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Wednesday, December 12, 2012

Ind. Decisions - Supreme Court issues three opinions (perhaps four?) this afternoon, all related [Updated with 4th opinion]

In Margaret Kosarko v. William A. Padula, Administrator of the Estate of Daniel L. Herndobler, Deceased, a 9-page, 5-0 opinion, Chief Justice Dickson writes:

The plaintiff in this case, Margaret Kosarko, challenges the trial court's denial of her motion for prejudgment interest following a jury verdict awarding her monetary damages. We reverse and hold that the Tort Prejudgment Interest Statute abrogates and supplants the common law prejudgment interest rules in cases covered by the statute. * * *

We hold that the Tort Prejudgment Interest Statute abrogates and supplants the common law prejudgment interest rules in cases covered by the statute and also hold that the plaintiff's motion for prejudgment interest should have been evaluated as provided in the statute, and not on abrogated common law. We remand the case to the trial court for reconsideration of the motion accordingly. On remand, the trial court has broad discretion to determine whether to award prejudgment interest, what interest rate to use, what time period to use, and whether to calculate interest on the full $210,000 awarded by the jury, or on the amount of $100,000, representing insurance liability coverage limits, that was deposited with the clerk and released to Kosarko. The trial court's discretion is restricted only by the limits expressly enacted by the legislature in the TPIS.

In Jacqueline Wisner, M.D. and The South Bend Clinic, L.L.P. v. Archie L. Laney, a 16-page, 5-0 opinion, Justice David writes:
In this case, the jury returned a verdict for plaintiff in the amount of $1.75 million. The issues presented focus on two separate, but significant, matters.

The first is whether the trial court erred by denying defendants’1 motion for a new trial based upon the cumulative effect of plaintiff’s counsel’s alleged unprofessional conduct during the trial. The second issue is whether the trial court erred when it refused to grant plaintiff prejudgment interest.

We affirm the trial court, as did the Court of Appeals, on the denial of defendants’ motion for a new trial. Under the circumstances of this case, we defer to the judgment of the trial court. However, this decision does not lesson our dissatisfaction and frustration with the behavior of counsel during the trial, particularly plaintiff’s counsel.

Professionalism and civility are not optional behaviors to be displayed only when one is having a good day. Professionalism and civility are the mainstays of our profession and the foundations upon which lawyers practice law. The public expects it. Fellow lawyers expect it. Our profession demands it.

Further, we affirm the trial court’s decision to deny the discretionary award of prejudgment interest. * * *

[ILB: See ftnote 3 on p. 8 "The acrimony between plaintiff’s and defendants’ counsel did not end at the trial. During the June 2010 hearing on the motion to correct error, the poor behavior began anew. Mr. Murphy accused Mr. Schaffer of bragging about his numerous sanctions having no effect on him, describing his conduct as unprofessional and making gestures during the trial, while Mr. Schaffer called Mr. Murphy an “outright liar” on two occasions."]

Although plaintiff’s counsel’s behavior was most troubling, both attorneys should have acted in a manner more becoming of our profession. The duty to zealously represent our clients is not a license to be unprofessional. Here the trial court determined that the conduct of counsel did not prevent the jury from rendering a fair and just verdict. The trial court did not abuse its discretion in denying defendants’ counsel’s request for a new trial. We also affirm the trial court denial of plaintiff’s request for prejudgment interest. Laney’s 2005 letter did not meet the requirements for awarding of prejudgment interest. The awarding of prejudgment interest is not mandatory and is left to the discretion of the trial court. The trial court was most certainly within its proper discretion in declining such an award.

In Hassan Alsheik v. Alice Guerrero, Individually and as Administratrix of the Estate of I.A., Deceased, a 6-page opinion, Justice David writes:
In this companion case to Wisner v. Laney, Inman v. State Farm, and Kosarko v. Padula, all decided today, we discuss the issue of prejudgment interest, specifically the statutory requirements of Indiana Code section 34-51-4-6, and the discretionary nature of an award of prejudgment interest. * * *

We summarily affirm the Court of Appeals opinion relating to the second autopsy, the expert witness, and the admission of photographs. Its analysis was detailed and correct. We reverse the trial court’s decision to deny Guerrero prejudgment interest based upon a defective settlement letter. As we have held, Guerrero’s settlement letter did comply with Indiana Code section 34-51-4-6. However, the award of prejudgment interest is neither automatic nor required, and is left to the discretion of the trial court. We remand with instructions to the trial court to determine whether or not Guerrero should be entitled to prejudgment interest.

ILB: Inman v. State Farm, mentioned in the first line of Alsheik, above, has not been posted by the Court yet.

[Updated at 3:00 PM] The Inman opinion has now been posted.

In Kathy Inman v. State Farm Mutual Automobile Insurance Company, a 9-page opinion, Chief Justice Dickson writes:

The plaintiff, Kathy Inman, challenges the trial court's denial of her motion for prejudg-ment interest in the amount of $3,616.44 pursuant to Indiana Code Chapter 34-51-4. Inman's appeal raises two questions regarding the scope of the Tort Prejudgment Interest Statute ("TPIS"), Ind. Code §§ 34-51-4-1 to -9: whether the TPIS applies to an action by an insured against an insurer to recover benefits under the insured's underinsured motorist ("UIM") policy; and whether prejudgment interest can be awarded in excess of the policy limits set forth in an insured's UIM policy. Having granted transfer, we hold that the TPIS does apply to UIM coverage disputes because they are properly considered "civil actions arising out of tortious conduct" as required by Indiana Code Section 34-51-4-1. We also hold that, because prejudgment interest is a collateral litigation expense, it can be awarded in excess of an insured's UIM policy limits. We conclude, however, that Inman is not entitled to prejudgment interest because the trial court acted within its discretion when it denied her request for prejudgment interest. * * *

Conclusion. Through its passage of the TPIS, the legislature has enacted a scheme which affords trial courts wide-ranging discretion to award prejudgment interest in civil actions arising out of tortious conduct, a broad category of cases which includes UIM coverage disputes. The trial court alone has discretion to determine whether to award prejudgment interest and what time period and interest rate to use in its computation. This discretion is not limited by insurance policy limits, the good-faith conduct of the parties, or the common law.[7] Rather, it is limited only by the statutory requirements enumerated in Indiana Code Sections 34-51-4-1 to -9. Because the trial court here acted within its statutory discretion in denying Inman's request for prejudgment interest, the judgment of the trial court is affirmed.
___________
[7] In another case handed down today, Kosarko v. Padula, ___ N.E.2d. ___, ___ (Ind. 2012), we hold that the TPIS "abrogates and supplants the common law rules governing the availability of prejudgment interest in cases covered by the statute." Kosarko, ___ N.E.2d at ___. Thus, in cases where pre-judgment interest is requested under the TPIS, the common law Roper standard, requiring damages to be complete and readily ascertainable in order for prejudgment interest to be awarded, N.Y., Chi. & St. Louis Ry. Co. v. Roper, 176 Ind. 497, 507, 96 N.E. 468, 472 (1911), is irrelevant to the trial court's determination.

Posted by Marcia Oddi on Wednesday, December 12, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - "Michigan Appeals Court to Consider Anonymity for Blogger Who Criticized Cooley Law School"

Interesting ABA Journal post on a Michigan case, which is somewhat reminiscent of the Miller v. Junior Achievement case (recent ILB post here), with its trial court order compelling the Indianapolis Star to identify an anonymous online commenter.

A quote from the ABA Journal post:

Lawyers representing the blogger asked the appeals court in a brief (PDF) to adopt a “developing consensus” standard when courts consider requests to unmask anonymous speakers. The standard requires the court to:

• Provide notice to the anonymous speaker and an opportunity to defend secrecy.

• Require the plaintiff to identify the statements alleged to have violated his rights.

• Review the complaint to ensure it states a cause of action.

• Require evidence supporting the claims.

• Weigh the potential harm to the plaintiff from being unable to proceed with the harm to the defendant from losing anonymity.

“The court can thus ensure that a plaintiff does not obtain an important form of relief—identifying its anonymous critics—and that the defendant is not denied important First Amendment rights unless the plaintiff has a realistic chance of success on the merits,” according to the brief.

Posted by Marcia Oddi on Wednesday, December 12, 2012
Posted to Courts in general

Ind. Decisions - Supreme Court issues disciplinary ruling re misuse of trust account

In the matter of Jacob P. Dunnuck is a 2-page unanimous order approving a a "Statement of Circumstances and Conditional Agreement for Discipline" stipulating agreed facts and proposed discipline. From the order:

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 1.15(a), which prohibits failure to hold property of a client separate from lawyer’s own property.

Discipline: The Court, having considered the submission of the parties, now approves the following agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of six months, beginning January 21, 2013, with 60 days actively served and the remainder stayed subject to completion of at least one year of probation.

Posted by Marcia Oddi on Wednesday, December 12, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Ponziano Construction Services, Inc. v. Quadri Enterprises, LLC , a 15-page opinion, Judge Bailey writes:

Ponziano Construction Services, Inc. (“Ponziano”) appeals the trial court’s decision granting partial recovery on its breach of contract claim against Quadri Enterprises, LLC (“Quadri”), denying foreclosure on its mechanic’s lien, and granting partial attorney’s fees based on its mechanic’s lien. We reverse the trial court’s award of $16,000 on the Contract and its denial of Ponziano’s request to foreclose on its mechanic’s lien; affirm the trial court’s award of $8,000 in attorney’s fees to Ponziano; and remand with instructions to the trial court to enter judgment in favor of Ponziano for $48,483.43, order sale of the property subject to the $45,549.43 lien, and determine the existence, extent, and outcome of a potential priority dispute between Ponziano and Wells Fargo.

Ponziano raises four issues for our review, which we consolidate and restate as:
I. Whether the trial court erred in awarding Ponziano only $16,000 on the April 30, 2009 contract (“the Contract”);
II. Whether the trial court erred in denying foreclosure on Ponziano’s mechanic’s lien; and
III. Whether the trial court abused its discretion in awarding Ponziano only $8,000 in attorneys’ fees. * * *

The trial court erred when it awarded Ponziano only $16,000 on the Contract, and when it denied Ponziano’s request to foreclose on its mechanic’s lien. The trial court did not abuse its discretion when it awarded Ponziano $8,000 in attorney’s fees.

NFP civil opinions today (1):

Jason Wilson v. Kelly (Wilson) Myers (NFP)

NFP criminal opinions today (3):

Christopher A. Merder v. State of Indiana (NFP)

James Fusco v. State of Indiana (NFP)

Tymon Brown v. State of Indiana (NFP)

In Earl McClendon v. State of Indiana (NFP), an 8-page opinion, Judge Riley writes:

McClendon argues on appeal that the trial court abused its discretion when it denied his motion requesting the return of his firearm. He asserts that the trial court’s decision violates I.C. § 35-47-3-2(b), which requires the trial court to return confiscated firearms following the final disposition of a cause. In response, the State argues that the trial court’s decision was proper because: (1) McClendon was convicted for the misuse of a firearm; and (2) McClendon is an alcohol abuser and is thus no longer entitled to possess the firearm. * * *

In sum, we find that the State did not prove that McClendon misused a firearm for purposes of I.C. § 35-47-3-2(b) or is an alcohol abuser for purposes of I.C. § 35-47-2-7(b). Accordingly, we conclude that the trial court abused its discretion and was instead required to return McClendon’s firearm as stated in I.C. § 35-47-3-2(b). We reverse the trial court’s decision and remand with instructions to return McClendon’s firearm.

Posted by Marcia Oddi on Wednesday, December 12, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Lawsuit to clean up Indiana voter rolls can proceed"

From the AP:

INDIANAPOLIS — A conservative watchdog group's bid to force Indiana to clean up its voter registration rolls can proceed.

The state's motion to dismiss a lawsuit filed by Judicial Watch was rejected Monday by U.S. District Judge William Lawrence.

The Washington, D.C.-based group alleges 2010 general election data shows 12 mostly rural counties had more people registered to vote than were eligible. Those counties are Brown, Crawford, Franklin, Hancock, Newton, Orange, Scott, Spencer, Tipton, Warren, Warrick and Union.

Here is the 11-page, Dec. 10, 2012 ruling by federal Judge Lawrence in Judicial Watch v. J. Bradley King.

The Election Law Blog heading for news of this ruling is "True the Vote NVRA Section 8 Claim Against Indiana Survives Motion to Dismiss," which says it all for the election law maven.

Posted by Marcia Oddi on Wednesday, December 12, 2012
Posted to Ind Fed D.Ct. Decisions