Author: Craig E. Pinkus
A 16 year-old at the time she listened to music through a website claiming to be “100%” lawful asked the US Supreme Court last July to review the decision of the 5th Circuit Court of Appeals against her. Petition for Writ of Certiorari, Whitney Harper, Petitioner v. Maverick Recording Company, et al. , No. 10-94 (U.S. July 16, 2010). One of thousands of young people sued for copyright infringement by downloading music, the judgment and damages awarded against her were apparently so routine for the recording industry that it waived the right to respond to the petition.
In the wake of an amicus brief filed by Harvard Law professor Charles Nesson and others, however, the Court in a simple letter from the clerk requested a response from the record industry by October 15, 2010. For most lawyers and clients, this is a request you cannot refuse.
An “innocent infringer” defense is provided by the Copyright Act. 17 U.S.C. § 504(c). It is not a complete defense but can be considered by the court as a matter in mitigation that can reduce a damage award for the acts in question. Of particular interest in the 7th Circuit is that the denial of certiorari would arguably affirm the decision in BMG Music v. Gonzalez, 430 F.3d 888, 892 (7th Cir. Ill. 2005) which makes a showing of innocent infringement in these cases a virtual impossibility.
There is naturally no guarantee the Court will grant certiorari, but the request for a response means that it is more likely than is the case with nearly all certiorari petitions. Many observers have argued for years that the flood of lawsuits against downloaders would ultimately fail as a business strategy for the music industry in the internet world. But a cert grant holds the possibility that the legal strategy will need to be revised without waiting for the business strategy to change.
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Heartland Resources, Inc.; Heartland-Red River Prospect, L.P.; David A. Stewart; Richard Stewart; and Mark Haynes (collectively "Heartland") appeal from the trial court’s entry of default judgment against Heartland and award of damages to Ambrose Bedel and Catherine Bedel (collectively "the Bedels"). Heartland presents the following restated issues for our review:
1. Whether the trial court had personal jurisdiction over Heartland.
2. Whether the trial court erred when it awarded the Bedels treble damages.
The Bedels cross-appeal and contend that the trial court erred when it did not award them attorney’s fees.
Conclusion (slip op. at 7): Affirmed and remanded with instructions.
Key Analysis (slip op. at 4, 7): When Heartland failed to allege lack of personal jurisdiction in its Trial Rule 60(B)(1) motion to set aside, it waived that issue for review on appeal . . . Rather than awarding the Bedels damages under the Act, which does not provide for treble damages, the trial court expressly based the award on Heartland’s fraud and deception as detailed in the complaint.
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Defendant-Appellant Diana Meyer appeals the trial court’s grant of summary judgment in favor of Plaintiff-Appellee National City Bank. Meyer presents three issues for our review, which we consolidate and restate as two:
I. Whether the trial court erred in granting summary judgment for National City Bank.
II. Whether Weltman Weinberg & Reis Co, L.P.A. properly represents National City Bank in this action.
Conclusion (slip op. at 5-6): We conclude that the trial court properly entered summary judgment in favor of National City Bank. We further conclude that Jeannette M. Conrad of Weltman, Weinberg & Reis, Co., L.P.A. was the attorney of record for National City Bank, as reflected in the CCS of the trial court. Affirmed.
Key Analysis (slip op. at 3, 4, 5): Although we found no published cases in Indiana, we note with approval the determinations of other states that credit card agreements are contracts, and the issuance and use of a credit card creates a legally binding agreement . . . The Agreement expressly stated that it became binding on Meyer upon her use of the account, not upon her signature to the Agreement . . . There being no genuine issue of material fact as to Meyer’s consent to be bound by the Agreement and to the balance due and owing on the account, the trial court did not err in granting summary judgment in favor of National City Bank.
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Appellants-Petitioners, The Home Telephone Company of Pittsboro, Inc. (Home) and Communications Corporation of Indiana (CCI) (collectively, Appellants), appeal an Order of the Indiana Utility Regulatory Commission (IURC), which is defended by Appellees-Respondents, Verizon North, Inc., Contel of the South, Inc. d/b/a Verizon North Systems, MCI Communications Services, Inc. d/b/a Verizon Business Services, MCIMetro Access Transmission Services LLC d/b/a Verizon Access Transmission Services, Powertel/Memphis Inc. d/b/a T-Mobile, T-Mobile Central LLC d/b/a T-Mobile, Time Warner Telecom of Indiana, L.P., and Indiana Bell Telephone Company, Incorporated d/b/a AT&T Indiana (collectively, Appellees). The IURC was granted leave to intervene. Appellants raise three issues on appeal, which we restate as follows:
(1) Whether the IURC abused its discretion when it held that Section 10 of the Phase II Settlement Agreement precluded the Variance requested by Appellants;
(2) Whether the IURC deprived Appellants of their due process rights by rendering a decision on matters outside Appellants’ requested relief; and
(3) Whether the IURC abused its discretion when it required Appellants to modify their Qualification Test by excluding the impact of rate reductions that occurred in 2006.
Conclusion (slip op. at 11): Affirmed.
Key Analysis (slip op. at 9, 10): The Appellants failed to raise the question of Section 10’s effective date before the administrative tribunal, they cannot now raise it for the first time on appeal . . . Appellants received notice and attended an evidentiary hearing with regard to their Petition for Variance and were not deprived of their due process rights . . . The IURC’s requirement to resubmit a new Qualification Test which did not incorporate the rate reductions requested by Appellants through their Variance Petition is merely a logical extension of its denial of Appellants’ Petition. An interpretation of a settlement agreement is not rulemaking.
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Richard Moore appeals from the trial court's judgment in favor of Wells Fargo Construction ("Wells Fargo"), formerly known as The CIT Group/Equipment Financing, Inc. ("CIT"), on its complaint to recover a deficiency owed under a personal guaranty. Moore raises two issues for review:
1. Whether the evidence is sufficient to support the trial court's finding that Wells Fargo conducted the sale of a repossessed excavator in a commercially reasonable fashion.
2. Whether Wells Fargo provided adequate notice to Moore of the sale of the excavator.
Conclusion (slip op. at 15): Affirmed.
Key Analysis (slip op. at 11, 14-15): We agree with Moore that I.C. 26-1-9.1-610 requires sales such as the instant one to be commercially reasonable. But the plain language of the Guaranty shows that Moore intended to waive any claim regarding the commercial reasonableness of a sale of the Excavator. Thus, under the Guaranty, Moore has waived that claim . . . We conclude that the Second Notice, containing the web address of the auction and the physical address of the auction company, satisfies the location requirement in I.C. 26-1-9.1-613(1)(E). As such, Moore's argument that the Second Notice was inadequate must fail.
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Deutsche Bank National Trust Company appeals summary judgment for Mark Dill Plumbing Company, Mark E. Neff, and Invironmental Technologies, LLC. (collectively, "Appellees"). Deutsche Bank owned a mortgage on Welch's property. Deutsche Bank filed a mortgage foreclosure action against Welch, but did not join any of the Appellees as parties. The foreclosure proceeded to judgment and Deutsche Bank purchased Welch's real estate at a Sheriff's sale. Thereafter, Deutsche Bank learned of the judgment liens belonging to Appellees, and filed an action to remove their liens. Appellees individually answered, and Neff and Invironmental counterclaimed to foreclose their liens. Deutsche Bank then filed a motion for summary judgment, claiming the Appellees' liens were subordinate to Deutsche Bank's interest and claiming Appellees' rights and equity should be cut off. Neff filed a cross-motion for summary judgment, which Dill Plumbing and Invironmental joined, that requested Deutsche Bank's equity of redemption be foreclosed and another Sheriff's sale be held to satisfy the amounts owed to Appellees. After a hearing, the court denied Deutsche Bank's motion and granted Appellees' motion.
Conclusion (slip op. at 8): We affirm the summary judgment for Dill Plumbing, Neff, and Invironmental.
Key Analysis (slip op. at 6, 8): When junior lienholders are not made parties, the foreclosure and sale cannot be enforced against them . . . Deutsche Bank foreclosed its mortgage without making Appellees parties. Deutsche Bank acknowledges Appellees' liens were properly recorded; its agent that conducted the title search presumably missed them. Accordingly, Deutsche Bank should have known about Appellees' liens. The trial court ordered the property sold to satisfy the liens belonging to Appellees and . . . the trial court reached the proper result.
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The Fort Wayne Patrolmen's Benevolent Association, Inc. ("FWPBA") and Michaeline Jones (collectively, "Appellants") appeal from the trial court's order granting summary judgment in favor of the City of Fort Wayne ("City"). Appellants raise two issues on appeal.
I. Whether Fort Wayne Police Officer Michaeline Jones was injured "while performing her duty" as a police officer pursuant to Indiana Code section 36-8-4-5 when she was injured as a result of an accident that occurred while she was driving home, after the conclusion of her shift as a police detective, in her unmarked home fleet police vehicle.
II. Whether the parties' Collective Bargaining Agreement ("CBA"), which provides that employees who suffer an injury while performing an assigned duty or who contract an illness caused by the performance of this duty shall be entitled to any and all benefits provided by Indiana Code section 36-8-4-5, creates any rights or obligations greater than those provided by the statute itself.
Conclusion (slip op. at 12): Concluding that Officer Jones was not "performing a duty" within the meaning of Indiana Code section 36-8-4-5 at the time of her accident and that the language of the CBA is clear and unambiguous and creates no contractual obligations on behalf of the City apart from those created by section 36-8-4-5, we affirm the trial court's award of summary judgment in favor of the City.
Key Analysis (slip op. at 11, 12): Officer Jones's compliance with the minimal requirements that her police radio be turned on and that she be armed was insufficient to establish that she was injured "while performing a duty" for the purposes of Indiana Code section 36-8-4-5 . . . Article 52 of the parties' CBA provides in pertinent part that "Employees who suffer an injury while performing [an] assigned duty or who contract an illness caused by the performance of [a] duty shall be entitled to any and all benefits provided by I.C. 36-8-4-5." Nothing in the plain language of the CBA creates any rights beyond those provided by Indiana Code.
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UNPUBLISHED
For the underlying proceedings in the trial court, appellant Carolynda Applebury-Todosichuk was represented by local Indiana counsel and an out-of-state attorney granted pro hac vice status by the trial court. Although out-of-state counsel failed to seek permission to proceed pro hac vice on appeal, both attorneys signed Applebury-Todosichuk’s Notice of Appeal. Out-of-state counsel then filed an Appellant’s Brief bearing only her signature; local counsel did not sign the brief. Here, we are faced with the threshold question of whether we may even consider the brief.
Conclusion (slip op. at 2): We cannot consider the merits of a brief improperly filed by an attorney not licensed to practice law in Indiana and not granted temporary permission to proceed in this Court. Because Applebury-Todosichuk has failed to timely file an appellate brief pursuant to Indiana Appellate Rule 45(B), we dismiss this appeal.
Key Analysis (slip op. at 5): Although we will exercise our discretion to reach the merits when violations are comparatively minor, if the parties commit flagrant violations of the Rules of Appellate Procedure we will hold issues waived, or dismiss the appeal . . . This is a flagrant violation of the Rules of Appellate Procedure, and we therefore dismiss the appeal
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FISHER, J.
Kooshtard Property VIII, LLC (Kooshtard) challenges the final determination of the Indiana Board of Tax Review (Indiana Board) affirming the 2002 assessment of its real property. Kooshtard presents one issue on appeal, which the Court restates as: whether the Indiana Board erred in affirming the application of only one negative influence factor of 50% to Kooshtard’s land.
Conclusion (slip op. at 7): The Indiana Board’s final determination is affirmed.
Key Analysis (slip op. at 6-7): Kooshtard has done nothing more than assert that the applicable neighborhood valuation form "recommends" a negative influence factor to account for its land’s size and shape. Kooshtard, however, was required to present a calculation which quantified (and would have possibly supported) the alleged loss in value to its property due to that condition. Consequently, the Indiana Board did not err when it held that Kooshtard did not make a prima facie case that it was entitled to a second negative influence factor of 50% to account for its land’s size and shape.
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Caesar's Riverboat Casino, LLC (Caesar's) filed suit in Harrison Circuit Court alleging that Genevieve M. Kephart (Kephart) failed to provide funds to cover checks written while gambling at Caesar's establishment. Kephart countersued alleging that Caesar's took advantage of her pathological gambling condition to unjustly enrich itself. Caesar's filed a Trial Rule 12(B)(6) motion on Kephart's counterclaim. The trial court denied Caesar's motion and Caesar's appeals.
Conclusion (slip op. at 2): Concluding that Indiana's common law does not provide Kephart a private cause of action in negligence against Caesar‟s in the form of a counterclaim, we reverse.
Key Analysis (slip op. at 14, 15): While Caesar's actions in allowing her to write six checks totaling $125,000 are extremely concerning and should be examined . . . Kephart has a responsibility to protect herself from her own proclivities and not rely on the casino to bear sole responsibility for her actions. . . One may argue that the statutory framework does not provide enough protections for compulsive gamblers, but that argument is more properly addressed to the (Indiana Gaming) Commission or to the General Assembly.
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Massood Jallali appeals the trial court's denial of his motion to dismiss and grant of partial summary judgment in favor of the National Board of Osteopathic Medical Examiners ("NBOME") on count I of a complaint NBOME filed against Jallali. The sole restated issue is whether the trial court should have dismissed NBOME's lawsuit on comity grounds.
Conclusion (slip op. at 9): The trial court abused its discretion in denying Jallali's motion to dismiss NBOME's Indiana lawsuit on comity grounds. We reverse the denial of the motion to dismiss, which also necessarily results in reversal of the partial grant of summary judgment in favor of NBOME, and remand for the trial court to dismiss NBOME's complaint.
Key Analysis (slip op. at 8, 9): The subject matter of NBOME's Indiana action, seeking to prohibit Jallali from accessing COMLEX-USA exams and related information, clearly is precisely the same as at least one of the issues being litigated in the Florida lawsuit . . . Allowing both the Florida lawsuit and the Indiana lawsuit to proceed to completion potentially could expose Jallali (and NBOME for that matter) to two directly contradictory results. That would be untenable . . . We conclude, given the substantial similarity between the parties, subject matter, and remedies sought in both the Indiana and Florida lawsuits, the trial court here ought to have exercised its discretion in favor of deferring to the already-pending Florida litigation in the interests of comity.
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Appellant-Defendant, Gulf Stream Coach, Inc. (Gulf Stream), appeals from the trial court’s denial of its motion to transfer venue on a claim of breach of warranty by Appellees-Plaintiffs, Joseph and Dawn Cronin (the Cronins).
Conclusion (slip op. at 8): We conclude that the trial court erred by denying Gulf Stream’s motion to transfer venue, and we remand this cause to the trial court with instructions to transfer venue to Elkhart County, pursuant to Indiana Trial Rule 75(A)(4).
Key Analysis (slip op. at 7): When a party moves a chattel to a county, whether from out-of-state or from another Indiana county, solely for purposes of litigation, that county does not become the county where the chattel is "regularly located and kept" under Rule 75(A)(2) and therefore is not a preferred venue under Rule 75.
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Gloria Murray et al. ("the Plaintiffs") brought suit against the City of Lawrence ("the City"), the Lawrenceburg Conservancy District ("the Conservancy District"), and Indiana Gaming Company, L.P. ("Indiana Gaming") (collectively "the Defendants"), claiming ownership of a certain portion of land being used by the Defendants. The Defendants filed a motion for a judgment on the pleadings, which the trial court denied. The trial court then denied the Plaintiffs' demand for a jury trial. The Plaintiffs now bring this interlocutory appeal and claim that the trial court erred in denying their demand for a jury trial. The Defendants cross-appeal and claim that the trial court erred in denying their motion for judgment on the pleadings.
Conclusion (slip op. at 24): The Defendants' cross-appeal is properly before us, as our earlier decision to decline to accept interlocutory jurisdiction is not final, and we now, under these limited facts and circumstances, choose to reconsider our earlier decision to decline jurisdiction over the Defendants' appeal from the trial court's certified interlocutory order. Considering the merits of the Defendants' cross-appeal, we conclude that the Plaintiffs' were not required to bring a claim for inverse condemnation, because inverse condemnation is not an exclusive remedy and because ownership of the Disputed Property has not yet been determined . . . Lastly, the essential features of the Plaintiffs lawsuit were not equitable, and the entire case is therefore not drawn into equity. On remand, the trial court should resolve the timeliness of the Plaintiffs' claims; sever the timely-filed distinct, legal claims; and grant the Plaintiffs' demand for a jury trial as to these claims.
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Bay Bridge LLC ("Bay Bridge") filed a complaint in Lake Superior Court to quiet title to a parcel of real estate commonly known as 149th and Colfax, Cedar Lake, Indiana ("the real estate") and named Atul Kumar ("Kumar") as a defendant. Kumar had purchased the real estate at a tax sale but failed to record his deed. The trial court granted Bay Bridge’s motion for summary judgment. Kumar appeals and raises several issues. However, we address only the following dispositive issue: whether Bay Bridge was a bona fide purchaser of the real estate at issue.
Conclusion (slip op. at 7): The trial court properly granted Bay Bridge’s motion for summary judgment on its complaint to quiet title. Affirmed.
Key Analysis (slip op. at 6, 7): Kumar failed to record his tax deed as required by Indiana Code section 32-21-4-1, and it remained unrecorded until after Bay Bridge filed its complaint to quiet title. Therefore, Bay Bridge did not have constructive notice of Kumar’s interest in the real estate at issue . . . With regard to actual notice, prior to purchasing the property, Bay Bridge requested a title search, which found of record no lis pendens, no certificate of tax sale, no tax deed, nor any other record interest of Atul Kumar in the property purchased by Bay Bridge. Moreover, Kumar did not designate any evidence to the trial court which would establish that Bay Bridge had actual notice of his claimed interest in the property.
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Donald L. Shaum and Nancy V. Shaum appeal the trial court’s grant of summary judgment to Progressive Engineering, Inc., and Dennis Gobble. The Shaums raise seven issues, which we consolidate and restate as whether the trial court erred by granting summary judgment and determining that the Shaums’ claim against Progressive and Gobble was filed outside of the statute of limitations.
Conclusion (slip op. at 8): We affirm the trial court’s grant of summary judgment to Progressive Engineering and Gobble.
Key Analysis (slip op. at 6, 7): For an action to accrue, it is not necessary that the full extent of the damage be known or even ascertainable, but only that some ascertainable damage has occurred . . . We hold that the two-year statute of limitations applies here as this is a claim for professional malpractice. Further, even if the six-year statute of limitations of Ind. Code § 34-11-2-7 applied, we conclude that the Shaums’ action against Progressive Engineering and Gobble was untimely . . . The Shaums should have known of the land dispute and discovered the survey error in 1997 when McClure constructed his residence on the disputed property.
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Judy Whitaker and John Davis ("Appellants") appeal the trial court’s denial of their second verified petition for contempt against the Town of Cloverdale Town Council ("Town Council"). The Appellants raise two issues, which we consolidate and restate as whether the trial court abused its discretion by not holding the Town Council in contempt.
Conclusion (slip op. at 6): We affirm the trial court’s denial of the Appellant’s second verified petition for contempt.
Key Analysis (slip op. at 6): We interpret [the] order as simply granting the parties’ motion to dismiss with prejudice, and not as an order itself enjoining the Town Council from violating the Open Door Law. Moreover, the trial court did not incorporate the terms of the settlement agreement in its order . . . We cannot say that the March 20, 2007 order of dismissal clearly enjoins the Town Council from violating the Open Door Law or supports a finding of contempt in this case.
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Kenneth E. Smith, Jr., Cathy Smith, and Jeffery Harbrecht appeal the trial court’s grant of summary judgment to Gerhard King and Christine King. The Smiths and Harbrecht raise one issue, which we restate as whether the trial court erred when it determined that the Kings did not owe a duty to Kenneth.
Conclusion (slip op. at 12): We affirm the trial court’s grant of summary judgment to the Kings.
Key Analysis (slip op. at 12): Because Harbrecht had not yet completed the stairs from the residence’s first floor to the basement, leaving an open hole in the floor, Gerhard King nailed a plywood sheet against the opening. This one instance of a safety precaution taken by the Kings does not raise a jury question as to whether a duty was assumed.
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Shepard, Chief Justice.
The Tax Court ruled in an earlier case addressing the share of Miller Brewing Company's income that is taxable by Indiana. In this case the Tax Court held that its previous ruling did not bar the Department of Revenue from raising new contentions in support of a different method of allocation of income to the state.
Conclusion (slip op. at 11): The Tax Court's denial of Miller's motion for summary judgment is affirmed.
Key Analysis (slip op. at 10): Ordinarily a new argument is insufficient to reopen an issue of law already determined as between two parties. We think, however, that in tax cases that principle should be relaxed. If failure to raise an omitted argument can forever preclude the Department from relitigating a legal issue, the state is in effect barred by the omission of its agents who generally do not bind the government by a mistake of law.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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In this appeal, we are asked once again to consider what constitutes a joint venture. DLZ Indiana, LLC, ("DLZ") appeals from partial summary judgment in favor of Greene County, Indiana ("the County") on the County’s second-amended complaint alleging breach of contract. DLZ presents a single issue for our review, namely, whether the trial court erred when it concluded that DLZ was engaged in a joint venture with United Consulting Engineers, Inc. ("United") to provide architectural services for the County ("the Project").
Conclusion (slip op. at 14): We hold that United and DLZ were not engaged in a joint venture as a matter of law. We reverse the entry of summary judgment for the County and instruct the trial court to enter partial summary judgment for DLZ on this issue.
Key Analysis (slip op. at 13, 14): In sum, the Agreement is unambiguous with respect to whether United and DLZ were doing business as a joint venture. First, there is no evidence that they exercised joint or mutual control over the Project, which is an essential element . . . Second, and of equal significance, there is no evidence within the Agreement that United and DLZ shared profits . . . And finally, even if the Agreement were ambiguous, the designated, extrinsic evidence also demonstrates that the essential elements of joint or mutual control and shared profits are missing.
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