly that virtually no exemptions from
jury service should be granted. Instead, a process ofdeferral should be utilized

when undue hardship, extreme inconvenience, or public necessity would support

603. 756N.E.2d 1063 (Ind.Ct.App. 2001).

604. Mat 1077.
605. 743 N.E.2cl 341 (Ind. Ct. App. 2001).

606. /^. at 342-43.

607. Mat345.

608. Id at 344.

609. Press Release, The Indiana Supreme Court Adopts Most Rules Proposed by Coalition of

Citizens and Judges [hereinafter CCFC Press Release], copy on file with the Indiana Law Review.
See also Reports^ supra note 2.

610. See Reports, supra note 2, at \.

611. See CCFC Press Release, supra note 609, at 1-2.
612. /^. atl.



2002] CIVIL PROCEDURE 1225

a delay in a citizen's participation.^'^ The Indiana Jury Rules strictly limit

exemptions from service to those specifically enumerated by statute. However,

the Indiana Supreme Court felt that it did not have the power to eliminate the

substantive right not to serve accorded to some citizens by the legislature.^"* As
a compromise, where a specific exemption does not apply and burden is alleged

to justify nonparticipation, rather than completely excusing a potential juror,

service will be deferred.^'^

Innovative rules to educate the jury on its role and to increase its

understanding ofthe processes and substantive issues unfolding during trial will

affect trial practice.^'^ While these changes might improve functioning, they also

allocate more responsibility to the trial judge and might alter the order ofclassic
procedures such as the giving of final instructions. Juror understanding and

efficiency could be being bought at the expense of the trial lawyer's ability to

control the presentation of his or her case. For instance, upon welcoming the

panel, the trial judge must now immediately introduce thejury to the case.^'^ The
introduction must include a description ofthe nature ofthe matter and applicable

standards and burdens of proof, among other things.^*^ At this early stage, and
with the court's consent, the parties are allowed to present "mini" opening

statements.^'^ Carrying forward this same theme, Indiana Jury Rule 20 provides
that the court shall again guide the jury before opening statements by reading

instructions on the issues for trial, burdens ofproof, credibility ofwitnesses and

how to weigh evidence.^^° The trial judge must also inform jurors that they
themselves may seek to ask questions by giving the questions in writing to the
judge.^^' Rule 23 authorizes the judge to issue to jurors a trial book which can

include instructions, witness lists, and copies of all admitted exhibits.^^^ The
Commission also recommended a new chronology for final instructions. It would
have had the trial judge give the instructions prior to closing arguments to

provide jurors with a framework for the arguments."^ The Indiana Supreme
Court did not mandate this sequence, but instead left it to the discretion of the

trial judge.^^* According to the Commission, the purpose of the repeated

guidance ofthese rules is to increasejury understanding: "Repetition ofcomplex
legal issues, such as standards ofproof, are [sic] expected to assistjurors to learn

613. Compare Reports^ supra note 2, at 6, 34-37, 65-66, w/Y/? IND. JURY R. 6 (effective Jan.

1,2003).

614. See CCFC Press Release, supra note 609, at 1.
615. iND. Jury R. 7 (effective Jan. 1, 2003).

616. See Reports, supra noXt 2^ ?XA9'55.

617. iND. Jury R. 14 (effective Jan. 1,2003).

618. Id.

619. Id.

620. iND. Jury R. 20 (effective Jan. 1, 2003).

621. Id

622. iND. JURY R. 23 (effective Jan. 1 , 2003).

623. See CCFC Press Release, supra note 609, at 2.
624. iND. Jury R. 27 (effective Jan. 1 , 2003).



1226 INDIANA LAW REVIEW [Vol. 35:1157

unfamiliar concepts and apply them during deliberations."^^^

Another important topic and one allied to exemptions and excusals is the

need to diversify the jury pool. Survey results obtained by the Commission^^^

and citizen comments at public hearings around the state showed that Indiana
citizens are deeply concerned that jury panels become more demographically
representative, not just in terms of race, but also in terms of vocation, life

experience, and economic background."^ To achieve this, the Indiana Jury Rules
direct that the jury pool be derived notjust from voter registration lists, but also

from lists of utility customers, property taxpayers, income tax form mailing lists,
motor vehicle registrations and drivers' licenses, as well as city and telephone
directories."*

The Commission recognized that the practice of peremptory challenges
undermines jury diversity, but could not agree on a solution to the problem."^

Instead, it recommended that the court require documentation of juror
disqualification, exemptions and deferrals,^^° and that the process of jury

selection be recorded, including sidebar conferences,^^' so that a study could be

made. The court enacted these suggestions in Indiana Jury Rules 8 and 12.^^^ It
is interesting to note that in Ashahraner v. Bowers^^^^ ']ust decided in 2001, the
court insisted on strict adherence to the BatsorP^ doctrine, which is designed to

reduce peremptory challenges motivated by racial bias.

On the issues ofjury respect, privacy, and safety, a number of changes have
been instituted. According to the Commission, respect forjurors is increased by

Rule 4, which requires a minimum oftwo weeks notice ofpotential service; Rule
9, which limits service to one day or one trial; Rule 7, which allows deferrals for

service whose timing works a hardship on the citizen (e.g., farmers in the
growing season; accountants at tax time); and Rule 3, which prevents bystanders

from being conscripted forjury service.^^^ Issues ofjuror privacy and safety can

coalesce. Rule 10 provides that personal information obtained about jurors be

kept confidential, unless discussed in open court."^ To reduce hostility to the
jury. Rule 30 now requires that the verdict be read aloud by thejudge, rather than
the foreperson.^^^

625. ^ee CCFC Press Release, 5wpra note 609, at 2.
626. See Reports, supra note 2, at 26-3 1, 37-41

.

627. 5ee CCFC Press Release, 5M/7ra note 609, at 2.
628. IND. Jury R. 2 (effective Jan. 1 , 2003).

629. See Reports, supra noXt 2, diX'il'AX.

630. See CCFC Press Release, supra note 609, at 2.
631. Id

632. iND. JuryR. 8, 12 (effective Jan. 1, 2003).

633. 753 N.E.2d 662 (Ind. 2001). ^ee^i/pra Part I.A.4.

634. 476 U.S. 79 (1986).

635. See Reports, supra note 2, at 30; CCFC Press Release, supra note 609, at 4.
636. IND. Jury R. 10 (effective Jan. 1, 2003).

637. iND. Jury R. 30 (effective Jan. 1 , 2003).



2002] CIVIL PROCEDURE 1227

IV. Other Indiana Rule Changes

On April 1, 2002, a series of changes to the Indiana Trial Rules became
effective. The most important of these involves Trial Rule 3 and parallels the
Indiana Supreme Court's decision in Ray-Hayes,^^^ which required tender ofthe
summons to the clerk of the court to commence an action. Now the rule
expressly provides that a civil action is not begun unless the complaint is filed

along with "payment of the prescribed filing fee or filing an order waiving the

filing fee, and, where service ofprocess is required, by furnishing to the clerk as

many copies of the complaint and summons as are necessary."^^^ This change
makes it clear that a litigant can no longer toll the statutes of limitations while,
at the same time, delaying tender of the summons to the clerk of the court.
Where practitioners initiate an action at the last moment, failure to tender the
summons until after the statute has run will be fatal. Trial Rule 4(B) has also
been amended to conform to the changes in Rule 3 and remove any ambiguity as
to the required chronology

.^^

In response to changing technology. Rule 5(E), which defines "filing with the

court," allows electronic filings not just by facsimile, but by all forms of

electronic transmission. This is consistent with Indiana's recent adoption ofthe

Uniform Electronic Transactions Act,^' which contains provisions designed to

encourage electronic records for governmental entities.^^ Recognizing the heavy

use ofexpress delivery services by attorneys, new Rule 5(E)(4) allows filing with
the clerk by use of "any third-party commercial carrier" so long as service is to

take place within three calendar days.^^ Renumbered Rule 5(E)(5) makes third-
party commercial carrier filing effective on deposit with the carrier. However,

if any method of filing with the clerk other than personal delivery is employed,
parties must retain proof of filing.*^

Like the changes to Rule 3, amendments to Trial Rule 1 5(C) will impact the
ability ofparties to meet the statute of limitations. Previously, when a new party
was to be added by amending a pleading, that amendment would not relate back
to the date ofcommencement unless, within the limitations period, the new party
both received notice ofthe lawsuit so as not to be prejudiced, and was or should
have been aware that he or she was mistakenly omitted from the action.^'^^ Now
these requirements must be met within 120 days of "commencement of the
action."^^

638. 753 N.E.2d 662 (Ind. 2001).

639. Ind. Trial R. 3 (amended 2001).

640. Ind. Trial R. 4(B) (amended 2001).

641. Ind. Code § 26-2-8 (1998 & Supp. 2001).
642. Id.

643. Ind. Trial R. 5(E)(4) (amended 2001).

644. Ind. Trial R. 5(E)(5) (amended 2001).

645 Ind. Trial R. 15(C) (amended 2001).

646. Id.



1228 INDIANA LAW REVIEW [Vol. 35:1 157

Last year in OldIndiana Ltd. Liability Co. v. Montana,^^ the court ofappeals
strictly construed the language of Rule 35 on mental and physical exams to
require all examinations thereunder to be performed by a licensed physician.^"**

This interpretation prevented important categories of professionals, such as

psychologists, physical therapists, vocational specialists, and the like, from

eligibility to conduct court-ordered examinations. Amended Rule 35 now
specifies that a court may order an examination by any "suitably licensed or
certified examiner."^'

Trial Rule 53.1 imposes time limits on trial courts for ruling on motions.^^^

It has been amended to better accommodate the effects of alternative dispute
resolution ("ADR") on the chronology of cases. Now, the time from the point
when a matter is referred to ADR until the ADR report is submitted is excluded
for purposes of computing the time when a judge must rule on a motion."'

As the previous discussion ofSholes v. Sholes^^^ shows, Indiana Trial Rule
60.5 is a unique provision that affords courts a procedure for mandating the

expenditure of public funds for the operation of the court or court-related

activities."^ The rule specifies that when a court seeks to mandate funds, an
order to show cause why the appropriation should not be made shall issue and a
bench trial should be undertaken, presided over by a specialjudge.""* Previously,

the Indiana Supreme Court was to appoint such a judge from a panel ofjudges
and formerjudges maintained by the court."^ Now, Rule 60.5 has been amended
to dispense with the panel."^ Under the previous version of the rule, any
determination that expenditure offunds should occurwas automatically reviewed
in the Indiana Supreme Court, unless the government entity waived review within

two days after entry ofthe decree. The time for waiver is now extended to a full
thirty days."^

Trial Rule 75 on venue has been amended to refer generally to "actions," not
"causes" or "proceedings," and to impose the duty ofpaying the costs associating

with transferring an action for improper venue within twenty days of the order

of transfer."* If this payment is not timely made, the action must be dismissed

(though without prejudice) and attorneys' fees and costs must be awarded.

Subdivision (E) of the Rule has also been changed to cross-refer to new
Appellate Rule 14(A)(8) on interlocutory appeals.

647. 732 N.E.2d 179 (Ind. Ct. App. 2000).

648. /rf. at 186-87.

649. Ind. TRIAL R. 35 (amended 2001).

650. Ind. Trial R. 53.1.

651. Ind. Trial R. 53.1(B) (amended 2001).

652. 760 N.E.2d 156 (Ind. 2001).

653. See supra Part I.A.3.

654. Ind. Trial R. 60.5.

655. Id.

656. Ind. Trial R. 60.5 (amended 2001).

657. Id.

658. Ind. Trial R. 75(1)(2) (amended 2001).



2002] CIVIL PROCEDURE 1229

Finally, Rule 79 governing the appointment of special judges in conjunction

with provisions such as Rule 60.5 has been amended to allow a judge who has
granted a change of venue to serve as a special judge in the same matter in its

new location. This is conditioned on agreement of the parties and the sending
and receivingjudges ofthe respective counties.^^^ Subdivision (K) has also been

changed to specifically include special judges appointed pursuant to Indiana

Code section 34-13-5-4 on public lawsuits.^^^ Part (P) has been modified to
provide a special fee for senior judges who serve as special judges and the last
sentence ofthat section, mandating that their payment be determined by the fee

schedule ofthe Director ofthe Division of State Court Administration, has been

deleted.""'

Effective January 1 , 2002 are revisions to Tax Court Rules 1 through 9, and
1 6 through 20."" These changes are in response to the new Indiana Board ofTax
Review, established in 2001 by Indiana Code section 6-1.5-2-1 and provide
procedures for appeal in state tax matters, among other things.""^ In addition, a
new form, entitled "Verified Petition for Judicial Review of a Final
Determination ofthe Indiana Board ofTax Review" has been added. While state
tax court procedure is beyond the scope of this Article, tax practitioners should

take care to familiarize themselves with the rule amendments and their focus on
the requirement of exhausting administrative remedies. This is found in the

constant references to the "final determinations" oftaxing authorities in the new
rules.

Changes to three Indiana Administrative Rules will become effective on

various dates. Rule 5 governing seniorjudges has been amended to afford them

state insurance benefits and entitlements, effective January 1, 2002.""^

Administrative Rule 8 immediately institutes a new type designation for the case
numbering system affecting civil plenary matters—^"PL" for all cases filed after
January 1, 2002, not "CP."""^ In conformity with the concern for juror privacy

and safety expressed in the reports ofthe Commission, Administrative Rule 9 has
been amended so that, effective January I, 2003, personal information about

i jurors and prospective jurors that is not disclosed in open court will be kept
confidential from public dissemination.""" Finally, pursuant to Appellate Rule

30, the Indiana Supreme Court has promulgated technical standards for digital
& transcripts to be used on appeal.""^ Among these standards is the requirement
s that all eligible documents be converted into the Adobe Portable Document

659. IND. Trial R. 79(J)(1) (amended 2001).

660. iND. Trial R.79(K) (amended 2001).

66 1

.

iND. Trial R. 79(P) (amended 200
1
).

662. See http://www.in.gov/judiciary/research/amend02/tax.pfd (last visited May 21, 2002).
663. Id.

664. iND. Admin. R. 5 (amended 2001).

665. iND. Admin. R. 8.

666. iND. Admin. R. 9(L) (amended 200 1 ; amendment effective 2003).

667. http://www.in.gov/judiciary/research/amend02/digital.pfd.



1230 INDIANA LAW REVIEW [Vol. 35:1 157

Format by the court reporter for transmission to the court of appeals.^^* Civil
practitioners should also review changes to the Rules for Small Claims Court,^^'

the Rules of Judicial Conduct,*^^ and the Rules of Evidence.^^'

V. Federal Practice

The year 2001 proved a particularly discouraging one for the plaintiffs bar
insofar as federal practice was concerned. The U.S. Supreme Court decided a
number of cases that reduce the incentives for taking civil litigation or make
access to court trials more difficult. Both Congress and the federal rulemakers
seem intent on restricting state class actions by federalizing them using minimal
diversity or erecting obstacles to class action status or attorney compensation.

The changes to the Federal Rules of Civil Procedure ("FRCP") for this
rulemaking cycle were less extensive than in 2000, although proposed rule

changes in the pipeline are controversial. What follows is a briefreview ofsome
of the developments affecting civil practice in the federal courts.

A. Procedural Legislation

1. Resident Aliens and the Diversity Statute.—The Federal Court
Improvements Act of2001^^^ would repeal the provision of28 U.S.C. § 1332 that

deems a resident alien a citizen of the state of her/his permanent residence and
replace it with a rule that prohibits federal jurisdiction for disputes involving

such persons.

2. Multiparty, Multiforum Litigation.—In March 2001, the U.S. House of
Representatives passed the Multidistrict, Multiparty, Multiforum Trial

Jurisdiction Act of2001 .^^^ It permits federal jurisdiction on minimal diversity

in mass tort cases where at least twenty-five persons have died or been injured

and each plaintiff claims damages in excess of $150,000.^^^ However, it also
mandates that federal courts abstain from exerting this jurisdiction where a
substantial portion of plaintiffs and primary defendants are from the same state.
Likewise, that state's law will govern the conflict. It also legislatively overrules

Lexecon, Inc. v. Milberg Weiss BershadHynes & Lerach,^^^ which had allowed
a judge who had received a case pursuant to 28 U.S.C. § 1407 (multidistrict
litigation) to retain the case for trial

.^^^

3. Class Actions.—Several bills are pending in Congress that affect class
actions and parallel attempts from the FRCP rulemaking process ("FRCP") to

668. Id.

669. Available at http://www.in.gov/judiciary/research/rules.html.

670. Id.

671. Id

672. H.R. 2522, 107th Cong. (2001).

673. H.R. 860, 107th Cong. (2001).

674. H.R. 860, 107th Cong., § 3 (2001).

675. 523 U.S. 26(1998).

676. H.R. 860, 107th Cong., § 2 (2001).



2002] CIVIL PROCEDURE 1231

rein in state class actions.^^^ S. 1 7 1 2^^* expands the provisions of H.R. 234 1 , the

Class Action Fairness Act of 2001.^^^ The House bill, if passed, would provide

federal subject matter jurisdiction over state-based class actions where there is

minimal diversity among class members, there are at least 100 such members,
and the amount in controversy exceeds $2 million. H.R. 2341 also regulates the

adequacy ofclass notice and the attorneys' fees that are recoverable. In addition,

it heightens pleading requirements for such classes and stays discovery until

motions to dismiss can be heard. S. 1712 goes beyond this proposed legislation

because it allows removal to federal court of matters not formally designated as

class actions in two situations, any public interest lawsuit not filed by a state

attorney general and claiming monetary relief and any claim for monetary relief

tried jointly with 1 00 or more persons.

4. Television in the Courtroom.—In the fall of 2001, the Senate Judiciary
Committee approved the Sunshine in the Courtroom Act, S. 986. It gives federal
judges the discretion to allow television broadcasting of proceedings, even

though the Judicial Conference of the United States has been opposed to this

move.^*°

5. Electronic Commimications.—^The E-Govemment Act of 2001, S.803,
would require all federal courts to establish a website where detailed information
about cases and other matters would be available.^*'

6. Government Lawyers.—S. 1437, introduced by Senator Leahy and
entitled the Professional Standards for Government Attorneys Act of 200 1

,

would require federal rulemakers to regulate the conduct ofgovernment lawyers,

especially insofar as their ability to contact represented persons is concerned. It

would also authorize government lawyers to act in "sting" operations.
^^^

7. Terrorism.—S. 1 75 1 , the Terrorism Risk Insurance Act of 200 1 , would
use the multidistrict litigation approach to put all matters stemming from a
terrorist incident in one federal forum. It would also preclude punitive damages

for actions under the act.^*^ A similar approach is taken in the Terrorism Risk
Protection Act, H.R. 321 0.^*^ Finally, the Air Transportation Safety and System

Stabilization Act of200 1 ,^'^ introduced in response to the September 1 1 disaster,

would limit the liability ofairlines, but provide new causes ofaction to litigants.

B. U.S. Supreme Court and Seventh Circuit Decisions

In 2001 , the decision that will most affect civil practice is one that spans the

677. 5ee /w/ra text accompanying notes 741-43.

678. S. 1712, 107th Cong. (2001).

679. H.R. 2341, 107th Cong. (2001).

680. S. 986, 107th Cong. (2001). H.R. 2519 is the companion House bill.

681. S. 803, 107th Cong. (2001).

682. S. 1437, 107th Cong. (2001).

683. S. 1751, 107th Cong. (2001).

684. H.R. 3210, 107th Cong. (2001).

685. H.R. 2926, 107th Cong. (2001).



1232 INDIANA LAW REVIEW [Vol. 35:1157

categories of substance and procedure. Cooper Industries, Inc. v. Leatherman
Tool Group, Inc.^^^ introduces a stunning reconception of the nature of a jury's
determination ofpunitive damages. In so doing it revolutionizes the standard of

appellate review to be applied. Normally, the award of punitive damages is a
matter within the purview ofthe states, because the ability to recover monies in

a civil matter to punish a defendant's bad behavior is a creature ofcommon law.
This makes it difficult to "constitutionalize" a jury's assessment of punitive
damages so as to reach the federal forum. Nonetheless, the U.S. Supreme Court
has decided a number of significant punitive damages cases.^*^ One ofthe most
controversial questions about those decisions is whether they involve substantive

due process, or whether they are procedural due process decisions.^^* This is

because the fundamental question inherent in all of them is this: When is the
amount of punitive damages simply too large to be constitutional, regardless of
any other factor?

To add to the controversy, issues ofpunitive damages have historically been
treated as questions of fact within the sound province of the jury to answer,

curbed by the ability of courts to review an assessment for excessiveness under
a deferential standard.^*^ In Cooper, the Supreme Court has struck at the heart
of this classic allocation of functions between judge and jury, and trial and

reviewing courts, by holding that punitive damage assessments are not matters
of fact, but are moral evaluations.^^^ Thus, an appellate court is now authorized
to use a de novo standard ofreview in scrutinizing them. Previously, when a trial
judge left the jury's verdict intact, the reviewing court was required to use an

abuse of discretion standard. Now, the court of appeals is free to make its own
determination ofthe jury's results as if it were deciding a question of law. This

view runs counter to a long history ofallocating punitive damage issues tojuries,
in part from the founders' concern that government can oppress a defendant by

fining in a civil context, almost as easily as by pursuing criminal prosecution.

Thejury was to be a bulwark against political retaliation worked by this device.
Moreover, the Court's own opinions on the right to jury trial have treated as
especially jury-worthy any remedy that involves a penalty or fine.^^' And, the

classic factors a jury must consider for fixing punitive damages in most
jurisdictions plainly involve issues of fact—for example, given the defendant's
financial condition, what amount of damages is effective to deter?

By expressing its analysis in terms of the standard of review, the Court has
neatly finessed many of the difficult substantive issues raised by punitive

686. 532 U.S. 424(2001).

687. See, e.g., BMV ofN. Am. Inc. v. Gore, 5 1 7 U.S. 559 (1995) (holding award of$4 million
in punitive damages as unconstitutionally "excessive").

688. See, e.g., id.

689. Cooper, 532 U.S. at 437.

690. One of the great debates in philosophy is whether there are any objectively verifiable

moral "facts" or whether when one makes an ethical judgment, one is merely expressing an opinion

or an emotion.

691. See, e.g., Tull v. United States, 481 U.S. 412 (1987).



2002] CIVIL PROCEDURE 1233

damages. However, as Justice Ginsberg suggested in Gasperini v. Centerfor
Humanities,^^^ making it easier for appellate courts to undo jury verdicts can

function as an indirect cap on damages.^^^ There is also the practical issue of

how to define and demarcate this new category of "moral" assessment. For all
these reasons, Cooper is a troubling opinion. Its new conceptual framework
could have a far-reaching impact not just on jury determinations of punitive

damages, but also on any jury verdict that requires judgments about intangible

items such as pain and suffering and emotional distress.

Buckhannon Board and Care Home, Inc. v. West Virginia Department of
Health and Human Resources^^^ is another decision that significantly affects
plaintiffs. It rejects the "catalyst ofreform"^^^ theory for shifting fees under two

fee-shifting statutes, the Fair Housing Act and the Americans with Disabilities

Act ("ADA").^^ One of the difficult questions raised by an award of fees is
whether a litigant is a "prevailing party" for purposes of fee shifting. In many
instances, especially when the defendant is goaded to change its behavior by
litigation, but a full merits determination is not made, "prevailing party" status

is not clear. Nine of the circuit courts had authorized an award of fees on the

theory that, if the litigation provoked significant change, it was a catalyst of
reform and should count as a win for the plaintiff. The Court ignored this
consensus and interpreted the Fair Housing Act and the ADA to prohibit fee
shifting for this reason. This case could have implications for any fee-shifting

statute.

Not only in Cooper and Buckhannon, but in a variety ofother cases the U.S.
Supreme Court has affected civil practice. Circuit City Stores, Inc. v. Adams ^^^

will also negatively treat plaintiffs, for it holds that the Federal Arbitration Act

applies to all employment agreements, except those oftransportation workers.^^^
This carries forward the Court's trend of vigorously applying the Act, but it

discounts the policy argument that it is inappropriate to force arbitration when
civil rights and other policy questions are raised in an employment context.^^
Continuing the same general theme, restricting plaintiff lawsuits, the Supreme
Court concluded in a 5-4 decision that there is no private right of action to

enforce regulations promulgated under Title VI of the Civil Rights Act dealing
with the disparate impact of state action.^°^ This was the question in Alexander

692. 518 U.S. 415(1996).

693. /f/. at 425 (Ginsburg, J., dissenting). /

694. 532 U.S. 598(2001).

695. See Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978) (holding fees appropriate when

plaintiffs lawsuit is causally linked to defendant's change in behavior and there is some legal basis

for plaintiffs claim).

696. Buckhannon Bd. & Care Home, Inc., 532 U.S. 598 at 605.
697. 532 U.S. 105(2001). This decision overrules Cra/? v. CampbellSoup Co,, 177F.3d 1083

(9th Cir. 1999).

698. See, e.g.. Craft, Ml ^MziXmA.
699. See also Green Tree Fin. Corp. v. Randolph, 531 U.S. 79 (2001).

700. 42 U.S.C. § 2000d-l (1999); 28 CFR § 42.104(b)(2) (1999). See also 49 CFR §



1234 INDIANA LAW REVIEW [Vol. 35:1 157

V. SandovalJ^^ which challenged the State of Alabama's requirement that one
show proficiency in English in order to obtain a driver's license.

In Becker v. Montgomery^^^ by a unanimous opinion, the Court held that a
party's failure to sign a notice ofappeal is not a fatal defect. This is because the

substance ofthe notice made it clear who the parties involved in the appeal were,
so that absence of a signature was a technical problem that did not go to the
reviewing court's appellate jurisdiction. Thomas v. Chicago Park Districf^^
emanated from the Seventh Circuit Court ofAppeals and raised significant First
Amendment questions about parade permits. It held that because Chicago's
requirements do not constitute a content-based regulation, access to prompt
judicial review under the procedural requirement of Freedman v. Marylancf^^
governing prior restraints did not apply

.^°^

Finally, important cases pending before the Court include Mathias v.

Worldcom Technologies, IncJ^ and Verizon Maryland, Inc. v. Public Service
Commission ofMaryland.''^^ These represent a circuit split over the appealability
of state commissions' actions regarding interconnection agreements. Among
other questions, they address whether prospective relief against such

commissions for violation of the Telecommunications Act of 1996 are

permissible under the £x/?(a[r/^ Young doctrine,^^^ In Devlin v. Scardelletti,^^ the
Court will determine whether a nonintervening class member has standing to
appeal, even after the motion to intervene was properly denied. Dusenbery v.
UnitedStates,^^^ orally argued in late October and decided in January 2002, held

that the proper standard for notifying a prisoner of a civil forfeiture proceeding

is designated by the "reasonable under the circumstances test" of Mullane v.

Central Hanover Bank & Trust Co.^" not the more stringent test ofMathews v.
Eldridge^^^ for notice and opportunity to be heard where provisional remedies are

sought.^'^ Another pending casejust decided in 2002 is Raygor v. Regents ofthe

University ofMinnesotaJ^^ It holds that the Eleventh Amendment is violated by
the thirty-day statute of limitations tolling provision ofthe federal supplemental

21.5(b)(2) (2000).

701. 532 U.S. 275 (2001).

702. 532 U.S. 757(2001).

703. 122 S.Ct. 755 (2001).

704. 380 U.S. 51(1965).

705. Thomas, 122 S. Ct. at 778-80.

706. U.S. No. 00-878, reported below as Illinois Bell Telephone Co. v. Worldcom

Technologies. Inc., 179 F.3d 566 (7th Cir. 1999), cert, granted, 532 U.S. 903 (2001).

707. U.S. No. 00-1531.

708. 209 U.S. 123(1908).

709. U.S. No. 01-417.

710. 534 U.S. 161(2002).

711. 339 U.S. 306(1950).

712. 424 U.S. 319(1976).

713. DM5e«6erv> 534 U.S. at 669.

714. 122 S.Ct. 999 (2002).



2002] CIVIL PROCEDURE 1 23 5

jurisdiction statute, § 28 U.S.C. 1367. This occurs where a state-based claim

filed against a nonconsenting state in federal court is subsequently dismissed on

Eleventh Amendment grounds and then refiling is sought in state court.^'^
The U.S. Court ofAppeals for the Seventh Circuit has decided a number of

cases important to civil practice matters. A cluster ofthem were concerned with
arbitration agreements. For instance, in George Watts & Son v. Tiffany & Co.,^^^
the Seventh Circuit Court of Appeals held that the "manifest disregard of the

law" principle is not available to justify court intervention into arbitration on the

issue of attorneys' fees, because, although a Wisconsin statute authorized fees,

it did not prevent parties from agreeing to bear their own legal expenses and there
was no agreement to the contrary between them.^/^ In IDSLife Insurance Co. v.
RoyalAlliance Ass '«^'* the Seventh Circuit stated that an arbitration award need

not be correct or reasonable to be binding, continuing thie theme ofGeorge Watts

& Son. However, in Penn v. Ryan 's Family Steak Houses, Inc.,^^^ a case from
Indiana, the court concluded that an arbitration agreement that allowed the

employer to modify its terms without notice and included other one-sided

provisions lacked contractual mutuality and was unenforceable.
Other opinions from the Seventh Circuit of interest to civil practitioners are

Downey v. State Farm Fire & Casualty Co?^^ (no federal subject matter
jurisdiction in an action against a private insurer that issued federal flood

insurance; consent judgment preserves the right to appeal where expressly

reserved); Ester v. Principf^^ (when an agency decides the merits ofa complaint

without addressing the question of timeliness of exhaustion of remedies, it has

waived the defense in subsequent lawsuits); Thompson v. Altheimer & Gray ^^^
(abuse of discretion in racial discrimination case not to dismiss juror for cause

when juror could not assure court that, given her background, she could be
impartial); Hetreed v. Allstate Insurance Co.^^^ (when appealing decision on
merits litigant must file notice ofappeal covering award of costs to appeal such

award); Indiana Civil Liberties Union v. O 'Bannon^^^ (preliminary injunction
against erection of stone monument with the Ten Commandments on statehouse
grounds proper because likelihood of success on merits showing violation of

Establishment Clause); Isaacs v. Sprint Corp.^^^ (no conditional grant of class

certification); United Air Lines, Inc. v. International Ass 'n of Machinist &

715. /^. at 1004-05.

716. 248 F.3d 577 (7th Cir. 2001).

717. IdatSSl.

718. 266 F.3d 645 (7th Cir. 2001).

719. 269 F.3d 753 (7th Cir. 2001).

720. 276 F.3d 243 (7th Cir. 2001).

721. 250 F.3d 1058 (7th Cir. 2001).

722. 248 F.3d 621 (7th Cir. 2001).

723. 135 F.3d 1 155 (7th Cir. 2001) (unpublished opinion).

724. 259 F.3d 766 (7th Cir. 2001).

725. 261 F.3d 679 (7th Cir. 2001).



1236 INDIANA LAW REVIEW [Vol. 35:1 157

Aerospace Workers^^^ (federal court had jurisdiction to issue injunction against
labor union despiteNorris-LaGuardiaAct because union actively promoted work
slowdown); Kalan v. City ofSi Francis^^^ (where parties stipulate to specifically
identified magistrate judge, different magistrate judge cannot preside without

their consent); Lockwood International B, V. v. Volm Bag CoP^ (paying a
plaintiff to replead a complaint does not eliminate the liability ofthe insurer to

defend its insured); National Organization for Women, Inc. v. Scheidler^^^
(private party may obtain civil injunctive relief under the Racketeer Influenced
and Corrupt Organizations Act ("RICO"), in disagreement with Ninth Circuit on
same issue); Szabo v. Bridgeport Machines, IncP^ (when ruling on class
certification, a court does not have to accept the allegations in plaintiffs

complaint as true); In re Synthroid Marketing Litigation^^^ (gives detailed

guidance on notice of appeal for would-be intervenors who oppose class
settlement; requires trial court to estimate market rates to set fees; concludes

incentive awards not available where party does not become class representative
until after success is likely).

C Rules Changes
1. The Federal Rules ofCivil Procedure CFRCP ")

.

—Proposed changes to
the FRCP became effective December 1, 2001. Rule 5(b)(2)(D) allows for
electronic service and service through court facilities.'" To conform with this
change. Rule 6(e) extends the time for response to documents so served for three

days.'" Rule 77(d) provides the clerk of the court with more alternatives for
notifying parties of entry of an order or judgment, including facsimile and

computer transmission. Rule 65 adds a new subdivision (f) to govern copyright
impoundment.'^"* Finally, Rule 81(a)(1) clarifies that the FRCP apply in
bankruptcy proceedings, mental health proceedings, and copyright

proceedings.'^^

In September 2001 , the Judicial Conference Committee on Rules ofPractice
and Procedure approved changes previously proposed for comment. New Rule
7.1 would be added to require disclosures that will assist judges in avoiding
conflicts of interest. Among other things, it would require the disclosure of
corporate parties' financial interests, including the disclosure of parent

726. 243 F.3d 349 (7th Cir. 2001).

727. 274 F.3d 1150 (7th Cir. 2001).

728. 273 F.3d 741 (7th Cir. 2001).

729. 267 F.3d 687 (7th Cir. 2001).

730. 249 F.3d 672 (7th Cir. 2001).

731. 264 F.3d 712 (7th Cir. 2001).

732. Fed. R. Civ. Proc. 5(b)(2)(D), available at http://www.house.gov/judiciary/civil2001

.

pfd.

733. Fed. R. Civ. Proc. 6(e), available at http://www.house.gov/judiciary/civil2001.pfd.

734. Fed. R. Civ. Proc. 65, available at http://www.house.gov/judiciary/civil2001.pfd.

735. Fed. R. Civ. Proc. 8 1 (a)(1), available at http://www.house.gov/judiciary/civil200 1 .pfd.



2002] CIVIL PROCEDURE 1237

corporations and stock interests of at least ten percent held by public

corporations.'^^ Rule 58 will be changed to clarify when the time runs for filing
an appeal.'^' Section (b) thereof specifically designates the time of entry of

judgment and includes a provision that keys off of the date when a separate
document setting forth the court's action must be filed under proposed Rule
58(a)(1). That subsection makes it clear that, except for orders for disposing of
motions forjudgment under Rule 50(b), to amend or make findings offact under
Rule 52(b), for attorneys' fees under Rule54(d)(2)(B), for new trial or to alter or
amend the judgment under Rule 59, and for Rule 60 relief, a// judgments, even
amended ones, must be entered on a separate document.'^^ The rule also makes
it clear entry ofjudgment may not be delayed or the time for appeal enlarged due
to motion to tax costs or for fees and conforms the procedure for ruling on

motion for attorneys' fees to Appellate Rule 4. To be consistent with these
changes. Rule 54 would also be amended to delete the requirement of service
before the submission of a motion for attorneys' fees and to delete the

requirement of a separate judgment therefor.'^^ Rule 81(a)(2) would also be
amended to remove a conflict between the FRCP and the Rules Governing 2254
Cases and Rules Governing 2255 Proceedings. Finally, certain amendments to
Supplemental Rule C on Admiralty are proposed that would govern
interrogatories in civil forfeiture proceedings and other matters.

The advisory committee has also published for comment proposed changes
to Rules 23, 51, 53, 54(dX2), and 71(a). The proposed changes to Rule 23 are
significant. They are designed to address the general concerns for fairness of
class procedure for unnamed class members raised by the U.S. Supreme Court's
opinion in Anchem Products Inc. v. Windsor?^ In addition, like the proposed
class action legislation pending in Congress, they include measures that will

affect the ability of parties to bring class actions in state forums. Two
particularly controversial topics are measures to enjoin overlapping class actions

filed in multiple state courts and appointment and reimbursement of class

counsel.'^' Among other changes are those requiring notice to class members at
the certification stage, appeals by nonintervening class members, and the

preclusive effects of class certification and settlement.

2. Seventh Circuit and Local Rule Matters,—Effective December 1 , 200 1

,

the Seventh Circuit amended a number of its Rules—^22.2(a) (disclosure
statements of prior proceedings and other matters), 26. 1 (disclosure statements

736. Proposed Fed. R. Civ. Pro. 7.1(a)(lXA).

737. See Memorandum from Paul V. Niemeyer, Chair, Advisory Committee on the Federal

Rules of Civil Procedure, to Honorable Anthony J. Scircia, Standing Committee on Rules of

Practice and Procedure, at 91 (May 2000) (on file with the Indiana Law Review).

738. Id.

739. Id

740. 521 U.S. 59 (1997). See also BNA LEGAL WEEK, May 8, 2001, at. 2684.
74 1

.

See Civil Rules Committee Hears Testimony on Proposals to Amend Class Action Rule,
BNA Law Week, Dec. 1 8, 200 1 , at 2366; Senators Offer New Class Action Legislation Similar to
Bill Approved Earlier by Committee, BNA LAW WEEK, Dec. 1 8, 200 1 , at 2367.



1238 INDIANA LAW REVIEW [Vol. 35:1 157

of identity of nongovernmental attorneys), 31(e) (digital briefs), 32(a) (brief lie

flat rule), and 34(h) (argument by law students)^*^ It also included in its Internal

Operating Procedures a provision concerning the sealing of records. It requires

a court order for records to be sealed, unless a stature provides to the contrary.
^"^^

Notice has also been given by the Administrative Office ofthe U.S. Courts that

interest rates on judgments in the federal courts have been changed pursuant to

statute, effective on all judgments entered on or after December 21, 2000.^*^

On January 2, 2002, a series of changes to the Local Rules for the U.S.
District Court for the Northern District ofIndiana became effective^*^ and a new
fee schedule was introduced.^"*^ The U.S. District Court for the Southern District
of Indiana has also effectuated changes to certain of its Local Rules, effective

January 1, 2002.^"*^ In addition, all cases filed on or after November 16, 2001
must submit a Case Management Plan, unless otherwise exempted, that complies
with the Instructions for Preparing Case Management Plans promulgated by the
Southern District pursuant to its Local Rule 1 6. 1 .^^*

742. 5ee http://www.ca7.uscourts.gov/webnote.htm (last visited Mar. 15,2002).

743. See http://www.ca7.uscourts.gov/Rules/rules.htm (last visited Mar. 15, 2002).

744. Current rates are available at http://www.federaIreserve.gOv/releases/H 1 5/Current.

745. See Local Rules 5.1(c), 1(0, Kg). 1(h), 8.2, 16.1(b), 16.3, 24.1(a), 1(b), 1(c), 47.3,

72.1(d), 1(e), 1(0, 1(g), l(i), 10), 72,2(a), 79.1, 83.7(a), 7(c), 200.1 and Rule III of the Rules of

Disciplinary Enforcement, available at http://www.innd.uscourts.gov/localrules.html.

746. See http://www.innd.uscourts.gov/feeinfo.html.

747. 5ee Local Rules 4.6, 16.1(b), 1(c), 24.1, 72.1, 72.3,76.1, 81.2, 83.5, ava/Va^/e a/ http://

www.insd.uscourts.gov/pub_main.htm.

748. See http://www.insd.uscourts.gov/whats_new_main.htm.