Indiana Appeals

Court of Appeals Finds, Absent a Written Agreement by the Parties, Trial Courts have no Discretion to Grant a Jury Trial after the Time for Such Demand has Elapsed

In Daugherty v. Robinson Farms, Inc., the Court of Appeals resolved the apparent conflict between Trial Rules 6(B) and 38(D).  Although Trial Rule 6(B) seems to allow the Court, at its discretion, to allow a belated demand for a jury trial, the more specific rule, 38(D), allows for such untimely demand only upon written consent of the parties. As such, without a written agreement agreeing to a jury trial, a trial court is without discretion to grant an untimely jury demand. 

Court of Appeals Holds no Hearing Necessary Prior to Issuing Default Judgment as Sanction for Failing to Comply with Discovery Order

In Mallard's Pointe Condominium Assoc, Inc. v. L & L Investors Group, LLC, the Court of Appeals determined that a trial court need not hold a hearing prior to entering in default judgment as a sanction for failing to comply with a Court Discovery Order. 

As Trial Rule 37 is silent as to whether a hearing is required before a court may sanction by default judgment, the court turned to case law.  The court examined previous Indiana case law finding that Trial Rule 55 governed the procedure for entering default judgments as a discovery sanction but determined that under the present form of Trial Rule 37 a court may enter default judgment with a finding that the remedy is "just." 

Indiana Court of Appeals Finds Interest Allowable on Delinquent Marital Dissolution Payments

In Zoller v. Zoller, the Indiana Court of Appeals once again found that when the property in a marital estate is divided, the amount one spouse is ordered to pay the other is a money judgment.  Money judgments, including sums ordered to be paid in a dissolution decree, accrue interest from the date the judgment becomes presently due.  When the sum ordered to be paid from one spouse to the other in a dissolution decree is immediately payable, the judgment accrues interest from the date the judgment is entered; regardless of whether the Court has included interest in its order.

Trial Courts may Consider Entirety of Pages Designated in Summary Judgment Proceedings

In Flip v. Block, the Court held that when a party moving for Summary Judgment designates a page of a deposition (or other evidentiary means) but only uses a portion of that page in its Memorandum in Support of Summary Judgment, the Court may, nevertheless, consider the entire page.  The trial court is not bound to considering only the specific sentences cited by the party in the Memorandum.  As such, Plaintiffs who failed to file a timely response or designation of materials to Defendants' Summary Judgment motion were permitted to ask the court to consider all pages designated by Defendants to prove the existence of a material issue of fact.   

Indiana Supreme Court Defends Modified Impact Rule

In Atlantic Coast Airlines v. Cook, the Indiana Supreme Court defended and reaffirmed Indiana's modified impact rule in claims for negligent infliction of emotional distress.  The Court held, "[i]t our view that the requirements under Indiana’s rule are modest and that a less restrictive rule would raise the potential for a flood of trivial suits, pose the possibility of fraudulent claims that are difficult for judges and juries to detect, and result in unlimited and unpredictable liability. We therefore reaffirm that Indiana’s impact rule continues to require a plaintiff to demonstrate a direct physical impact resulting from the negligence of another."

The Court found that inhaling the cigarette smoke of another and feeling the vibrations of another's stomping feet were not sufficient impact to sustain a claim. 

The Court also upheld its "bystander rule" under which, where the direct impact test is not met, a bystander may nevertheless establish negligent infliction of emotional distress by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild or sibling caused by defendant's negligent or otherwise tortious conduct.