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Thursday, January 12, 2017

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (2):

NFP civil decisions today (0):

In Paul and Michelle Riley v. AAA Automotive, LLC, d/b/a 3A Automotive, a 12-page opinion, Judge Bailey writes:

Paul and Michelle Riley (“the Rileys”) appeal a judgment entered upon an arbitrator’s award in favor of AAA Automotive, LLC d/b/a 3A Automotive (“3A Automotive”). The Rileys present the sole, restated issue of whether the trial court erred in refusing to vacate the award, which consisted almost entirely of attorney’s fees, apparently itemized in an ex parte document submitted to the arbitrator but not provided to the Rileys in accordance with Alternative Dispute Resolution Rule 3.4(B) or provided to the trial court. We reverse. * * *

On appeal, the Rileys concede that they did not oppose arbitration after mediation could not be timely scheduled or was unsuccessful. However, neither party provided this Court with an agreement defining the scope of arbitration. The Chronological Case Summary does not reflect the filing of an agreement to arbitrate. Even assuming a proper arbitration order, without an agreement, we cannot definitively discern whether the arbitrator exceeded his authority as to substantive provisions. However, the lack of impartial and fair proceedings is evident. The arbitrator accepted an ex parte document upon which he apparently rested the award. The Rileys’ lack of notice and opportunity to respond is readily apparent from the argument and admissions made by the attorney for 3A Automotive at the motion to correct error hearing:

I did not give those [attorney fee’s invoices] to the Defendant because I feel like they’re Work Product and protected by Attorney/Client Privilege because they actually have my strategies inside of them. No objection was made that those details weren’t there. But the affidavit, which is attached – I can – yeah, I don’t have a copy of the affidavit. But in arbitration, an affidavit where I swore that all my attorney fees were correct and accurate was presented to the arbitrator and to the Defendant. And I also presented the arbitrator with my detailed invoices with a claim that they were Attorney/Client Privilege and I wasn’t going to turn [them] over to the Defendant. And there were objections during the arbitration made that I didn’t turn those over to anyone. And the arbitrator looked at my invoices and the hours that I spent on it. My rate is very reasonable. It’s too reasonable in some cases.
(Tr. at 31.) Attorney Obermeyer went on to claim that his fee was “fair” but also concede that the fees “still got out of hand.” (Tr. at 31-32.) Subsequent commentary indicated that he claimed entitlement to fees to obtain a copy of the Carfax report, something relevant to his own client’s defense of the counterclaim for fraud.

There is no evidence of an arbitration agreement in the record and, hence, no evidence that there was a meeting of the minds concerning the scope and terms of the arbitration. Thus, the arbitration proceedings were for naught, and the judgment on the arbitration award must be vacated.[6]

The trial court erred in entering judgment upon the purported arbitration award. Reversed.
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[6] As a cautionary note, alternative dispute resolution has reached full bloom since it was first recognized by our Indiana Supreme Court. Nevertheless, absent a contract, our courts are to remain open – pursuant to Article 1, Section 12 of the Indiana Constitution – and participation in alternative dispute resolution is still voluntary. While we encourage voluntary settlement and resolution, we do so only after full disclosure of the nature of the alternative dispute method selected and its consequences to the litigants. It is incumbent upon the mediator or arbitrator to document the agreement to mediate or arbitrate in the Chronological Case Summary. See A.D.R. 1.8. And, moreover, where an individual has been selected first as a mediator, we question the propriety of that individual continuing to participate as an arbitrator, when he or she has first participated with the same litigants in a failed mediation.

In In the Matter of: S.G., L.G., D.G., & A.W. and S.S. (Mother) v. Indiana Department of Child Servcies, and Child Advocates, Inc., a 19-page opinion, Judge Riley writes:
Mother challenges the trial court’s order that DCS need not undertake reasonable efforts to reunify her with the Children. In general, once a child has been declared a CHINS, DCS is legally required to “make reasonable efforts to preserve and reunify families . . . to make it possible for the child to return safely to the child’s home as soon as possible.” Ind. Code § 31-34-21-5.5(b)(2). However, such reasonable efforts at reunification “are not required if the court finds . . . [that] [t]he parental rights of a parent with respect to a biological or adoptive sibling of a child who is a [CHINS] have been involuntarily terminated by a court.” I.C. § 31-34-21-5.6(b)(4) (No Reasonable Efforts Statute). In the trial court’s Order adjudicating the Children to be CHINS, it found that reasonable efforts are not required based on the fact that Mother’s parental rights to M.G. and A.G. were previously terminated. Mother now contends that “[t]his [N]o [R]easonable [E]fforts [S]tatute is unconstitutional as applied to [her] and is also void for vagueness.” (Appellant’s Br. p. 12) (internal quotation marks omitted). In the alternative, even if we find that the No Reasonable Efforts Statute is constitutional, Mother asserts that the trial court abused its discretion by applying it in this case. * * *

Based on the foregoing, we conclude that the No Reasonable Efforts Statute is not unconstitutional as applied to Mother, and the trial court did not abuse its discretion by granting DCS’ request to forego reasonable efforts.

NFP criminal decisions today (1):

Michaeel Gonser v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 12, 2017 11:10 AM
Posted to Ind. App.Ct. Decisions