Indiana Law Review


Recent Developments in Indiana Civil Procedure

Michael A. Dorelli*
Daniel K. Burke**

During the survey period,
1

the Indiana Supreme Court and the Indiana Court
ofAppeals rendered numerous decisions addressing principles of state procedural
law and providing helpful interpretations ofthe Indiana Rules ofTrial Procedure.

I. Indiana Supreme Court Decisions

A. Personal Jurisdiction Reduced to One-Step Analysis

In 2003, Indiana Trial Rule ("Rule") 4.4(A)—Indiana's "long arm"
jurisdiction statute—was amended to include the following language: "In
addition, a court of this state may exercise jurisdiction on any basis not
inconsistent with the Constitutions of this state or the United States."

2
In

LinkAmerica Corp. v. Albert,
3
the Indiana Supreme Court clarified that the 2003

amendment to Rule 4.4(A), despite its retention of other specific, enumerated
acts satisfying long-armjurisdiction, collapses the personaljurisdictional inquiry

into a single step: "The 2003 amendment to [Rule 4.4(A)] was intended to, and
does, reduce analysis of personal jurisdiction to the issue of whether the exercise

of personal jurisdiction is consistent with the Federal Due Process Clause."4

B. Preferred Venue

Rule 75 governs venue requirements in Indiana.
5
Rule 75(A) contains ten

subsections, each setting forth criteria for establishing "preferred" venue.
6 A

complaint can be filed in any county in Indiana.
7
However, if the complaint is

not filed in a preferred venue, the court is required to transfer the case to a

preferred venue upon the proper request of a party.
8
Rule 75(A) "does not create

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

—

Bloomington; J.D., 1998, magna cum laude, Indiana University School of Law—Indianapolis.
** Partner, Hoover Hull LLP, Indianapolis, Indiana, B.S., 1994, Indiana University

—

Bloomington; J.D., 1999, cum laude, Southern Methodist University School of Law. The views

expressed herein are solely those of the authors.

1

.

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

decisions during the survey period—October 1 , 2006, through September 30, 2007—as well as
amendments to the Indiana Rules of Trial Procedure, which were ordered by the Indiana Supreme

Court during the survey period.

2. Ind. Trial R. 4.4(A).

3. 857 N.E.2d 961 (Ind. 2006).

4. Id. at 967. The LinkAmerica decision is discussed in greater detail in last year's civil

procedure survey. See Michael A. Dorelli, Recent Developments in Indiana Civil Procedure, 40

Ind. L. Rev. 705, 705-07 (2007).

5. Ind. Trial R. 75.

6. Ind. Trial R. 75(A).

7. Id.

8. Id.



884 INDIANA LAW REVIEW [Vol. 41 :883

a priority among the subsections establishing preferred venue."9 Rather, if a
complaint "is filed in a county of preferred venue, then the trial court has no
authority to transfer the case based solely on preferred venue in one or more
other counties."

10

I. Location of Defendant Organization's "Registered Office."—Rule
75(A)(4) establishes preferred venue in "the county where ... the principal office

of a defendant organization is located."
11

Rule 75(A)(10) applies when the case
is not subject to the requirements of subsections (1) through (9), or "if all the

defendants are nonresident individuals or nonresident organizations without a

principal office in the state."
12

In American Family Insurance Co., the court held that "the term 'principal
office' as used in subsections (4) and (10) of Trial Rule 75(A) refers to a

domestic or foreign corporation's registered office in Indiana."
13

American

Family, as a Spencer County resident's subrogee, sued Ford in Marion County

on negligence and breach of warranty claims. Ford, a Delaware corporation with

its headquarters in Michigan, filed a motion to transfer venue to Spencer

County.
14

Ford has no offices in Indiana, but maintains a registered agent—CT
Corporation—in Marion County. 15 The trial court granted Ford's motion to
transfer venue, and the Indiana Court of Appeals reversed, holding that "Marion

County was a preferred venue under [Rule] 75(A)(10)."
16

On transfer, based on a review of the history of Indiana's Business
Corporation Act, the Indiana Supreme Court clarified that "subsection (4) of
Trial Rule 75 establishes preferred venue in the county of the defendant

organization' s registered office."
17
Ford had designated CT Corporation, located

in Marion County, as its registered agent; therefore, the court concluded that

Marion County was a preferred venue under subsection (4) of Rule 75.
18

The court in American Family Insurance also clarified that subsection (10)
of Rule 75(A)—preferred venue in the county of plaintiff's "residence" or
"office"—applies in two independent circumstances: "(1) when none of the
preceding nine subsections establish preferred venue or (2) when all of the

9. Am. Family Ins. Co. v. Ford Motor Co. , 857 N.E.2d 97 1 , 974 (Ind. 2006) (citing Bostic

v. House of James, Inc., 784 N.E.2d 509, 511 (Ind. Ct. App. 2003)).

10. Id. (citing Meridian Mut. Ins. Co. v. Harter, 671 N.E.2d 861, 863 (Ind. 1996)).

11. Ind. Trial R. 75(A)(4).

12. Ind. Trial R. 75(A)(10).

13. Am. Family Ins., 857 N.E.2d at 972.

14. Mat 972-73.
15. Id. at 972.

16. Id. at 973 (citing Am. Family Ins. Co. v. Ford Motor Co., 848 N.E.2d 319 (Ind. Ct. App.),

vacated, 857 N.E.2d 971 (Ind. 2006)).

17. Id. at 975.

18. Id.; cf. Coffman v. Olson & Co., 872 N.E.2d 145, 148-49 (Ind. Ct. App. 2007)
(distinguishing American Family Insurance and holding that Rule 75(A)(4) established preferred

venue in the county in which defendant maintained a "nonprincipal office," because the office was

not merely a "mailing address").



2008] CIVIL PROCEDURE 885

defendants are nonresident individuals or nonresident organizations without a

'principal office in the state.'"
19

The court explained that "because Ford has a
principal office in [this] state [i.e., via CT Corporation, its registered agent],
subsection (4) applies and ... so neither circumstance triggering the applicability

of subsection (10) is present."
20

2. Location ofDamaged Chattels.—Rule 75(A)(2) provides, inter alia, that
preferred venue lies in the county where "the chattels or some part thereof are
regularly located or kept, if the complaint includes a claim for injuries thereto or

relating to . . . such chattels."
21

Rule 75(A)(3) provides for preferred venue in

"the county where the accident or collision occurred, if the complaint includes
a claim for injuries relating to the operation of a motor vehicle."

22

In R & D Transport, Inc. v. A.H.
,

23
the court held that the "damage caused to

chattels in an automobile accident is subsumed by [Rule 75(A)(3)], not
authorized under [Rule 75(A)(2)] as a way for a plaintiff to be able to sue in the
plaintiffs county of residence."

24 The plaintiff, a Porter County resident, filed
suit in Porter County against a Hendricks County resident and a corporation with

its principle place of business in Hendricks County. The complaint alleged
personal, physical, and psychological injuries resulting from a vehicular accident,

including damage, to plaintiffs "orthotic devices, clothing, and other chattels

regularly located in Porter County."
25 The accident occurred in Dearborn

County.
26 The defendants moved to transfer venue to either Hendricks or

Dearborn County. The trial court denied the motion, and the Indiana Court of
Appeals affirmed.

27

The Indiana Supreme Court reversed, expressly disapproving of the prior
Indiana Court of Appeals' decisions in Swift v. Pirnat

2
* and Halsey v. Smeltzer,

29

in which the courts held that preferred venue lied in the county in which personal

19. Am. Family Ins., 857 N.E.2d at 977.

20. Id. The court in American Family Insurance also addressed the applicable standard of

review on a trial court's order on a motion to transfer venue. Id. at 973. The court explained that

"factual findings linked to a ruling on a motion under Rule 75(A) are reviewed under a clearly

erroneous standard and rulings of law are reviewed de novo." Id. (abrogating Monroe Guar. Ins.

Co. v. Berrier, 827 N.E.2d 158, 159 (Ind. Ct. App. 2005)). According to the court, however, "[i]f

factual determinations are based on a paper record, they are also reviewed de novo." Id. (citing

Equicor Dev., Inc. v. Westfield-Washington Twp. Plan Comm'n, 758 N.E.2d 34, 37 (Ind. 2001)).

21. Ind. Trial R. 75(A)(2).

22. Ind. Trial R. 75(A)(3).

23. 859 N.E.2d 332 (Ind. 2006).

24. Id. at 337.

25. Id. at 333.

26. Id.

27. Id.

28. 828 N.E.2d 444 (Ind. Ct. App. 2005), disapproved byR&D Transport, Inc. , 859 N.E.2d
336-37.

29. 722 N.E.2d 87 1 (Ind. Ct. App. 2000), disapproved by R&D Transport, Inc. , 859 N.E.2d
336-37.



886 INDIANA LAW REVIEW [Vol. 41:883

property allegedly damaged in automobile accidents was "regularly located,"
under Rule 75(A)(2).

30 The supreme court stated that "[t]he language and
structure of [Rule] 75(A) dictate that these cases were wrongly decided."

31 The
court in R & D Transport identified three reasons for this conclusion:

First, the focus of [Rule] 75(A)(2) is the location of the property or

activity that gives rise to a claim. . .

.

Second, consistent with the rule's stress on the location of the
property or activity giving rise to a claim, we have long had special
venue rules for motor vehicle accidents. . .

.

Third, we note the rule's language about the relationship between
plaintiffs and venue. Subsection (10) of the rule allows for the

plaintiff s home county to be a preferred venue if "the case is not subject
to the requirements of subsections (1) through (9) of [Rule 75(A)] or if

all the defendants are nonresident individuals or nonresident

organizations without a principal office in the state."
32

The court explained that "[t]he text of subsection (10) suggests that, in most
cases, the plaintiff's home county has secondary status when it comes to
preferred venue."

33 The court concluded that the "decisions of the Court of
Appeals in [Swift], [Halsey], and their companions are contrary to the intent of

[Rule] 75(A) and are disapproved" and held that Porter County was not a county
of preferred venue.

34

C. Relation Back ofAmendments to Pleadings

In Porter County Sheriff Department v. Guzorek,
35

the Indiana Supreme

Court held that "an amended complaint adding the sheriffs' department as a
defendant relate[d] back to the date of the original complaint [filed against the

officer in his individual capacity] and [was] therefore not barred by the statute

of limitations if the original action was timely filed."36 In Guzorek, a county

sheriffs' department officer had rear-ended plaintiff's vehicle. Nineteen days

30. R&D Transport, 859 N.E.2d at 334 (citing Swift, 828 N.E.2d at 448-49; Halsey, 722
N.E.2d at 873-74).

31. Id.

32. Id. at 335-36 (quoting Ind. Trial R. 75(A)(10)).

33. Id. at 336.

34. Id. at 336-37. The court reasoned that "[m]ost people 'regularly ke[ep]' their car and

other chattels that travel with them in their cars in their home counties." Id. at 336. The court

"decline[d] to allow [Rule] 75(A)(2) to serve as the means to bypass the clear intent of the rule's

overall text." Id.

35. 857 N.E.2d 363 (Ind. 2006).

36. Id. at 366.



2008] CIVIL PROCEDURE 887

later, plaintiff sent a Tort Claims Act notice to various government agencies.
37

Five days before expiration of the two-year negligence statute of limitations,

plaintiff filed a complaint naming the officer as the only defendant.
38

The complaint did not mention the sheriffs' department or the officer's
employment with the department. The officer moved for summary judgment
claiming "no personal liability."

39
While the motion for summaryjudgment was

pending, plaintiff moved for leave to amend the complaint to add the sheriffs'
department as a defendant. The trial court granted summary judgment in favor
of the individual officer, the trial court then granted leave to amend to add the
department,

40
the department moved for summary judgment, on statute of

limitations grounds, and the trial court denied the motion (finding that the

amendment related back to the date of original filing for statute of limitations
purposes).

41 The trial court certified the summary judgment denial for
interlocutory appeal, the Indiana Court of Appeals reversed (directing that

summary judgment be granted in favor of the department), and the Indiana
Supreme Court granted transfer.

42

Following a description of the evolution of Rule 15(C) and its federal

counterpart,
43

the court in Guzorek paraphrased the relevant provision of the

Rule:

[I]n order for an amendment of a complaint to relate back under Trial
Rule 15(C), no later than 120 days after the complaint is filed a

defendant must receive notice of the pendency of the action and be

aware that, but for a mistake, that defendant would have been named in
the original complaint.

44

Applying Rule 15(C) to the case, the court in Guzorek first analyzed the "notice"

requirement of the Rule, explaining that:

Notice of the lawsuit may be actual notice or constructive notice,
which may be inferred based on either the identity of interest between
the old and new parties or the fact that they share attorneys. An identity
of interest may permit notice to be imputed to the added party when the

37. Id.

38. Id.

39. Id.

40. The department was represented by the same counsel who had represented the officer.

Id.

41. Id.

42. Id.

43. Id. at 367-68. The court in Guzorek recognized that Rule 15(C) was modeled after

Federal Rule 15(C) and that "[subsequent amendments to the Indiana rule have conformed to

changes in the federal rule." Id. at 367. Thus, the court concluded that it was "appropriate to

consider federal authorities as guidelines in interpreting and applying the Indiana rule." Id. (citing

Honda Motor Co. v. Parks, 485 N.E.2d 644, 649 (Ind. Ct. App. 1985)).

44. Mat 368.



888 INDIANA LAW REVIEW [Vol. 41 :883

original and added party "are so closely related in business or other

activities that it is fair to presume that the added part[y] learned of the
institution of the action shortly after it was commenced." Similarly,
notice may be imputed based on shared legal counsel if it is reasonable
to infer that the attorney for the initial party will have communicated to
the added party that he, she or it may be joined in the action.45

The court found that notice was "fairly inferred,"46 because the department was
required to defend the officer and both the officer and the department were

represented by the same counsel.
47

The court next analyzed the "knowledge of mistake" requirement—an issue
that sparked an interesting debate between the majority, authored by Justice

Boehm, and the dissent, penned by Chief Justice Shepard. Per the majority, the
"mistake" requirement is satisfied "in instances involving both mistakes of fact

and mistakes of law."
48

According to the majority:

"The 'mistake' condition does not isolate a specific type or form of error

in identifying parties, but rather is concerned fundamentally with the

new party's awareness that failure to join it was error rather than
deliberate strategy." Contrary to the suggestion of the dissent, [Rule

15(C)] is not limited to misnomers: "In view of the history of the

application of Rule 15(C), the phrase 'a mistake concerning the identity

of the proper party' should clearly not be read to limit its usefulness to

cases of misnomer." Specifically, a mistake of applicable law can

constitute a "mistake" as that term is used in Trial Rule 15(C).
49

The majority agreed with the dissent that "where there is a basis for the plaintiff
to assert liability against the party named in the complaint, and there is no reason
for another party to believe that the plaintiff did anything other than make a
deliberate choice between potential defendants, the mistake requirement is not

met."
50 The court further explained that "[i]t is not a reasonable assumption that

an opponent's legal strategy was to sue a party who was provided immunity by
statute and to omit the party designated as the proper defendant."

51 The court

45. Id. at 369 (citations omitted). The court also found that the tort claim notice sent by the

plaintiff to the sheriffs' department did not satisfy Rule 15(C)'s notice requirement, because it

informed the department of the accident, but it "did not advise that a lawsuit had been filed." Id.

46. Id. at 371.

47. Id. at 369 (stating that "[e]ither of these may be sufficient to find notice to [the

department] under some circumstances, but in concert they are conclusive under the facts of this

case").

48. Id. at 371.

49. Id. (quoting In re Integrated Res. Real Estate Ltd. P'ship Sec. Litig., 815 F. Supp. 620,

644 (S.D.N.Y. 1993)).

50. Id. at 372.

51. Id. The court elaborated, stating that "[t]he dissent characterizes the [plaintiff s] decision

to sue the individual officer rather than the sheriffs department as a legal or tactical choice." Id.



2008] CIVIL PROCEDURE 889

therefore concluded that "[s]uch a mistake of applicable law—suing the agency
that is immune instead of the secretary who is not—is precisely the situation that
gave rise to [the federal rule upon which Indiana Rule 15(C) is patterned]."

52

The court affirmed the trial court's ruling denying the department's summary
judgment motion based on the relation-back of the plaintiff's amendment.

53

As noted by the majority's opinion, Chief Justice Shepard offered a spirited
dissent on the "mistake of identity" issue, opining that the majority's decision "is
against the weight of federal and Indiana authority."

54 The Chief Justice
explained that:

Justice Boehm's opinion . . . swims upstream against both federal
and Indiana authority about the meaning of "mistake of identity" by
sweeping within Rule 15(C) any mistake, including legal bad calls about

who among multiple possible defendants might be liable. His opinion
acknowledges the principle that where a party makes a "deliberate
choice between potential defendants, the mistake requirement is not

met," but does not apply this principle to the facts before us. Justice

Boehm reasons that the [plaintiff] could not have deliberately planned
"to sue an immune party who was provided immunity by statute and to
omit the party designated as the proper defendant." In effect, this

focuses on the idea that the [plaintiff] made a legal mistake that could be
remedied by Rule 15(C). Under such reasoning, virtually everyone who
chooses to name a given defendant and later finds the choice an unhappy
one could lay legitimate claim to "mistake of identity."

55

In his dissent, ChiefJustice Shepard explained that "the inquiry under Rule 15(C)

does not focus on whether the claimant's lawyer botched the job, but rather

whether the party sought to be added after the statute of limitations 'knew or

should have known that but for a mistake concerning the identity of the proper
party' he, she, or it would have been sued in the first place."

56 The dissent
concluded with an implicit warning: "Rule 15 [(C)] was amended to allow

relation back where a plaintiff's honest error results in a mistake of identity.

Rule 15 [(C)] was not intended to save parties from the legal or tactical choices

The majority, however, distinguished the cases cited in Chief Justice Shepard's dissent, stating that

"[t]he cases the dissent cites are markedly different from the present one [in that] . . . [n]one

involves a suit against a clearly immune party and all involve a rational decision to sue one party

and not another." Id.

52. Mat 373.
53. Id.

54. Id. (Shepard, C.J. dissenting) ("I see no reason why Indiana should be an outlier on this

question, and the majority opinion does not undertake to provide a reason for placing us against the

mainstream.").

55. Id. at 374.

56. Id. ("On this point, the majority opinion deals with the facts summarily and gets them

wrong.").



890 INDIANA LAW REVIEW [Vol. 41 :883

made by their lawyers
"57

D. Interpleader

In PorterDevelopment, LLC v. First National Bank ofValparaiso,
5
* the court

interpreted and applied Indiana' s Adverse Claim Interpleader Statute ("Statute"),
which provides that "[i]f a depository financial institution pays . . . funds to the

court, the depository financial institution is entitled to recover and collect the

costs and expenses, including attorney's fees, incurred ... in the interpleader

action."
59

Specifically, a depository bank filed an interpleader complaint against

a depositor and the depositor's secured creditor to resolve competing claims to

a certificate ofdeposit.
60 The depositor counterclaimed against the bank, alleging

abuse of process, and breaches of contract, trust, and fiduciary duty. Following

cross-motions for summary judgment, the trial court ruled that interpleader was
proper, but denied the bank' s claim for attorney fees under the Statute, explaining

that the Statute "reads 'is entitled,' not 'shall.'"
61

Cross-appeals followed, and

the court of appeals affirmed.

On transfer, the Indiana Supreme Court disagreed with the court of appeals
and reversed and remanded the matter for further proceedings.

62
Through

statutory interpretation and a review of case law in other jurisdictions, the court

in Porter agreed with and adopted the "prevailing approach" regarding whether

and how attorney fees are recoverable by an interpleading depository institution,
explaining as follows:

[T]he prevailing approach is to allow the interpleading stakeholder [i.e.,

the depository institution] to recover its attorney fees directly from the

deposited fund before it is distributed to the prevailing claimant and, as

between competing claimants, to require those claimants whose claims

57. Id. at 375. Subsequently, Justice Boehm denied the department's petition for rehearing,

reiterating that "the 'mistake' requirement of [Rule 15(C)] is satisfied when a plaintiff mistakenly

sues an immune party if the proper party knows of the suit and knows that an error has been made."

Porter Co. Sheriff Dep't v. Gozorek, 862 N.E.2d 254, 255 (Ind. 2007) (stating "[t]hat is one of the

prototypical situations [Federal Rule 15(c)] was initially designed to address"). According to

Justice Boehm, "[w]e see no reason to impose a penalty on a plaintiff for a mistake of law that has

gained no advantage for the plaintiff and caused no disadvantage to the defendant." Id. at 256. In

his dissent, Chief Justice Shepard argued that "[t]he petition for rehearing in this case further

demonstrates the extent to which this Court's interpretation of Trial Rule 15(c)'s 'mistake of

identity' requirement to allow relation back takes us outside the mainstream of authority." Id.

(Shepard, C.J., dissenting). The dissent, on rehearing, argued that "mistakes of liability are not the

type of 'mistakes' contemplated by Rule 15(C)." Id. at 257 (citing Hall v. Norfolk S. Ry. Co., 469

F.3d 590, 596-97 (7th Cir. 2006)).

58. 866 N.E.2d 775 (Ind. 2007).

59. Ind. Code § 28-9-5-3 (2004) (emphasis added).

60. Porter, 866 N.E.2d at 776-77.

61. Id. 2X111.

62. Id. at 780-81.



2008] CIVIL PROCEDURE 891

to the fund are rejected to replenish the fund or reimburse the prevailing

claimant.
63

However, the court recognized that this approach may be inappropriate in certain
"unusual circumstances, such as when the interpleading stakeholder incurs
additional attorney fees and costs beyond the reasonable and ordinary expenses
associated with the prosecution of an interpleader proceeding."

64

The court in Porter concluded that the Statute is mandatory, extending to "all
reasonable costs and expenses incurred by a depository financial institution with
respect to the interpleader action or proceeding."

65 The court clarified, however,
that "such right to recovery includes only those costs and expenses that are

expended in bringing a proper interpleader, or successfully defending its use of

interpleader."
66

If deposited funds are insufficient, the court "may impose such
costs and expenses upon unsuccessful claimants whose claims led to the
interpleader and deposit of funds with the court."

67

E. "Lazy" Judge

Rule 53.2 provides that "[w]henever a cause . . . has been tried to the court

and taken under advisement by the judge, and the judge fails to determine any

issue of law or fact within ninety (90) days," upon the request of an interested

party, the Clerk ofthe court must withdraw submission of all pending issues from

the judge and seek appointment of a special judge by the Indiana Supreme

Court.
68 An exception to the mandatory withdrawal of all issues by the Clerk

applies where "[t]he parties who have appeared or their counsel stipulate or agree
on record that the time limitation for decision set forth in this rule shall not

apply."
69

In State ex rel. Hoffman v. Allen Circuit Court,
10

the court held as a matter

of first impression that "a trial court may not avoid its obligation to make timely
decisions by issuing ... an order presuming agreement to extend the time absent

objection from the parties."
71

In Hoffman, the trial court conducted a bench trial

on issues of child custody, parenting time, and child support.
72 The trial court

ordered proposed findings of fact and conclusions of law, and instructed in its

order that "[t]he time within which the Court is to rule on the issues shall not

begin to run until said Findings of Fact and Conclusions of Law are filed unless

63. Id. at 780.

64. Id.

65. Id.

66. Id.

67. Id.

68. Ind. Trial R. 53.2(A).

69. Ind. Trial R. 53.2(B)(1).

70. 868 N.E.2d 470 (Ind. 2007).

71. Id. at 472.

72. Id.



892 INDIANA LAW REVIEW [Vol. 41 :883

either party files an objection . . . within five (5) days."
73

Neither party objected

within the five day period. Instead, the parties agreed to successive extensions

of their deadlines for the filing of findings and conclusions.
74

On the ninety-first day after the conclusion of the trial, counsel for the father
filed his Rule 53.2 praecipe, seeking removal of the case from the judge and

appointment of a special judge.
75

Four days later, the trial court entered a final

judgment, granting "legal custody to the mother, establishing] parenting time for

the father, and ordering] child support."
76

In a subsequent entry, the Clerk

provided "notice" of her decision not to withdraw the case in response to the

father' s Rule 53.2 praecipe, "explaining that the father' s failure 'to object and the

multiple requests for extension of time may be deemed to be an agreement as to
the Court's delay.'"

77 The father filed a petition for writ of mandamus,
challenging the Clerk's failure to withdraw the case from the trial court.

78

Despite denying the petition for writ of mandamus, the Indiana Supreme
Court admonished similar "presumptions" of agreement to extend a trial court's

timeline for ruling, explaining as follows:

[W]e take this opportunity to disapprove future use of devices such as
the order presuming agreement absent objection to extend a court's time

for ruling. To provide guidance to the bench and bar, we hold that a trial
court may not avoid its obligation to make timely decisions by issuing
such an order presuming agreement to extend the time absent objection

from the parties. The exception provided in the rule means exactly what
it says. It applies only where the parties "stipulate or agree on record

that the time limitation for decision set forth in this rule shall not apply."

The failure of parties to object to a judicial declaration presuming their
agreement does not satisfy this requirement that they stipulate or agree

on the record.
79

The court continued, explaining that "[t]he ninety-day requirement for judicial
action operates irrespective of whether proposed findings and conclusions are

contemplated."
80
According to the Indiana Supreme Court, "[rjeceiving proposed

findings of fact and conclusions of law from the respective parties may be a
judicial convenience, but it is not a necessity to a court's decision-making

function."
81

73. Id. at 471-72.

74. Id. at 472.

75. Id.

76. Id.

11. Id.

78. Id. at 471 (indicating that writ was denied on May 15, 2007, and that an "explanatory

opinion" would follow).

79. Id. at 472-73 (citation omitted).

80. Id. at 473.

81. Id.



2008] CIVIL PROCEDURE 893

F. Relieffrom Judgment Due to "Misconduct" During Discovery and Trial

In Outback Steakhouse ofFlorida, Inc. v. Markley*
1
the court held that the

plaintiffs' failure to identify a critical witness in response to defendants'

discovery, "in concert with other acts and omissions attributable to plaintiffs'

counsel, constituted misconduct requiring a new trial."83 Plaintiffs were severely
injured when the motorcycle they were riding was struck by the car of an
intoxicated man who had been drinking at Outback Steakhouse. Plaintiffs sued
Outback alleging various alcohol related statutory and common law violations,
including a claim that Outback "knowingly served alcohol to a visibly intoxicated
person."

84

Outback served interrogatories on the plaintiffs, requesting that plaintiffs
identify all facts supporting their contention that Outback provided alcoholic
beverages to the man with knowledge that he was visibly intoxicated.85 In
response to the interrogatory, plaintiffs identified several individuals who were
at Outback the night of the accident, but they failed to identify a waitress who
had previously informed plaintiffs' counsel that the man was visibly intoxicated
when she served him the night of the accident.86 Outback later deposed the
waitress. At her deposition, she testified that the man was not visibly intoxicated
when she served him.87

During the trial, the waitress contacted counsel for plaintiffs and visited their

office, informing counsel that she lied during her deposition and that she planned

to testify at trial that the man was visibly intoxicated when she served him.88

Plaintiffs' counsel did not inform the trial court or Outback of the meeting, nor

did counsel seek to supplement the interrogatory answer.
89 When trial resumed,

plaintiffs called the waitress as a witness and she testified that the man "was
visibly intoxicated . .

.
, that she continued to serve him after she realized he was

intoxicated, and that she felt guilty and responsible for the collision."
90 The jury

returned a verdict in the amount of $60 million—$39 million of which was
allocated to Outback.

91
Outback filed a motion to correct errors and a motion for

new trial under Rule 60(B), characterized as being on the basis of "fraud,
misrepresentation, or misconduct."

92 The trial court denied all post-trial relief,

82. 856 N.E.2d 65 (Ind. 2006).

83. Id. at 70.

84. Id.

85. Id.

86. Id.

87. Id. at 71.

88. Id.

89. Id.

90. Id. at 7 1-72. Outback impeached the waitress with her deposition on cross-examination,

but did not ask that her testimony be stricken or that a continuance be granted. Id. at 72.

91. Id.

92. Id. Outback conducted post-trial discovery pursuant to Rule 60(D), including a post-trial

deposition of the waitress during which she revealed that she had informed plaintiffs' counsel



894 INDIANA LAW REVIEW [Vol. 41 :883

and the Indiana Court of Appeals affirmed.
93

Using federal case law for interpretive guidance, the court in Outback

Steakhouse determined that, for purposes of Rule 60(B)(3), "misconduct"

includes "both negligent and intentional violations of Indiana's discovery

rules."
94 The court explained that, before a new trial will be granted due to

"misconduct" under Rule 60(B)(3), a movant must demonstrate that the
misconduct "prevented the movant from fully and fairly presenting the movant's
case at trial."

95
In addition, the moving party must demonstrate "a meritorious

claim or defense."
96 The court explained that the "meritorious defense"

requirement "merely requires a prima facie showing of a meritorious defense,

that is, a showing that 'will prevail until contradicted and overcome by other
evidence.'"

97
In summary, the court in Outback Steakhouse concluded that for

Outback to prevail under Rule 60(B)(3), it must demonstrate:

(1) the plaintiffs' discovery responses amounted to either fraud,

negligent misrepresentation, or misconduct; (2) the fraud,

misrepresentation, or misconduct prevented Outback from fully and

fairly presenting its case at trial; and (3) Outback has made a prima facie
showing of a meritorious defense as to liability or that the damages were

excessive.

The court in Outback Steakhouse found that the plaintiffs' failure to disclose
the waitress "as a person with knowledge of the relevant facts was a negligent if

not intentional breach of its discovery obligations."
99 The court first "readily

conclude[d] that the initial omission [of the waitress's expected testimony from

the plaintiffs' original interrogatory answer] was a violation of [Rules] 26 and 33
and therefore 'misconduct' within the meaning of Rule 60(B)(3)."

100 The court
then explained that even if the plaintiffs' attorneys had a doubt about whether the

waitress needed to be disclosed in response to the interrogatory, that doubt

should have been "resolved by the obligation to construe an interrogatory

fairly."
101

According to the court, "[interrogatories should not 'be interpreted

with excessive rigidity or technicality, but a rule ofreason should be applied.'"
102

before trial that she knew the man was intoxicated when she served him. Id.

93. Id.

94. Id. at 73.

95. Id.

96. Id.

97. Id. (quoting Smith v. Johnson, 711 N.E.2d 1259, 1265 (Ind. 1999)).

98. Id. at 74.

99. Id.

100. Id. at 77.

101. Id. at 75.

102. Id. at 75-76 (quoting Pilling v. Gen. Motors Inc., 45 F.R.D. 366, 369 (D. Utah 1968));

see also Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003) (cited in Outback Steakhouse, 856

N.E.2d at 76, for the proposition that "incomplete or evasive responses to interrogatories support

dismissal of an action").



2008] CIVIL PROCEDURE 895

Next, the court found "misconduct" in the plaintiffs' failure to supplement

their interrogatory answer once they decided to call the waitress at trial.
103 The

court explained that the duty to supplement discovery responses under Rule

26(E) continues even after trial has begun.
104

In addition, the court rejected the

plaintiffs' arguments that the waitress' s expected testimony constituted protected

attorney work product
105

and that Outback waived its objection to the plaintiffs'

failure to supplement their discovery responses by cross-examining the waitress

instead ofmoving for a continuance. 106 The court reasoned, in part, that Outback
had no reason to move for a continuance when the waitress was called, because
it had no reason to believe she would not adhere to her prior deposition

• 107
testimony.

The court also concluded that the plaintiffs' counsel's closing argument

—

during which he claimed Outback's counsel was disingenuous during opening
statements when he represented that the waitress would testify that the man was
not intoxicated—amounted to "misconduct" in light of the discovery
violations.

108 The court proceeded to find that the misconduct prejudiced
Outback's right to a fair trial—due in large part to plaintiffs' counsel's closing
argument attack on Outback's counsel—and that Outback presented a
"meritorious defense" sufficient to warrant relief under Rule 60(B)(3).

109

G. Arbitration

In Natare Corp. v. D.S.I., Duraplastec Systems, Inc.,
110

the court held that an

arbitrator did not exceed his authority in denying a prevailing party's attorney

fees, despite a contract provision providing for an award ofreasonable fees to the

prevailing party.
1 1

1

In connection with the settlement oftwo lawsuits, Natare and

D.S.I, agreed not to disseminate disparaging information about each other. The

parties agreed to arbitrate any disputes "arising out of or relating to" their

settlement agreement, and they agreed that if a party breached the agreement, the

non-breaching party would be entitled to $5000 in liquidated damages, actual

103. Outback Steakhouse, 856 N.E.2d at 77.

104. Id. at 77-78 (stating that "it may be reasonable and appropriate to modify the method of

supplementing a discovery response if new information is discovered on the eve ofor during trial").

105. Id. at 78 (noting that the work product privilege exists to protect "mental impressions or

legal theories" of the attorneys or clients and that the waitress's statement did not reveal such

impressions but were "simply potential evidence that enjoys no privilege").

106. Id. at 78-79.

107. Id. at 79.

108. Mat 79-80.
109. Id. at 80-82. The court in Outback Steakhouse recognized "that the effect of ordering a

new trial is once again to make the [plaintiffs] innocent victims, this time at the hands of their own

lawyers." Id. at 81. But, the court explained, the plaintiffs "chose their counsel and this series of

missteps by plaintiffs' counsel produced a severely unfair trial." Id. at 81-82.

1 10. 855 N.E.2d 985 (Ind. 2006).

111. Id.



896 INDIANA LAW REVIEW [Vol. 41 :883

damages "if shown," and reasonable attorney fees, costs, and expenses incurred
pursuing the claim.

112

Several years later, Natare claimed D.S.I, breached the non-disparagement

agreement, causing actual damages.
113

After arbitration pursuant to the

settlement agreement, the arbitrator found that D.S.I, breached the agreement, but

that Natare failed to show actual damages. 114 The arbitrator awarded $5000 in
liquidated damages, no actual damages, and no attorney fees or costs. Natare
soughtjudicial review of the arbitrator's decision to award no attorney fees. The
trial court upheld the award, and the Indiana Court of Appeals reversed, holding

that the arbitrator exceeded his authority in failing to award reasonable attorney

fees to Natare as the prevailing party.
115

On transfer, the Indiana Supreme Court quoted the full text of the sections
of Indiana's Uniform Arbitration Act,

116
pursuant to which an arbitration award

may be set aside, and explained that "an arbitration award should not be set aside
unless grounds specified in the Act have been shown, and appellate review of an

arbitration award is limited to the determination of such a showing."
117

Regarding the arbitrator's "authority" to award no fees despite contract language

providing for an award of fees to the prevailing party, the court in Natare

explained as follows:

[T]he arbitrator clearly had the authority not to award attorney fees

under the terms of the settlement agreement if the arbitrator concluded

that the amount of "reasonable attorney fees" to which Natare was
entitled was zero. . .

.

. . . The facts and circumstances of this arbitration clearly point to
the arbitrator having exercised his responsibility to consider whether the

award of any attorney fees was reasonable here. Without indulging in

speculation as to any particular reason or reasons, it is enough to say that

there are a number of plausible explanations for why the arbitrator could
conclude that the reasonable amount ofattorney fees in this circumstance

was zero. 118

In short, the court in Natare held that an arbitrator acts within his authority

if—despite a contract provision providing for an award of reasonable attorney
fees to the prevailing party—he determines that a "reasonable" fee under the

112. Id. at 985-86.

113. /d. at 986.

114. Id.

115. Id.

1 16. Ind. Code §§ 34-57-2-1 to -22 (2004).

117. Natare Corp., 855 N.E.2d at 986.

118. Id. at 987-88.



2008] CIVIL PROCEDURE 897

circumstances is zero.
119

H. Proceedings Supplemental

In Rose v. Mercantile National Bank ofHammond,
120

the Indiana Supreme
Court discussed and evaluated proceedings supplemental generally, as well as
changes of venue or judge, jury trial demands, fraudulent transfer, and "new"
claims asserted in proceedings supplemental.

121 A "[j]udgment creditor pursued
. . . two shareholders of the judgment debtor through a proceeding supplemental
contending fraudulent transfer, then amended the complaint to bring a new
[Crime Victim's Statute] claim, as well."

122

The court in Rose explained that "[w]ith roots in equity, a proceeding
supplemental offers the judgment creditor judicial resources 'for discovering

assets, reaching equitable and other interests] not subject to levy and sale at law

and to set aside fraudulent conveyances.'"
123

The court described the procedure
for bringing and responding to proceedings supplemental, generally, as follows:

A plaintiff may move for a proceeding supplemental in the court where
judgment has been rendered by alleging that the plaintiff sjudgment will

not be satisfied and that the defendant or another party has property that

ought to be applied toward the judgment. And while Trial Rule 69(E)
declares "[n]o further pleadings shall be required," our caselaw teaches

that "when a new issue arises in a proceeding supplemental, responsive
pleadings are required." Nonetheless, even when no new issue arises, a
responsive pleading is still permitted. The court must then allow
discovery and conduct a hearing, after which certain property shall be

"applied towards the judgment."
124

Regarding change of venue orjudge, the court in Rose affirmed "the rule that

third-party defendants in proceedings supplemental may engage the change of
venue provisions in Trial Rule 76."

125 The court explained that "[s]ince
proceedings supplemental are merely the continuation of an original action, the

original parties have already been afforded the chance to move the case to
another court or judge."

126
In Rose, the "third parties" seeking change ofjudge

were the two principles of the original defendant.
127 The court stated that

1 19. Id. The court in Natare also concluded that "the issue of attorney fees was submitted to

the arbitrator and that he clearly understood that it had been as he made a specific finding to that

effect." Id. at 988.

120. 868 N.E.2d 772 (Ind. 2007).

121. Id. at 775-77.

122. Mat 773.
123. Id. at 775 (quoting McCarthy v. McCarthy, 297 N.E.2d 441, 444 (Ind. App. 1973)).

124. Id. (citations omitted).

125. Id. at 776.

126. Id. at 775-76.

127. Id. at 776.



898 INDIANA LAW REVIEW [Vol. 41 :883

"[w]hile they were not parties to the original action in a strict sense, this form

will not prevent us from recognizing the substance."
128

Therefore, the supreme

court affirmed the trial court's denial of the principals' motion for change of

judge.
129

Finally, the court in Rose rejected the plaintiffs attempt to add an Indiana

Crime Victim's Statute claim, stating that such a "claim does not fit the purpose

for proceedings supplemental."
130 The court explained that

allowing a new claim to be tacked on at this stage would be just as
unfitting as opening up any other litigation to add new claims after
judgment. Such an approach to collections would lay the groundwork

for perpetual motion—a far cry from the timely and efficient system of
conflict resolution the nation's judiciary strives to provide.

131

The court concluded that "[proceedings supplemental are appropriate only for
actions to enforce and collect existing judgments, not to establish new ones." 132

II. Indiana Court of Appeals Decisions

A. Statute ofLimitations

1. Discovery Rule and Continuous Representation Doctrine.—In Bambi's
Roofing, Inc. v. Moriarty,

133
the court held that a plaintiff's negligence claim

against an accounting firm was time-barred.
134

Specifically, the court held that

the one-year statute of limitations imposed by the Accountancy Act of 200

1

135

applied to the plaintiffs particular claim.
136 The claim was time-barred despite

Indiana's "discovery rule," and the continuous-representation doctrine—which
the court held as a matter of first impression applied to accounting negligence

claims covered by the Accountancy Act—did not apply under the present
circumstances as a statute of limitations tolling mechanism.

137

In Bambi's Roofing, an accounting firm continuously provided accounting

services to Bambi's from 1982 through 2003. In December 2000, Bambi's hired
an individual as their "in-house accounting officer," at the accounting firm's

128. Id.

1 29. Id. The court in Rose also addressed the propriety of a jury trial demand in a proceeding

supplemental, explaining that "[w]hile juries are disfavored in proceedings supplemental for their

tendency to prolong matters, where the pleadings form issues of fact that a jury could reasonably

decide, the parties may demand a jury trial." Id.

130. Mat 777.
131. Id.

132. Id.

133. 859 N.E.2d 347 (Ind. Ct. App. 2006).

134. Id. at 359.

135. Ind. Code §§ 25-2.1-1-1 to -15-2 (2004 & Supp. 2007).
136. Bambi's Roofing, 859 N.E.2d at 359.

137. Id.



2008] CIVIL PROCEDURE 899

recommendation.
138 One of the accounting firm's accountants trained the

individual, while the firm continued to provide services to Bambi's.
139 On or

before March 14, 2003, Bambi's discovered that the individual had embezzled
more than $76,900. The individual was fired and ultimately convicted and
sentenced.

140 On July 2, 2004, nearly one year and four months after the
embezzlement was discovered, Bambi's filed a complaint against the accounting
firm, generally alleging negligence.

141

After determining that Bambi's claims implicated the one-year statute of

limitations contained in the Accountancy Act,
142

the court in Bambi's Roofing
addressed the statute of limitations accrual date under Indiana' s "discovery rule,"

explaining as follows: "[T]he one-year limitations period is tolled until the date

that the alleged negligence is discovered or should have been discovered by the

exercise of reasonable diligence."
143

The court further noted that, "the discovery
rule does not mandate that plaintiffs know with precision the legal injury that has
been suffered, but merely anticipates that a plaintiff be possessed of sufficient

information to cause him to inquire further in order to determine whether a legal
wrong has occurred."

144
In other words, the court explained, "the discovery rule

only postpones the statute of limitations by belated discovery ofkey facts, not by

delayed discovery of legal theories."
145

Regarding the requirement that a party

exercise "reasonable diligence," the court explained the following:

The exercise of reasonable diligence means simply that an injured party
must act with some promptness where the acts and circumstances of an
injury would put a person of common knowledge and experience on
notice that some right of his has been invaded or that some claim against
another party might exist.

146

The court concluded that "Bambi's had knowledge of pertinent facts that

reasonably put them on notice that some claim might exist against the

[accounting firm] at the moment they discovered [the] embezzlement."
147 The

court explained that at that time, "they necessarily must have been aware that a

138. Mat 350.
139. Id.

140. Id.

141. Id.

142. Id. at 354-55 ("[W]e hold that Bambi's cause in negligence resulted from an agreement

to provide professional accounting services and is therefore governed by the Accountancy's Act

statute of limitations." (citing Ind. Code § 25-2.1-15-1 (2004))).

143. Id. at 355 (citing Crowe, Chizek, & Co. v. Oil Tech., Inc., 771 N.E.2d 1203, 1207 (Ind.
Ct. App. 2002)).

144. Id. at 356 (citing Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind. Ct. App.

2006)).

145. Id. (citing Perryman, 846 N.E.2d at 689).

146. Id. (citing Perryman, 846 N.E.2d at 689).

147. Id.



900 INDIANA LAW REVIEW [Vol. 41 :883

claim might exist against the [accounting firm] ."
148

Explaining that "the law does

not require a smoking gun in order for the statute of limitations to commence,"
the court concluded that, because the claim was filed more than one year after
discovery of the embezzlement, Bambi's claim against the accounting firm was
time-barred.

149

Next, the court in Bambi 's Roofing ruled, as a matter of first impression, that
the "continuous-representation" doctrine applies to accounting negligence claims

covered by the Accountancy Act, as a statute of limitations tolling mechanism. 150

In evaluating the continuous-representation doctrine under the facts before it, the

court clarified that "the continuous representation must be in connection with the

specific matter directly in dispute, and not merely the continuation of a general

professional relationship."
151

According to the court, "the mere recurrence of

professional services does not constitute continuous representation where the

later services performed are not related to the original services."
152 The court

explained the rationale for limiting application of the doctrine to cases in which

the representation is "in the same, specific matter," as follows:

The purpose of the [continuous-representation doctrine] is to give
accountants an opportunity to remedy their errors, establish that there

was not error, or attempt to mitigate the damage caused by their errors,
while still allowing the aggrieved client the right to later bring a

malpractice action, and not to circumvent the statute altogether by

continuously representing the client.
153

The court concluded that the doctrine did not apply to the present case,
because the alleged "continuous" representation did not implicate the stated

purposes of the doctrine.
154

In other words, according to the court, although the

accountants' representation may have been "continuous," the alleged continuous
representation did not give the accountants an opportunity to remedy their errors,

establish that there was no error, or attempt to mitigate the damage caused by
their alleged errors.

155

148. id.

149. Id. But see Brinkman v. Bueter, 856 N.E.2d 1231, 1239-41 (Ind. Ct. App. 2006) (holding

that patient could not reasonably have discovered, and limitations period for her medical

malpractice claims therefore did not begin to run, until she became pregnant again and consulted

with another obstetrician who provided high-risk obstetrical care), vacated, 879 N.E.2d 549 (Ind.

2008).

150. Bambi's Roofing, 859 N.E.2d at 356-57.

151. Id. at 357 (citing Ackerman v. Price Waterhouse, 683 N.Y.S.2d 179, 197 (App. Div.

1998)).

152. Id. (citing Ackerman, 683 N.Y.S.2d at 197).

153. Id. at 358 (citing Burns v. McClinton, 143 P.3d 630, 634-35 (Wash. Ct. App. 2006)).

154. Id. at 359.

155. Id.



2008] CIVIL PROCEDURE 901

2. Contractual Statute of Limitations and Alleged Third-Party
Beneficiary.—In Eckman v. Green, 156 the court of appeals held that a contractual
statute of limitations provision, contained in a modular home contract, did not
apply to bar a claim by the purchasers against a third-party contractor. 157

Acknowledging that a "third party beneficiary may directly enforce a contract,"158

the court explained the following:

[An alleged] third-party beneficiary must show the following: ( 1 ) A clear
intent by the actual parties to the contract to benefit the third party; (2)
A duty imposed on one of the contracting parties in favor of the third
party; and (3) Performance of the contract terms is necessary to render
the third party a direct benefit intended by the parties to the contract.

159

The court in Green concluded that the contractor failed "to meet the first
criterion for establishing status as a third-party beneficiary."

160
According to the

court, the contract "[did] not show clear intent to benefit [the contractor] as [the
contractor was] neither named in the purchase agreement nor [did] the purchase
agreement contain 'provisions which demonstrate an intent to benefit any other

person."'
161

Rather, the court explained, the contract "addresse[d] only the rights

and obligations of the . . . contracting parties."
162

3. Non-Resident Defendant andDue Process.—Indiana Code section 34- 11-
4-1 tolls the statute of limitations when there is no agent for service of process
in the state of Indiana.

163
Rule 4.4(B) provides that Indiana's Secretary of State

is deemed the agent for nonresidents who are subject to the jurisdiction of
Indiana courts pursuant to Rule 4.4(A).

164
Rule 4. 10 sets forth the procedures for

service on the Secretary of State as agent for a nonresident.
165

In Cadle Co. II, Inc. v. Overton,
166

the court held that Rule 4.10, allowing a

summons for a nonresident defendant to be served "constructively" on the
Indiana Secretary of State, did not violate the due process rights of a nonresident

for purposes of the statutory exception to the general rule that the statute of

156. 869 N.E.2d 493 (Ind. Ct. App.), trans, denied, 878 N.E.2d 216 (Ind. 2007).

157. Id. at 496-97.

158. Id. at 496 (citing Mogensen v. Martz, 441 N.E.2d 34, 35 (Ind. Ct. App. 1982)).

159. Id. "[T]he intent to benefit the third party is the controlling factor and may be shown by

specifically naming the third party or by other evidence." Id. (quoting Luhnow v. Horn, 760 N.E.2d

621, 628 (Ind. Ct. App. 2001)).

160. Id.

161. Id. (quoting Horn, 760 N.E.2d at 628).

162. Id. (quoting Horn, 760 N.E.2d at 628).

163. Ind. Code § 34-1 1-4-1 (2004) ("The time during which the defendant is a nonresident

of the state is not computed in any of the periods of limitation except during such time as the

defendant by law maintains in Indiana an agent for service of process or other person who, under

the laws of Indiana, may be served with process as agent for the defendant.").

164. Ind. Trial R. 4.4(B)(2).

165. See Ind. TRIAL R. 4.10.

166. 857 N.E.2d 433 (Ind. Ct. App. 2006), trans, denied, 869 N.E.2d 455 (Ind. 2007).



902 INDIANA LAW REVIEW [Vol. 41 :883

limitations is tolled while a defendant is a nonresident.
167 The court in Overton

affirmed the trial court's grant of summary judgment in favor of the nonresident
defendant. Premised on expiration of the applicable statute of limitations, the
court found that under the circumstances of the case Rule 4.10 does not violate

constitutional due process, even if "actual notice" was not accomplished. 168

B. Service ofProcess: "Substantial Compliance"

In LePore v. Norwest Bank ofIndiana, N.A.,
169

the court held that a plaintiff

"substantially complied" with Rule 4. 1(A)(3) and (B) when plaintiff left a copy
of the summons and complaint at the defendant's residence, but due to an error
in identifying the defendant's correct name, follow-up service by certified mail

was returned undeliverable.
170

Rule 4.1(A)(3) provides for service on an

individual by "'leaving a copy of the summons and complaint at his dwelling
house or usual place of abode.'"

171
Rule 4.1(B) provides that when service is

made under subsection (A)(3), "the person making service also shall send byfirst
class mail, a copy of the summons without the complaint to the last known
address of the person being served."

172 The court explained that "even though
[the plaintiff] did not technically comply with the rules [by attempting follow-up

service by certified mail instead of first class mail], ... an attempt was made to
effectuate service."

173 The court concluded that the plaintiff's actions
"substantially complied" with Rule 4.1(B) and "were reasonably calculated to

inform [the defendant] that an action had been instituted against him."
174

167. Mat 438.
168. Id. at 437-38.

169. 860 N.E.2d 632 (Ind. Ct. App. 2007).

170. Id. at 636.

171

.

Id. at 634 (quoting Ind. Trial R. 4. 1 (A)(3)).

172. Id. (emphasis added) (quoting Ind. Trial R. 4.1(B)).

173. Id. at 636 (distinguishing Barrow v. Pennington, 700 N.E.2d 477 (Ind. Ct. App. 1998),

and Swiggett Lumber Constr. Co. v. Quandt, 806 N.E.2d 334 (Ind. Ct. App. 2004)).

1 74. Id. The court also rejected the defendant' s argument that service was invalid because the

certified mail attempt was returned undeliverable with a message stating "moved, left no address."

Id. The court found that the defendant, in fact, lived at the address at which service was attempted

and explained that '"[a] person who has refused to accept the offer or tender of the papers being

served thereafter may not challenge the service of those papers."' Id. (alteration in original)

(quoting Ind. Trial R. 4. 16(A)(2)). 5^a/^Thomisonv.IKIndy,Inc.,858N.E.2d 1052, 1058-59

(Ind. Ct. App. 2006) (concluding service pursuant to Rule 4.1(A)(3) was valid despite failure to

follow up with mail service, where defendant conceded that "the summons and complaint were

delivered to her residence and ma[de] no argument that she did not receive the complaint" (citing

Munster v. Groce, 829 N.E.2d 52, 63 (Ind. Ct. App. 2004) ("citing Boczar [v. Reuben, 742 N.E.2d

1010 (Ind. Ct. App. 2001)] as holding . . . 'failure to follow up delivery of a complaint and

summons under Trial Rule 4. 1 (A)(3) with mailing of a summons under Trial Rule 4. 1 (B) does not

constitute ineffective service of process if the subject of the summons does not dispute actually

having received the complaint and summons'"))).



2008] CIVIL PROCEDURE 903

C. Demandfor Jury Trial

In Daugherty v. Robinson Farms, Inc.,
115

the court clarified an apparent

conflict between Rule 6(B)—which allows the trial court discretion to grant a
belated demand for ajury trial

176—and Rule 38(D) 177—which provides that once
a party has failed to file a timely jury demand, the trial court may grant a jury
trial only if the parties agree to it.

178 The court in Daugherty identified the
potential conflict and explained its resolution as follows:

When Trial Rules 6(B) and 38(D) are read together in pari materia,
it is clear that the trial court has discretion to allow a belated demand for
ajury trial under Trial Rule 6(B) and Trial Rule 38(D). Such discretion,

however, follows only if the parties have entered into a written

agreement, agreeing to a trial by jury. To allow the trial court to grant
a belated jury trial demand under Trial Rule 6(B), without a written
agreement by the parties, would render the written agreement

requirement in Trial Rule 38(D) meaningless. Furthermore, Trial Rule

38(D), as the more specific rule, takes priority over the more general
Trial Rule 6(B).

179

The court in Daugherty concluded that the trial court erred when it granted the
belated jury demand, because "the parties did not enter into a written agreement

pursuant to Trial Rule 38(D)."
180

D. Compulsory Counterclaim

In NewAlbany Residential, Inc. v. Hupp,m the court reversed the trial court's
dismissal of the plaintiffs complaint, holding that the plaintiffs claim did not

constitute a compulsory counterclaim in a prior action to which the plaintiff was

not a party.
182

In the prior action, Hupp (now the defendant) had filed an action
for breach of contract against her employer, a real estate firm, and its two

shareholders.
183

However, she did not join the plaintiff in the current action as

a defendant.
184

Several years later, the plaintiff in the current action filed an

action against her for breach of the same contract.
185 The defendant moved for

summary judgment, arguing that the plaintiffs claim should have been asserted

175. 858 N.E.2d 192 (Ind. Ct. App. 2006), trans, denied, 869 N.E.2d 455 (Ind. 2007).

176. Ind. Trial R. 6(B).

177. Ind. Trial R. 38(D).

178. Daugherty, 858 N.E.2d at 197.

179. Id.

180. Id.

181. 872 N.E.2d 627 (Ind. Ct. App. 2007).

182. Id. at 631.

183. Mat 628.
184. Id.

185. Id.



904 INDIANA LAW REVIEW [Vol. 41 :883

as a compulsory counterclaim in the first lawsuit.
186

The Hupp court began its analysis with Rule 13(A), which governs
compulsory counterclaims and provides, in pertinent part:

"A pleading shall state as a counterclaim any claim which at the time
of serving the pleading the pleader has against any opposing party, if it

arises out of the transaction or occurrence that is the subject-matter of

the opposing party's claim and does not require for its adjudication the

presence of third parties of whom the court cannot acquire
jurisdiction."

187

The court noted that, while the rule does not define "pleader," the term has been
interpreted as applying only to opposing parties.

188 The defendant, however, was
not a party to—and did not take part in—the original action. 189 Consequently, the
defendant could not have asserted a claim in that matter.

190 The court further
noted that while the defendant could have been joined in the prior action, "that

course of action was not required." 191

E. Dismissal

1. Voluntary Dismissal.—In Finke v. Northern Indiana Public Service
Co.,

192
the court affirmed the trial court's refusal to permit the plaintiffs to

dismiss their complaint voluntarily pursuant to Rule 41(A), where the matter had

been pending for nearly two years and the parties had already participated in a

preliminary injunction hearing.
193 The court held that the plaintiffs' effort to

dismiss their claim voluntarily at that juncture did not satisfy the requirements

of Rule 41(A), noting that:

"The purpose of the rule pertaining to the voluntary dismissal of an

action was to eliminate evils resulting from the absolute right of a
plaintiff to take a voluntary nonsuit at any stage in the proceedings

before the pronouncement of judgment and after the defendant had

incurred substantial expense or acquired substantial rights."
194

2. Involuntary Dismissal.—In Olson v. Alick's Drugs, Inc., 195 the court held
that the trial court did not abuse its discretion in dismissing the plaintiff's

complaint pursuant to Rule 41(E), where the plaintiff failed to prosecute his

186. Id. at 628-29.

187. Id. at 629 (quoting IND. TRIAL R. 13(A)).

188. Id. at 630 (quoting Broadhurst v. Moenning, 633 N.E.2d 326, 333 (Ind. Ct. App. 1994)).

189. Id. at 631.

190. Id.

191. Id.

192. 862 N.E.2d 266 (Ind. Ct. App. 2006), trans, denied, 869 N.E.2d 458 (Ind. 2007).

193. Id. at 272.

194. Id. at 270 (quoting Rose v. Rose, 526 N.E.2d 231, 234 (Ind. Ct. App. 1988)).

195. 863 N.E.2d 314 (Ind. Ct. App.), trans, denied, 878 N.E.2d 208 (Ind. 2007).



2008] CIVIL PROCEDURE 905

claims for over six months.
196

Specifically, the plaintiff filed an employment
discrimination claim against the defendant, his former employer, in May 1998.
The matter was still pending in June 2005, by which time four attorneys had been
dismissed or had withdrawn from representing the plaintiff, and the plaintiff was
proceeding pro se.

197
Following a period of approximately six (6) months with

no apparent activity by the plaintiff, the defendant filed a motion to dismiss for

failure to prosecute, which the trial court granted.
198

On appeal, the court explained that the purpose of Rule 41(E) is '"to ensure
that plaintiffs will diligently pursue their claims,' and to provide 'an enforcement

mechanism whereby a defendant, or the court, can force a recalcitrant plaintiff
to push his case to resolution.'"

199 The Olson court identified a number of factors
the court must consider in determining whether dismissal pursuant to Rule 41 (E)

was a proper exercise of the trial court's discretion.
200 The factors identified by

the court included:

(1) the length of the delay; (2) the reason for the delay; (3) the degree of

personal responsibility on the part of the plaintiff; (4) the degree to

which the plaintiff will be charged for the acts of his attorney; (5) the

amount of prejudice to the defendant caused by the delay; (6) the

presence or absence of a lengthy history of having deliberately

proceeded in a dilatory fashion; (7) the existence and effectiveness of

sanctions less drastic than dismissal which fulfill the purposes of the

rules and the desire to avoid court congestion; (8) the desirability of

deciding the case on the merits; and (9) the extent to which the plaintiff

has been stirred into action by a threat of dismissal as opposed to
diligence on the plaintiff's part. The weight any particular factor has in
a particular case depends on the facts of that case.

201

In affirming dismissal, the court noted that it was not persuaded that lesser
sanctions would be effective and determined that the plaintiff was "undoubtedly
stirred to action by the threat of a dismissal as opposed to genuine diligence."

202

The court further concluded that the defendants had "undoubtedly been
prejudiced as issues related to this cause of action [had] been hanging over their

heads for nearly a decade."
203

196. Mat 321-22.
197. Mat 317-18.
198. Mat 318.
199. Id. at 319 (quoting Belcaster v. Miller, 785 N.E.2d 1 164, 1 167 (Ind. Ct. App. 2004)).

200. Mat 319-20.
201. Id. (citing Office Env't, Inc. v. Lake States Ins. Co., 833 N.E.2d 489, 494 (Ind. Ct. App.

2005)).

202. Id. at 320 (citing Office Env't, 833 N.E.2d at 494).

203. Id. at 321.



906 INDIANA LAW REVIEW [Vol. 41 :883

F. Class Actions—Scope of Certification
In 7-Eleven, Inc. v. Bowens,

204
the Indiana Court ofAppeals affirmed the trial

court' s class action certification where the trial court had limited the certification

to issues of "liability and general causation."
205 The court began its analysis with

the applicable language of Rule 23(C)(4)(a), which "provides that when
appropriate, 'an action may be brought or maintained as a class action with
respect to particular issues."'

206 As the court observed:

"The theory of Rule 23(c)(4)(A) is that the advantages and

economies of adjudicating issues that are common to the entire class on
a representative basis should be secured even though other issues in the

case may have to be litigated separately by each class member.
Accordingly, even if only one common issue can be identified as
appropriate for class action treatment, that is enough to justify the
application of the provision as long as the other Rule 23 requirements

have been met."
207

The plaintiffs proposed that, once "general causation" had been established,
there would be a number of individual trials for the affected class members.208

The court embraced this approach, noting that it is common in toxic tort
litigation.

209
Accordingly, the court concluded that the trial court had not abused

its discretion in certifying the class to limited issues.
210

G. Discovery

1. Duty to Supplement Responses.—In Hlinko v. Marlow,2n the court held
that the plaintiff did not violate its duty to supplement its discovery responses

where the plaintiff did not delay in advising the defendant regarding changes in

the plaintiff s expert' s opinion.
212

Following an automobile accident in which the

plaintiff was injured, the plaintiff's medical expert examined her and prepared

a report regarding his opinions as to the extent of the plaintiff's injuries.
213

Approximately three weeks before trial—and over three years after his initial
examination—the plaintiff's medical expert reexamined her. In the second
examination, the expert concluded that the plaintiff s condition had regressed and

204. 857 N.E.2d 382 (Ind. Ct. App. 2006).

205. Id. at 388-89.

206. Id. at 388 (citing Ind. Trial R. 23(c)(4)).

207. Id. (quoting Bank One Indianapolis, N.A. v. Norton, 557 N.E.2d 1038, 1041 (Ind. Ct.

App. 1990)).

208. Id.

209. Id. at 389.

210. Id.

211. 864 N.E.2d 351 (Ind. Ct. App.), trans, denied, 869 N.E.2d 462 (Ind. 2007).

212. Id. at 354.

213. Mat 353.



2008] CIVIL PROCEDURE 907

that her injuries were more substantial than indicated in his earlier report.214

Eleven days later, the expert faxed his notes to the plaintiff's attorney, who
forwarded the notes to the defendant's counsel six days later.

215 On the first day
of trial, the defendant moved to continue trial or, in the alternative, to bar the
plaintiff s expert from testifying based on the plaintiff s failure to supplement its

discovery responses. The trial court denied the defendant's motion.216

On appeal, the court concluded that, because the discovery responses at issue
pertained to the subject matter of an expert's testimony, Rule 26(E) required

supplementation.
217 The court further observed that the duty to supplement is

"absolute" and that the trial court has discretion to exclude the witness'

testimony if a party fails to comply with its obligations under Rule 26(E).
218

However, because the plaintiff's counsel provided the supplemental information

to his adversary within a week of receipt, the court held that the plaintiff did not
breach her duty to supplement her discovery responses.

219

2. Dismissal as Sanctionfor Discovery Violation.—In Brown v. Katz 220 the
court of appeals upheld the trial court's dismissal of the plaintiff's complaint as

a discovery sanction, even though lesser sanctions had not been previously

imposed.
221 The plaintiff objected to the majority of the defendant's document

requests, relying on vague, blanket assertions of "insured-insurer privilege,

attorney-client privilege and work product."222 The plaintiff also refused to
answer approximately ninety questions posed to him during his deposition, again
asserting attorney-client privilege and work product protection.223 In response,
the defendant filed a motion to dismiss the plaintiff s complaint pursuant to Rule

37(D).
224

Following a hearing, the trial court ordered the plaintiff to supply a privilege

log. However, the plaintiff failed to comply, providing what was determined to
be an inadequate privilege log after the court-ordered deadline.

225
The trial court

gave the plaintiff another chance to provide an adequate privilege log. The
plaintiff again failed to comply.

226
Consequently, the trial court dismissed the

plaintiff's claim.
227

On appeal, the court noted that Rule 37(B)(2) permits the trial court to

214. Mat 354.
215. Id.

216. Id.

217. Id. (citing Everage v. N. Ind. Pub. Serv. Co., 825 N.E.2d 941, 951 (Ind. Ct. App. 2005)).

218. Id. (citing Everage, 828 N.E.2d at 951).

219. Id.

220. 868 N.E.2d 1 159 (Ind. Ct. App. 2007).

221. Mat 1161.
222. Id. at 1162.

223. Mat 1163.
224. Id.

225. Id. at 1163-64.

226. Id. at 1164.

227. Id. at 1164-65.



908 INDIANA LAW REVIEW [Vol. 41 :883

sanction parties for failure to comply with discovery orders and the decisions
regarding whether to impose a sanction and what sanction to impose are

entrusted to the trial court's discretion.
228 The court concluded that, in light of

the plaintiff's "indolence," the trial court did not abuse its discretion in imposing

discovery sanctions.
229

Moreover, in affirming dismissal as the appropriate

sanction, the court observed that "'Rule 37 has been substantially rewritten and

no longer requires a trial court to impose a lesser sanction before dismissing an

action or entering a defaultjudgment, especially where the disobedient party has

demonstrated contumacious disregard for the court's orders.'"
230

3. Preservation of Pre-Litigation Witness Testimony.—In United States
Fidelity & Guaranty Insurance Co. v. Hartson-Kennedy Cabinet Top Co.,231 the
court affirmed the trial court' s order granting the appellee' s petition to perpetuate

the testimony of a witness pursuant to Rule 27(A).
232

In anticipation of an

insurance coverage dispute, which had not yet ripened, the appellee petitioned

the trial court to perpetuate the testimony of its sixty-nine-year-old accountant,

who had reviewed the appellee' s insurance policies and kept detailed notes of his
review for over thirty years.

233 The court granted the appellee's petition.234

On appeal, the court determined that the threshold requirement for a Rule
27(A) petition is some impediment to bringing suit. 235 The court observed that
the absence of such a requirement would "promote an abuse of the rule . . .
[ljitigants could then use the rule as a 'fishing expedition' to discover grounds

for a lawsuit, and, if found, to determine against whom the action should be
initiated. These uses are not contemplated by Rule 27.

"

236

Once the petitioner has established the existence of an impediment to
bringing suit, the Rule 27(A) petition may be granted to '"prevent a failure or
delay of justice.'"

237
Because it was uncertain when—or if—the appellee's

coverage claim against the appellant insurer would ripen, and because the witness
in question was an elderly gentleman and the exclusive source ofinformation, the
court concluded that granting the Rule 27(A) petition would prevent the failure

or delay of justice and, therefore, affirmed the trial court.
238

4. Recovery ofFees Incurred Attending Rule 37 Hearing.—In M.S. ex rel.

228. Mat 1165.
229. Mat 1169.
230. Id. (internal quotation marks omitted) (quoting Benchmark at Fla., Inc. v. Star Fin. Card

Servs., Inc., 679 N.E.2d 973, 978 (Ind. Ct. App. 1997)).

231. 857 N.E.2d 1033 (Ind. Ct. App. 2006).

232. Id. at 1035.

233. Id. at 1035-36.

234. Id. at 1036.

235. Id. at 1037.

236. Id. (quoting Sowers v. Laporte Superior Court, 577 N.E.2d 250, 253 (Ind. Ct. App.

1991)).

237. Id. (quoting Sowers, 577 N.E.2d at 252).

238. Id. at 1040.



2008] CIVIL PROCEDURE 909

Newman v. K.R.,239 the court held that a trial court has discretion to award
attorney's fees incurred in attending a hearing regarding a motion for a Rule 37

protective order.
240

Following a hearing regarding the petitioner's motion for

protective order and the respondent's motion to compel discovery, the trial court

granted the petitioner' s motion, denied the respondent' s motion, and awarded the

petitioner its attorney's fees.
241

On appeal, the court first noted that the entry or denial of a protective order
carries with it the presumption that the trial court will also require reimbursement

of the prevailing party's reasonable expenses.
242

Having concluded that the

respondent failed to rebut this presumption,
243

the court held that, because Rule

37(A)(4) permits an award ofexpenses incurred in "staving off the other party's
discovery, "it logically follows" that the prevailing party should also recover for

expenses incurred in preparing for and attending the expense award hearing.
244

H. Summary Judgment

1. Summary Judgment Denial as Interlocutory Order.—In Indiana
Department of Transportation v. Howard,

1*5
the court dismissed an appeal for

lack of jurisdiction where the appellant failed to secure certification of an

interlocutory order denying summary judgment.246 The trial court initially
granted the appellant's summary judgment motion; however, the trial court
subsequently granted the appellee's motion to correct error, set aside its order

granting summary judgment, and denied the appellant's motion for summary
judgment.

247
The Howard court noted that, because a denial of summary

judgment is not a final appealable order, a party seeking review must seek an

interlocutory appeal pursuant to Indiana Rule of Appellate Procedure 14(B).
248

The appellant failed to seek certification from the trial court authorizing the
appeal of the interlocutory order; therefore, the court held it lacked jurisdiction

and dismissed the appeal.
249

2. Admissibility of Summary Judgment Evidence.—In Breining v.
Harkness,

250
the court affirmed the trial court' s order striking portions of the

239. 871 N.E.2d 303 (Ind. Ct. App.), trans, denied, 878 N.E.2d 215 (Ind. 2007).

240. Mat 306, 311-12.
241. Id. at 309-10.

242. Id. at 311 (citing Munsell v. Hambright, 776 N.E.2d 1272, 1277 (Ind. Ct. App. 2002)).

243. Id. at 311-12.

244. Id. at 313.

245. 873 N.E.2d 72 (Ind. Ct. App. 2007), vacated on other grounds, 879 N.E.2d 1119 (Ind.

Ct. App. 2008).

246. Mat 74-75.
247. Id.

248. Id. at 75 (citing Cardiology Assocs. of Nw. Ind., P.C. v. Collins, 804 N.E.2d 151, 155

(Ind. Ct. App. 2004)).

249. Id.

250. 872 N.E.2d 155 (Ind. Ct. App. 2007).



910 INDIANA LAW REVIEW [Vol. 41:883

plaintiff s affidavit in support of summaryjudgment, holding that "[inadmissible
hearsay contained in an affidavit may not be considered in ruling on a summary
judgment motion."

251 The plaintiff sought to oppose the defendant's summary
judgment motion—directed toward the plaintiffs conversion claim—with an
affidavit relating to the challenged transactions.

252
However, the court rejected

this attempt, concluding that "[i]nasmuch as [the plaintiff] lacked personal

knowledge of the transaction at issue, and attempted to introduce hearsay and

legal conclusions through his affidavit, the substantive portions of his affidavit

were properly stricken."
253

3. Extension of Time to Respond to Summary Judgment Motion.—In
McGuire v. Century Surety Co.,254 the court affirmed the trial court's order
denying an extension of time to respond to a summary judgment motion.255

Appellants had filed a third-party claim against the appellee, the appellant's

insurer, disputing the appellee's denial of coverage for damage sustained at the
appellants' home.

256
In response to the appellee' s summaryjudgment motion, the

appellants sought an extension of time in which to file their opposition,

contending that additional time was needed (1) to consult with the trustee in a
related bankruptcy proceeding and (2) because of time constraints upon the

appellant's attorney, who was also representing them in the bankruptcy
proceeding.

257

The court began its analysis with a review of Rule 56(1), which provides,
"Tor cause found, the Court may alter any time limit set forth in this rule upon
motion made within the applicable time limit.'"258 The court next observed that
altering time limits on summary judgment is within the trial court's discretion,
and, while the trial court could have granted the appellant' s motion for additional

time, it was not an abuse of discretion to deny it.259 The appellants provided no
explanation of the need to consult with the bankruptcy trustee.

260
Further, the

court noted that "a general claim of being too busy to timely respond to another

party' s motion does not require a court to grant a motion for an extension of time

to file a response, although it may permit a trial court to grant such a motion."261

251. Id. at 158 (citing Newell v. Standard Land Corp., 297 N.E.2d 842, 846 (Ind. Ct. App.

1973)).

252. Id. at 157-58.

253. Id. at 158.

254. 861 N.E.2d 357 (Ind. Ct. App. 2007).

255. Id. at 359-60.

256. Id.

257. Id. at 360.

258. Id. (quoting Ind. TRIAL R. 56(1)).

259. Id.

260. Id.

261. Id.



2008] CIVIL PROCEDURE 9 1

1

/. Relieffrom Judgment

1. "Excusable Neglect.

"

—In Shane v. Home Depot USA, Inc.,262 the court
affirmed a trial court's order setting aside default judgment, holding that the

defendant's failure to file a timely answer to the plaintiffs' complaint resulted

from excusable neglect.
263 The Shane court first noted that, because each case

has unique facts, the trial court has broad discretion in determining whether to

set aside a default judgment.
264

Further, the court observed that, in light of the

"preferred policy" to determine cases on their merits,
265

default judgments are

disfavored, and "[a]ny doubt of the propriety of a default judgment should be

resolved in favor of the defaulted party."
266

Rule 55(C) provides that a default judgment may be set aside if the grounds
articulated in Rule 60(B)—including excusable neglect267—are present.268
Noting that "[t]here are no clear standards to determine what is and is not

excusable neglect,"
269

the court opined that the determination must be based on

a balancing of "'the need for efficient administration of justice with the

preference for deciding cases on their merits and giving a party its day in

court.'"
270

In Shane, the defendant's failure to file a timely answer resulted from a

breakdown in communications with his insurer.
271 The defendant provided

prompt notice of the plaintiff's lawsuit; however, the insurer assigned the matter

to an adjuster who had left the company.272 Accordingly, the court concluded
that it could not find error with the trial court's decision to set aside the default

judgment where a miscommunication within the defendant's insurance company
led to the default.

273

2. "Extraordinary Circumstances.

"

—In Brimhall v. Brewster 214 the court
addressed whether extraordinary circumstances existed such that the plaintiffs

could be granted relief from entry ofjudgment pursuant to Rule 60(B)(8).
275 The

trial court had dismissed the plaintiffs' complaint in accordance with Rule 41(E);

262. 869 N.E.2d 1232 (Ind. Ct. App. 2007).

263. Id. at 1236.

264. Id. at 1234 (citing Anderson v. State Auto Ins. Co., 851 N.E.2d 368, 370 (Ind. Ct. App.

2006)).

265. Id. (citing Walker v. Kelley, 819 N.E.2d 832, 837 (Ind. Ct. App. 2004)).

266. Id. (citing Coslett v. Weddle Bros. Constr. Co., 798 N.E.2d 859, 861 (Ind. 2003)).

267. Ind. Trial R. 60(B)(1).

268. Shane, 869 N.E.2d at 1234 (citing Flying J, Inc. v. Jeter, 720 N.E.2d 1247, 1249 (Ind.

Ct. App. 1999)).

269. Id. (citing Jeter, 720 N.E.2d at 1249).

270. Id. (quoting Jeter, 720 N.E.2d at 1249).

271. Mat 1236.
272. Id.

273. Id.

21A. 864 N.E.2d 1 148 (Ind. Ct. App.), trans, denied, 878 N.E.2d 205 (Ind. 2007).

275. Id. at 1153.



912 INDIANA LAW REVIEW [Vol. 41:883

however, the plaintiffs did not receive notice of the dismissal, continued to

prosecute their claims against the defendant, and obtained a defaultjudgment.
276

Nearly a year later, the trial court sought to remedy the problem through a pair
of nunc pro tunc orders.

277 The court of appeals rejected this approach.278

Following the denial of transfer, the plaintiffs filed a motion for relief from the
entry ofjudgment.

279

Because more than a year had passed since the entry of judgment, relief
under Rule 60(B)(l)-(4) was not available to the plaintiffs; rather, they were
limited to seeking relief under Rule 60(B)(8), which required the plaintiffs to

establish "exceptional circumstances justifying extraordinary relief."
280

Moreover, the court noted that, to meet their burden, the plaintiffs must do more
than show that their failure to act was the result of '"an omission involving
mistake, surprise, or excusable neglect. Rather some extraordinary
circumstances must be demonstrated affirmatively.'"

281

The Brewster court concluded that the trial court had not abused its
discretion in determining that the plaintiffs had demonstrated the existence of

extraordinary circumstances—including the trial court's failure to notify the
plaintiffs of the dismissal and then permitting the case to proceed as if no

dismissal had been entered.
282

7. Motion to Correct Error

1. Distinguishedfrom Motion to Reconsiderfor Appellate Purposes.—In
Citizens Industrial Group v. Heartland Gas Pipeline, LLC,2*3 the court held that
an appellant must file a notice of appeal within thirty days of an administrative

agency' s order, regardless of whether the party petitions the agency to reconsider

its ruling.
284 Twenty days after an order by the Indiana Utility Regulatory

Commission ("IURC"), the appellant filed a petition with the IURC for
reconsideration. The IURC denied the petition fifty-seven days later.285 The
appellant filed its notice of appeal thirty days after the IURC denied its petition
for reconsideration—or 107 days after the IURC entered its order.286

On appeal, the court noted that, pursuant to Rule 53.4, a motion to reconsider

276. Id. at 1150.

277. Id.

278. Id. 1 150-5 1 ; see also Dorelli, supra note 4, at 739-41 (discussing Brimhall v. Brewster,

835 N.E.2d 593 (Ind. Ct. App. 2005), trans, denied, 855 N.E.2d 1005 (Ind. 2006)).

279. Brewster, 864 N.E.2d at 1 151.

280. Id. at 1153 (citing Ind. Ins. Co. v. Ins. Co. of N. Am., 734 N.E.2d 276 (Ind. Ct. App.

2000)).

281. Id. (quoting Ind. Ins. Co., 13A N.E.2d at 279-80)).

282. Id. at 1154.

283. 856 N.E.2d 734 (Ind. Ct. App. 2006), trans, denied, 869 N.E.2d 453 (Ind. 2007).

284. Mat 738.
285. Mat 736.
286. Id.



2008] CIVIL PROCEDURE 9 1

3

will not toll a party's deadline to file a notice of appeal in the context of general

civil litigation.
287

However, the court determined that, in an administrative

proceeding, filing a motion to reconsider or for rehearing following an entry of

a final order is tantamount to filing a motion to correct errors following a court's

entry of final judgment.
288

The court then contrasted Appellate Rule 9(A)(1), which provides that a
party's notice of appeal must be filed within thirty days of the date on which its

motion to correct errors is denied or deemed denied, with Appellate Rule
9(A)(3), which governs appeals from agency decisions.

289 As the court noted,
Rule 9(A)(3) does not have "language regarding a petition for reconsideration,

the administrative procedure's counterpart to a motion to correct error."
290

The court suggested that "equity would seem to favor giving administrative
agencies the same second chance to review their decisions as trial courts are

afforded"; however, the court determined that it was "constrained by the
language ofthe rules of appellate procedure."

291
Accordingly, the court held that,

because the appellant had failed to file his notice of appeal within thirty days of

the IURC order, the appellant failed to comply with Appellate Rule 9(A)(3) and
dismissed the appeal.

292

2. Deemed Denial and Impact on Appeal.—In HomEq Servicing Corp. v.
Baker,

293
the court reversed the trial court's untimely order granting a motion to

correct error, which had already been deemed denied.294 Following the trial
court's entry of summary judgment in favor of the defendant, the plaintiff filed
a motion to correct error and set aside summary judgment. Thirty-eight days
after the hearing on the plaintiff's motion, the trial court entered an order

granting plaintiff's motion to correct error and setting aside the summary
judgment order.

295
In light of the trial court's order, the plaintiff did not file a

notice of appeal.
296

On appeal, the defendant argued that the motion to correct error had been
deemed denied pursuant to Rule 53.3(A), which provides that such a motion shall
be deemed denied if the trial court fails to rule on the motion within thirty days
after it is heard.

297 The Baker court agreed, holding that the motion to correct
error was deemed denied.298 Further, relying on the Indiana Supreme Court's

287. Id. at 737.

288. Id.

289. Id.

290. Id.

291. Id. at 738.

292. Id.

293. 863 N.E.2d 1262 (Ind. Ct. App. 2007), trans, granted, opinion vacated, 883 N.E.2d 95

(Ind. 2008).

294. Mat 1265.
295. Id. at 1263-64.

296. Id.

297. Mat 1264.
298. Mat 1265.



914 INDIANA LAW REVIEW [Vol. 41 :883

decision in Cavinder Elevators, Inc. v. Hall,
199

the court concluded that, because

the plaintiff had not filed a notice of appeal within thirty days of the date on
which their motion to correct error was deemed denied, the plaintiff could not
argue the merits of its motion to correct error, i.e., that summaryjudgment should
not have been entered in favor of the defendant, on cross appeal.

300

3. Second Motion to Correct Error.—In Peters v. Perry,301 the court of
appeals confronted the issue of whether a second motion to correct error will

further toll the movant's deadline to file a notice of appeal.
302

Following the trial

court's entry of default judgment against the defendant, who proceeded in the
action pro se,

303
on June 16, 2006, the defendant filed two motions to correct

error—the first on June 19, 2006, and the second on July 17, 2006.
304 The trial

court denied the first motion to correct error on July 5, 2006, but did not deny the

second motion until October 23, 2006.
305 The defendant filed his notice of

appeal on November 22, 2006.
306

On appeal, the court held that, pursuant to Appellate Rule 9(A)(1), the
defendant had thirty days from the denial of the first motion to correct error to

file his notice of appeal.
307 The defendant's November 22, 2006 notice of appeal

came well after this deadline had expired.308

K. Arbitration

1. Scope.—In Walker v. DaimlerChrysler Corp. 309 in a matter of first
impression, the court considered whether the Magnuson-Moss Warranty Act
("MMWA") permits binding arbitration agreements.310 The plaintiff filed suit
against the defendant automobile manufacturer, asserting (among other things)

a claim for "breach of written warranty pursuant to the MMWA."311 Because the

299. 726 N.E.2d 285 (Ind. 2000). In Cavinder, the plaintiffs motion to correct error was

deemed denied where the trial court failed to rule within thirty days of the hearing; however, the

plaintiff filed its notice of appeal within thirty days. Id. at 286. Accordingly, the Cavinder court

determined that the plaintiff had preserved its ability to argue the merits of its motion to correct

error on appeal. Id. at 289.

300. Baker, 863 N.E.2d at 1265.

301. 873 N.E.2d 676 (Ind. Ct. App.), reh'g, 877 N.E.2d 498 (Ind. Ct. App. 2007).

302. Id. at 678.

303. The court noted that '"a litigant who chooses to proceed pro se will be held to the same

rules of procedure as trained legal counsel and must be prepared to accept the consequences of his

action.'" Id. (quoting Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004)).

304. Id. at 677.

305. Id.

306. Id.

307. Id. at 679.

308. Id.

309. 856 N.E.2d 90 (Ind. Ct. App. 2006), trans, denied, 869 N.E.2d 455 (Ind. 2007).

310. Mat 93.
311. Id. at 92.



2008] CIVIL PROCEDURE 9 1

5

written warranty agreement contained an arbitration clause, the trial court granted

the defendant's summary judgment motion and entered an order dismissing the
plaintiffs complaint and compelling arbitration.

312

On appeal, the plaintiff argued that binding arbitration agreements are
unenforceable under the MMWA.313 Noting the presumption in favor of the
enforceability of contractual arbitration provisions,

314
the court applied the test

articulated by the United States Supreme Court in McMahon "to determine
whether a specific statute allows binding arbitration."

315
Specifically, as the

party opposing arbitration, the plaintiff bore the burden of establishing that

Congress intended to preclude arbitration.
316

This intent would be evident from:
"(1) the statute's text; (2) the statute's legislative history; or (3) an inherent

conflict between arbitration and the statute's underlying purposes."
317

The Walker court analyzed each of the three McMahon factors and
determined that the plaintiff directed the court to no language in the MMWA and
nothing in the legislative history of the MMWA prohibiting binding
arbitration.

318
Further, the plaintiff did not identify any "inherent conflict

between arbitration and the MMWA's underlying purposes."319
The court also rejected the plaintiffs argument that the Federal Trade

Commission's ("FTC") interpretation of the MMWA as not permitting binding
arbitration should guide the court's decision.

320
In reaching this result, the court

found unreasonable each of the three bases supporting the FTC's
interpretation.

321
First, the court asserted that the MMWA's provision for a

judicial forum does not, as the FTC concluded, prohibit a binding arbitration
agreement.

322
Second, the court noted that the "MMWA's provision for non-

binding informal dispute resolution procedures does not preclude enforcement

of a mandatory binding arbitration agreement."
323

Finally, the court rejected the

FTC's concern that arbitration will not adequately protect consumers.
324

Having rejected the FTC s interpretation ofthe MMWA as unreasonable and
having determined that the plaintiff failed to carry his burden with respect to

312. Id.

313. Mat 92-93.
314. Id. at 93-94 (citing Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987)).

315. Id. at 94. This is referred to as the McMahon Test. Id.

316. Id. (citing McMahon, 482 U.S. at 226).

317. Id. (citing McMahon, 482 U.S. at 227).

318. Mat 95.
319= Id.

320. Id. at 97.

321

.

Id. (employing the test articulated by the U.S. Supreme Court in Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). As a preliminary matter, the court

noted that under Chevron Step 1 , that Congress had not directly addressed the issue. Id. The court

then noted that "Congress did not explicitly leave a gap for the agency to fill." Id.

322. Mat 97-98.
323. Mat 98.
324. Id.



916 INDIANA LAW REVIEW [Vol. 41:883

demonstrating Congress' intent to prohibit arbitration, the court held that the

"mandatory binding arbitration agreements are permissible under the

MMWA."325
2. Waiver.—In Tamko Roofing Products, Inc. v. Dilloway 326 the court of

appeals affirmed the trial court' s order denying the defendant' s motion to dismiss

and compel arbitration, holding that the defendant had waived its right to enforce

a contractual arbitration provision.
327 The plaintiff brought a claim against the

defendant, a manufacturer of roofing products, alleging breach of a written

warranty. Because the warranty contained a binding arbitration provision, the

defendant moved to dismiss the plaintiff s complaint and to compel arbitration.328

However, because the defendant waited until after the plaintiff had presented his

evidence at trial before making its motion to dismiss, the trial court denied the

motion and determined that the defendant had waived its right to arbitrate.
329

On appeal, the court first noted that, although arbitration agreements are
generally "'valid and enforceable, the right to require such arbitration may be
waived by the parties.'"

330
Moreover, waiver can "be implied by the acts,

omissions or conduct of the parties."
331 When determining whether a party has

waived its right to arbitrate, the court will consider a number "'of factors,
including the timing of the arbitration request, if dispositive motions have been

filed, and/or if a litigant is unfairly manipulating the judicial system by

attempting to obtain a second bite at the apple due to an unfavorable ruling in

another forum.'"
332

The court concluded that, because the record indicated that the defendant
took no action to compel arbitration until after the plaintiff had rested its case at

trial, the defendant waived its right to arbitration.
333

L. Attorney Fees

In Reuille v. E.E. Brandenberger Construction, Inc.,
334

the court of appeals

affirmed the trial court's denial of an award of attorney's fees, holding that

Indiana does not recognize the "catalyst" theory.
335 The plaintiff and defendant

had entered into a contract, which included a provision whereby the "prevailing

325. Id. at 99.

326. 865 N.E.2d 1074 (Ind. Ct. App. 2007).

327. Id. at 1080.

328. Id. at 1076.

329. Id. at 1077.

330. Id. at 1079 (quoting Safety Nat'l Cas. Co. v Cinergy Corp., 829 N.E.2d 986, 1004 (Ind.

Ct. App. 2005)).

331. Id. (citing Safety Nat'l Cas. Co., 829 N.E.2d at 1004).

332. Id. (quoting Safety Nat'l Cas. Co., 829 N.E.2d at 1004).

333. Id. at 1079-80.

334. 873 N.E.2d 1 16 (Ind. Ct. App. 2007), trans, granted, opinion vacated, 888 N.E.2d 770

(Ind. 2008).

335. Id. at 120.



2008] CIVIL PROCEDURE 917

party" in any action to enforce the contract would be entitled to recover

attorney ' s fees. The parties participated in mediation, during which they entered
into a settlement upon favorable terms to the plaintiff.

336 The trial court
determined that the plaintiff was not a "prevailing party" under the parties'
agreement and, therefore, was not entitled to recover fees.337

On appeal, the plaintiff argued that the trial court did not interpret the term
"prevailing party" correctly.

338
Plaintiff contended that he was the prevailing

party by virtue of the "catalyst theory," whereby a plaintiff is considered a

prevailing party if he achieves his desired result in that the "'lawsuit brought

about a voluntary change in the defendant's conduct.'"
339 The court rejected this

argument, holding that, at the time the parties executed their settlement

agreement, Indiana law did not recognize the "catalyst theory."
340

Moreover, the

court held that, "under current precedent," to be considered a "prevailing party,"

one must obtain a judgment or consent decree.
341

M. Post-Judgment Security

In Adams ex rel. Adams v. Sand Creek, Inc.,342 an attorney who had
successfully represented the plaintiff in a personal injury action appealed the trial

court's order directing him to post a bond relating to an attorney's lien filed by
his co-counsel.

343 On appeal, the court held that Rule 64(A) and (B) provide the
trial court with remedies to assist in securing satisfaction of judgments;

344

however, the court determined that these rules provide remedies to "the plaintiff

in a lawsuit filed to recover money from another party."345 However, because the
appellant and appellee were not parties in the lawsuit, Rule 64(A) and (B) were

inapplicable, and the court reversed the trial court's order.
346

N. Small Claims Court

I. Res Judicata.—In Moreton v. Auto-Owners Insurance 341 the court
affirmed the trial court's denial of the defendant's summaryjudgment motion.348

336. Id. at 117-18.

337. /c/. at 118.

338. Id. at 119.

339. Id. at 1 19-20 (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health &
Human Res., 532 U.S. 598, 601 (2001)).

340. Id. at 121.

341. Id. at 122 (citing Buckhannon Bd., 532 U.S. at 600; Daffron v. Snyder, 854 N.E.2d 52,

53, 56-57 (Ind. Ct. App. 2006)).

342. 860 N.E.2d 898 (Ind. Ct. App. 2007).

343. Mat 899.
344. Id. at 902-03.

345. Id. at 903.

346. Id. at 903-04.

347. 859 N.E.2d 1252 (Ind. Ct. App. 2007).

348. Mat 1255.



918 INDIANA LAW REVIEW [Vol. 41:883

The plaintiff, an insurance company exercising its subrogation rights, brought a
negligence action against the defendant, a contractor who had performed work
on the plaintiffs insured's property.

349
Prior to the plaintiffs action, its insured

successfully prosecuted a small claims action against the defendant for the

uninsured portion ofthe loss arising from the defendant' s work.350 The defendant
moved for summaryjudgment, arguing that the plaintiff's claims were barred by
res judicata.

351 On appeal following the trial court's denial of the defendant's
summary judgment motion, the defendant argued that res judicata barred the
plaintiff from relitigating claims that were or could have been asserted in the

prior small claims action.
352

The Moreton court began its analysis with Small Claims Rule 1 1(F), which
provides that "[a] judgment shall be res judicata only as to the amount involved

in the particular action and shall not be considered an adjudication of any fact at

issue in any other action or court."
353

Next the court examined the four elements

necessary for a judgment to have res judicata effect, namely:

1) the formerjudgment must have been rendered by a court ofcompetent

jurisdiction; 2) the matter now in issue was, or might have been,
determined in the former suit; 3) the particular controversy previously

adjudicated must have been between the parties to the present suit or

their privies; and 4) the judgment in the former suit must have been

rendered on the merits.
354

Relying on the Indiana Supreme Court's decision in Chemco Transport, Inc. v.
Conn,

355
the court concluded that the plaintiff was not a party to the prior small

claims action; furthermore, the plaintiff lacked control over its insured's actions

in the prior action—and was apparently unaware of its insured's claim.356
Accordingly, the court affirmed the trial court's order denying summary
judgment.

357

2. Corporation Representation by Counsel.—In Stillwell v. Deer Park

349. Id. at 1253.

350. Id.

351. Mat 1253-54.
352. Id. at 1253.

353. Inc. Small Claims R. 1 1(F).

354. Moreton, 859 N.E.2d at 1254 (citing Cox v. Ind. Subcontractors Ass'n, Inc., 441 N.E.2d

222, 225 (Ind. Ct. App. 1982)).

355. 527 N.E.2d 179 (Ind. 1988). In Conn, the supreme court held that an insurer's settlement

and dismissal of a subrogation claim did result in res judicata as to the insured's claim against the

same defendant for the same injuries because the insurer only partially compensated its insured for

the loss and because the insured was not a party to the subrogation action and had no ability to

control it. Id.

356. Moreton, 859 N.E.2d at 1254-55 (noting that even though "the rules of the insurer and

the insured [were] reversed ... the Conn reasoning leads ... to the same result").

357. Id. at 1255.



2008] CIVIL PROCEDURE 9 1

9

Management,
35S

the court concluded that it was error for the trial court to permit
the corporate plaintiff to proceed in a small claims action unrepresented by

counsel.
359 The plaintiff-appellee, a landlord, brought an action to recover unpaid

rent from the defendant-appellant, a former tenant; however, the plaintiff did not

appear in the action through an attorney during the pretrial proceedings, as

required by Small Claims Rule 8(C).
360

However, the plaintiff was represented

by an attorney at trial.
361

Following trial, judgment was entered in favor of the
plaintiff, and the defendant appealed.

362

On appeal, the court observed that the requirement that corporate parties be
represented by counsel arises from the need '"to curtail unlicensed practice of

law, the attendant ills of which can be exacerbated when one of the litigants is
a corporation."'

363 As the court continued, a corporation can only act through its
agents, and "'[w]hen these agents are not attorneys, a lack of legal expertise

combined with a failure to maintain a proper chain of communication between

the agents at each level of the action may act to frustrate the continuity, clarity
and adversity which the judicial process demands.'"

364
Accordingly, the court

concluded that the trial court erred by permitting the plaintiff to proceed without

an attorney until trial;
365

however, because the plaintiff was represented at trial,
the trial court's error was not reversible.366

HI. Amendments to Indiana Rules of Trial Procedure

In September 2007, the Indiana Supreme Court ordered a number of
amendments to the Indiana Rules of Trial Procedure, which became effective
January 1, 2008.

367

A. Electronic Discovery

The most significant amendments to the Rules relate to the discovery of
electronically stored information. Specifically, Rules 26, 34, and 37 were

amended to include provisions relating to electronic discovery. For example,

358. 873 N.E.2d 647 (Ind. Ct. App. 2007), reh'g, 877 N.E.2d 227 (Ind. Ct. App. 2008)

(unpublished table decision).

359. Id. at 650.

360. Id. at 649.

361. Mat 650.
362. Id. at 649.

363. Id. (quoting Yogi Bear Membership Corp. v. Stalnaker, 571 N.E.2d 331, 333 (Ind. Ct.

App. 1991)).

364. Id. at 650 (alteration in original) (quoting Stalnaker, 571 N.E.2d at 333).

365. Id.

366. Id. at 651.

367. The most significant amendments to the Rules, effective January 1, 2008, are addressed

below. For a complete description ofrevisions to the Rules, see the Indiana Supreme Court' s Order

Amending Rules of Trial Procedure, entered September 10, 2007, which is available at

http://www.in.gov/judiciary/orders/rule-amendments/2007/trial-091007.pdf.



920 INDIANA LAW REVIEW [Vol. 41:883

Rule 26(A), which identifies permissible "methods" of discovery, was amended
to include production of "electronically stored information."

368

Rule 34(A), governing requests for the production of documents or other

materials, was amended to include "electronically stored information" among
discoverable materials.

369
Rule 34(B) was amended to provide that a request for

electronically stored information "may specify the form or forms in which
electronically stored information is to be produced."

370
Rule 34(B) was also

amended to provide that a responding party may object "to the requested form or
forms for producing electronically stored information" and, further, "[i]f

objection is made to the requested form or forms for producing electronically
stored information—or if no form was specified in the request—the responding
party must state the form or forms it intends to use."

371
Finally, Rule 34(B) was

amended to guide a responding party when no "form" is specified in the request
for production of electronically stored information:

If a request for electronically stored information does not specify the

form or forms of production, a responding party must produce the

information in a form or forms in which it is ordinarily maintained or in

a form or forms that are reasonably usable. A party need not produce the
same electronically stored information in more than one form.

372

Rule 26(C), governing protective orders, provides that "[u]pon motion by any

party or by the person from whom discovery is sought, and for good cause
shown, the court . . . may make any order which justice requires to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or

expense."
373

Rule 26(C) proceeds to enumerate various forms of relief available

via protective order.
374

Rule 26(C)(9) was added, effective January 1, 2008,
providing the following:

[A] party need not provide discovery ofelectronically stored information

from sources that the party identifies as not reasonably accessible

because of undue burden or cost. On motion to compel discovery or for
a protective order, the party from whom discovery is sought must show
that the information is not reasonably accessible because of undue

burden or cost. If that showing is made, the court may nonetheless order
discovery from such sources if the requesting party shows good cause.

368. Ind. Trial R. 26(A)(3).

369. Ind. Trial R. 34(A)( 1 ). Rule 34(A)( 1 ) was also amended by replacing the phrase "from

which . . . intelligence can be perceived, with or without the use of detection devices" with the

phrase "from which information can be obtained, translated, if necessary, by the respondent into

reasonably usable form." Id.

370. Ind. Trial R. 34(B).

371. Id.

372. Id.

373. Ind. Trial R. 26(C).

374. Ind. Trial R. 26(C)( 1 )-(9).



2008] CIVIL PROCEDURE 921

The court may specify conditions for the discovery.375

In light of the amendments specifically providing for the discovery of
"electronically stored information," Rule 37, which governs discovery sanctions,

was amended to add a new subsection (E), providing: "Absent exceptional
circumstances, a court may not impose sanctions under these rules on a party for
failing to provide electronically stored information lost as a result of the routine,

good faith operation of an electronic information system."
376

B. Scope and Use ofDiscovery

Rule 26(B)(1) was amended to include the following:

The frequency or extent of use of the discovery methods otherwise
permitted under these rules and by any local rule shall be limited by the

court if it determines that: (i) the discovery sought is unreasonably

cumulative or duplicative, or is obtainable from some other source that
is more convenient, less burdensome, or less expensive; (ii) the party
seeking discovery has had ample opportunity by discovery in the action

to obtain the information sought or; (iii) the burden or expense of the

proposed discovery outweighs its likely benefit, taking into account the

needs of the case, the amount in controversy, the parties' resources, the
importance of the issues at stake in the litigation, and the importance of

the proposed discovery in resolving the issues. The court may act upon
its own initiative after reasonable notice or pursuant to a motion under
Rule 26(C).

377

C. Claims ofPrivilege or Protection

Rule 26(B)(5) was added to affirmatively require a "privilege log" when
documents are withheld based on a claim of privilege or other protection:

When a party withholds information otherwise discoverable under these
rules by claiming that it is privileged or subject to protection as trial

preparation material, the party shall make the claim expressly and shall
describe the nature of the documents, communications, or things not

produced or disclosed in a manner that, without revealing information
itself privileged or protected, will enable other parties to assess the

applicability of the privilege or protection.
378

Additionally, regarding inadvertently produced privileged or otherwise protected

information, Rule 26(B) now provides as follows:

If information is produced in discovery that is subject to a claim or

375. Ind. Trial R. 26(C)(9).

376. Ind. Trial R. 37(E).

377. Ind. TrialR. 26(B)(1).

378. Ind. TrialR. 26(B)(5)(a).



922 INDIANA LAW REVIEW [Vol. 41 :883

privilege ofprotection as trial-preparation material, the party making the

claim may notify any party that received the information of the claim and
the basis for it. After being notified, a party must promptly return,

sequester, or destroy the specified information and any copies it has and

may not use or disclose the information until the claim is resolved. A
receiving party may promptly present information to the court under seal
for a determination of the claim. If the receiving party disclosed the

information before being notified, it must take reasonable steps to

retrieve it. The producing party must preserve the information until the
claim is resolved.

379

379. Ind. Trial R. 26(B)(5)(b).