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UNPUBLISHED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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Appellant-Plaintiff, Brad Lawson (Lawson), appeals the trial court's judgment in favor of Appellee-Plaintiff, Rodney Hale d/b/a R.H. Equipment (Hale), on Lawson's Complaint arising from the sale of a tractor. Lawson presents four issues for our review, which we consolidate and restate as the following three issues:
(1) Whether the trial court erred in ruling that Hale had not violated the Indiana Deceptive Consumer Sales Act, Ind. Code §§ 24-5-0.5-1 to 24-5-0.5-12;
(2) Whether the trial court erred in ruling that Hale effectively disclaimed the implied warranty of merchantability; and
(3) Whether the trial court erred in ruling that Lawson had failed to establish the elements of common law fraud.
Conclusion (slip op. at 14): We conclude that the trial court did not err in entering judgment in favor of Hale on Lawson's claims for violation of the IDCSA and for breach of the implied warranty of merchantability. However, the trial court did err by entering judgment in favor of Hale on Lawson's claim for fraud. Therefore, as to that claim only, we reverse the trial court's judgment and remand this cause with instructions to enter judgment in favor of Lawson and to determine Lawson's damages.
Key Analysis (slip op. at 8-9, 13-14): A person is a "supplier" with regard to those consumer transactions which are at least indirectly connected with the ordinary and usual course of the person's business, vocation or occupation . . . In this case, the sale of the tractor to Lawson was at least indirectly connected with the ordinary and usual course of Hale's business . . . Despite several inquiries by Lawson about any problems with the tractor, Hale failed to disclose the cracked engine block . . . This strikes us as a textbook case of fraud.
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Appellant-plaintiff South Central Bank of Daviess County (South Central) appeals the trial court's order denying South Central's motion for partial summary judgment and granting appellee-defendant Lynnville National Bank's (Lynnville) motion for summary judgment on South Central's complaint against Lynnville. Specifically, South Central alleges that the trial court erred by concluding that Lynnville was entitled to refuse to pay a cashier's check that it had issued.
This appeal presents an issue of first impression in Indiana, namely, under what circumstances—if any—an issuing bank may properly refuse to pay a cashier's check.
Conclusion (slip op. at 18-19): In sum, we hold that (1) Lynnville wrongfully refused to pay the cashier's check; (2) South Central was a holder in due course of that check, meaning that Lynnville's defenses are extremely limited; (3) none of the applicable defenses are available to Lynnville; and (4) South Central did not fail to mitigate its damages. Therefore, we reverse and remand with instructions to enter final judgment in South Central's favor in the amount of the original cashier's check plus expenses, interest, and consequential damages, if any, to be determined by the trial court.
Key Analysis (slip op. at 11, 14): Only under certain, very specific circumstances is a bank entitled to stop payment on a cashier's check: first, if the bank suspends payments—becomes insolvent; second, if the bank has its own defense—as distinguished from its customer's defense—against the person entitled to enforce the instrument; third, if the bank has a reasonable doubt about the identity of the person demanding payment; and finally, if the payment is prohibited by law . . . Lynnville's obligation to pay was clear and it was able to pay, but it refused payment on the check as an accommodation to the Fishers, wh had no right to make that request . . . Between the limitations of Ind. Code Sections 26-1-3.1-411 and 26-1-3.1-305, it could not be clearer that Lynnville was not entitled to stop payment on the cashier's check.
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Babes Showclub, Jaba, Inc., and James B. Altman (collectively, "Appellants") appeal the denial of their motion to dismiss the complaint filed by Patrick Lair and Lisa Lair (collectively, "the Lairs") for injuries that Patrick, an Indianapolis police officer, allegedly suffered at the hands of a Babes Showclub patron while responding to a complaint on the club's premises. Appellants contend that the Lairs' claims are barred by Indiana's Fireman Rule.
Conclusion (slip op. at 27-28): We conclude that the Lairs' general negligence, negligent security, and common law dram shop claims are barred by the Fireman's Rule. We reverse the denial of Appellants' motion to dismiss.
Key Anlaysis (slip op. at 26-27): In Woodruff, our supreme court determined that a landowner owes no duty to a firefighter "except that of abstaining from any positive wrongful act which may result in his injury . . . Here, the Lairs have not alleged that Appellants committed any positive wrongful act that resulted in Patrick's injuries. If anything, the "positive wrongful act" in this case was committed by the patron who allegedly assaulted Patrick.
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Shepard, Chief Justice.
The City of South Bend now owns much of the land where Studebaker Corp. once manufactured automobiles. It has sued Cooper Industries, LLC and others for environmental damage done to the site. In this appeal, the questions are whether the applicable statute of limitation bars these claims and whether appellant Cooper Industries is the corporate successor to Studebaker such that it may be liable on these environmental claims. We hold that the statute of limitation bars the City's common law claims, that its claim under the Environmental Legal Action statute accrued at the time the statute became effective and thus is not barred, and that Cooper is the corporate successor to Studebaker for these purposes.
Conclusion (slip op. at 32): We affirm the trial court's order and remand for further proceedings on the merits of the ELA claim.
Key Analysis (slip op. at 22, 30, 31): Because we understand the ELA as addressing the issue of "brownfields," that the legislature did not intend to bar cities from bringing these actions, and that the statute of limitation did not run until the cause existed, we hold that South Bend may proceed with its ELA claims . . . The fact the successor corporation was incorporated in Delaware does not control. While the law of the state of incorporation may determine issues relating to the internal affairs of a corporation, different principles apply where the rights of third parties external to the corporation are at issue . . . This case is a claim about property damage. The injury occurred in Indiana. The law of the place of the wrong occurred (lex loci delicti) governs. In disputes such as this, particularly because it involves a third person, the law of the state with the most significant relationship to the dispute – here Indiana – applies.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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Robert Young, doing business as Bob Young Logging ("BYL"), appeals from a decision of the full Worker's Compensation Board ("the Board") affirming the single hearing officer's decision that Glen Marling is entitled to reimbursement for certain medical treatments he received after an injury arising out of and in the course of his employment with BYL. Specifically, BYL argues that the Board's decision is erroneous because Marling is not entitled to reimbursement under the Indiana Worker's Compensation Act (the Act) because the treatments were unauthorized and the findings of fact and conclusions of law are insufficient to support the conclusion that Marling is entitled to reimbursement for these treatments.
Conclusion (slip op. at 2): Because we find that the medical treatments were authorized by a physician chosen by BYL's insurance carrier and that the Board's findings of fact and conclusions of law are sufficient to support the award, we affirm.
Key Analysis (slip op. at 11, 13, 15): We find that the Insurer's unilateral decision to stop paying for Dr. Tiwari's medical treatments after it had chosen him as an authorized provider did not transform him from an authorized to an unauthorized physician, especially in light of the policies underlying the Act. Thus, Marling was not required to prove that his case met one of the exceptions contained in Indiana Code § 22-3-3-4(d) . . . We conclude that the record contains sufficient evidence for the Board to have reasonably concluded that the pain treatments were necessary within the meaning of the statute . . . As a result, the Board's decision requiring BYL to pay for the medical treatments was proper.
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Appellant-plaintiff Lew Wood, individually and as legal guardian of his daughter, M.W., appeals the denial of his motion for partial summary judgment and the trial court's grant of summary judgment and entry of final judgment for appellee-intervening defendant State of Indiana (State), on his complaint for declaratory judgment, which alleged that I.C. 34-51-3-6 (punitive damages statute) is unconstitutional. In particular, Wood argues that the punitive damages statute violates various provisions of the Indiana Constitution, including: (1) the Privileges and Immunities Clause in Article I, section 23; (2) the Open Courts provision set forth in Article I, section 12; and (3) Article IV, sections 22 and 23, which prohibit the passage of special legislation and require that all laws shall be general. The State cross-appeals, claiming that the trial court erred in ruling on the declaratory judgment action because Wood has no standing to challenge the constitutionality of the punitive damages statute in these proceedings. Specifically, the State argues that Wood is improperly asking us to decide issues that have not yet ripened "and may never ripen."
Conclusion (slip op. at 2): We find that the issue presented in the State's cross-appeal is dispositive and therefore conclude that no justiciable controversy exists in this case regarding the constitutionality of the punitive damages statute. Therefore, because Wood lacks standing to challenge the constitutionality of that statute, we affirm the judgment of the trial court.
Key Analysis (slip op. at 8): It is apparent that Wood has not shown any real injury arising from the allocation provisions of the punitive damages statute merely because he may have to choose his best litigation strategy. Indeed, Wood has not even obtained a determination on liability and, until a jury announces a punitive damages award, neither the State nor the party seeking such an award has any actual right to any portion of such an award.
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Sullivan, Justice.
In this case, certain property owners appealed a trial court’s order of condemnation and appropriation in respect of land for sewer easements and persuaded the Court of Appeals to stay the trial court’s order requiring an appeal bond. We assumed jurisdiction of the case to vacate the action of the Court of Appeals and now affirm the judgment of the trial court on the merits.
Key Analysis (slip op. at 5, 7, 9, 10): Indiana Code § 8-1-8-1 and I.C. § 32-24-4-1 are clearly not repugnant to one another and thus present no impediment to West Boggs exercising condemnation authority . . . Because West Boggs hired an independent appraiser and it used the appraisal in the Offer Letters prior to the commencement of condemnation proceedings, West Boggs’s offer was in good faith as a matter of law . . . the Property Owners had ample notice of and multiple opportunities to respond to West Boggs’s Motion for Summary Judgment . . . None of the Property Owners responded within the required 30 days and after 39 days the trial court entered individual summary judgments . . . As such, the Property Owners were not denied their due process rights. They had an opportunity to respond but did not do so.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
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Appellants-defendants American United Life Insurance Company (AUL) and R.E. Moulton, Inc., (Moulton) (collectively, the appellants), appeal the grant of summary judgment in favor of plaintiffs-appellees Restaurant Hospitality Association of Indiana (Hospitality), the Indiana District of the Assemblies of God (IAG), and CQI, Inc. (CQI) (collectively, the appellees), on the appellees' cause of action to recover premiums from the appellants that had been paid under a stop loss insurance policy. The appellants claim that the trial court erred in refusing to strike portions of an affidavit tendered by one of the appellees' witnesses and further contend that the trial court erroneously determined as a matter of law that no contract of insurance existed because there was a mutual mistake of fact. Thus, the appellants contend that the judgment awarded to the appellees constituting the amount of premiums the appellees had paid plus prejudgment interest must be set aside.
Conclusion (slip op. at 15-16): We conclude that the trial court erred in granting the appellees' motion for summary judgment and, because the material facts were not in dispute, the trial court should have granted the appellants' motion for summary judgment. The trial court's judgment is reversed and remanded with instructions to grant the appellants' motion for summary judgment and to enter final judgment on their behalf.
Key Analysis (slip op. at 15): We conclude that the designated evidence established that the negotiations between the parties left nothing open for future determination and that the appellees are unable to point to any material term of the stop loss policies on which the parties did not agree. Indeed, the appellants issued the stop loss policies to the appellees according to the precise terms that were requested, including the subject matter, the risk insured against, the amount the duration of the risk, and the premium. Hence, the appellees were obligated to pay the premiums, and the appellants were bound to pay the amount insured in the event of a loss.
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Appellant-Defendant, Clay City Consolidated School Corporation (Clay City Schools), appeals the trial court’s denial of its motion to correct error and Order on remittitur awarding Appellees-Plaintiffs, Ronna Timberman (Mother) and John Pipes II (Father), $300,000 after a jury verdict. Clay City Schools raises seven issues for our review, one of which we find dispositive and restate as: (1) Whether the trial court abused its discretion by instructing the jury in Final Instruction No. 20 that a thirteen-year-old boy is presumed to be incapable of contributory negligence.
Conclusion (slip op. at 24): We conclude that the trial court committed reversible error when instructing the jury that Indiana law contains a rebuttable presumption that children between the age of seven and fourteen cannot be contributorily negligent. Reversed and remanded.
Key Analysis (slip op. at 13): We conclude that Indiana law does not conclusively contain a presumption either in favor or against seven to fourteen-year-olds with respect to whether they can be found liable for their negligent acts . . . The focus of Indiana law on the issue of when a child age seven to fourteen can be held liable in negligence for his or her acts is primarily determined by an inquiry into whether the child exercised the level of care that should be expected of a child of like age, knowledge, judgment, and experience in that situation.
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UNPUBLISHED
Debra Byrum appeals the trial court’s order denying her request for unpaid commissions earned before Bookout Properties terminated her employment. Specifically, Byrum maintains that the trial court erred as a matter of law by concluding that her written commission schedule did not satisfy the “signed and written” requirement of the Statute of Frauds, specifically, Indiana Code § 32-21-1-10.
Conclusion (slip op. at 2): Concluding that her written commission schedule satisfies Indiana Code § 32-21-1-10, we reverse and remand.
Key Analysis (slip op. at 6-7): We conclude that because Bookout clearly agreed to pay Byrum a commission once a contract for a house was signed and Byrum performed her part of the bargain, Indiana Code §32-21-1-10 does not operate to prevent enforcement of the agreement . . . From the time Byrum began as a full-time employee, Bookout followed this commission schedule, and neither party denies that this writing sets forth the agreement between the parties. As a matter of law, Bookout’s written commission schedule satisfies Indiana Code § 32-21-1-10.
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Appellant-respondent Michael Lukis appeals the trial court’s order determining that the way in which the Indiana Natural Resources Commission (NRC) evaluated the parties’ respective riparian rights was contrary to law and remanding the matter for reconsideration. Lukis argues that in arriving at that result, the trial court overstepped its authority on judicial review of an administrative action.
Conclusion (slip op. at 15): The judgment of the trial court is reversed.
Key Analysis (slip op. at 12, 13): The Nosek apportionment method would be a perfectly appropriate way to solve the parties’ dispute, but this method has never been adopted as a fixed rule in Indiana. The trial court, therefore, erroneously concluded that the NRC’s failure to follow the Nosek rule was contrary to law . . . That there may have been other results that would, likewise, have been equitable does not mean that the NRC arrived at a result that was erroneous or contrary to law. Nothing in the NRC’s decision warrants second-guessing from the judicial system.
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UNPUBLISHED
In this interlocutory appeal, Appellant-Plaintiff Jack’s Wholesale Windows and Design of Hammond, Inc. (“Jack’s”) challenges the trial court’s denial of its motion for sanctions, to compel discovery, for issuance of contempt citation, and entry of judgment against Appellees-Defendants Mark Flesher, Lakeside Contractor Supply, Inc., and James Flamini (collectively, “Defendants”). Upon appeal, Jack’s challenges the trial court’s ruling on several grounds. On cross-appeal, the Defendants claim that this appeal is not properly before this court because it was not timely filed. Concluding that Jack’s has waived its claims on appeal, we affirm.
Key Analysis (slip op. at 3-4): Our review of this appeal is fatally impeded by Jack’s’ failure to conform to Indiana Appellate Rules 46(A)(5), (6), and 46(A)(8)(a). Jack’s’ Statement of the Case and Statement of the Facts in its brief is a stream-of-consciousness recitation of alleged events purportedly leading to the instant appeal but unsupported by necessary citation to or documentation in the record. Much of Jack’s’ brief is unaccompanied by record citations, and certain record citations which are included merely refer to Jacks’s’ own petitions containing similarly undocumented assertions . . . In addition, Jack’s’ argument, which includes citations to pages “xx,” and “xxx,” pages not contained in its appendix, is similarly unsupported by cogent reasoning or by citations to parts of the record relied upon. Accordingly, we deem Jack’s’ claims waived and therefore find it unnecessary to address the Defendants’ cross-appeal.
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UNPUBLISHED
J. Michael Ray ("Ray") appeals from the Allen Superior Court’s grant of summary judgment in favor of Laidlaw Medical Transportation, Inc. d/b/a American Medical Response of Fort Wayne ("AMR") in Ray’s "whistleblower" suit against AMR. Upon appeal, Ray claims that the trial court erred in concluding that Ray was required to have reported a violation of federal law or regulation in writing before he was protected under the whistleblower statute, Indiana Code section 22-5-3-3 (2005).
Conclusion (slip op. at 5): Because Ray did not make a written report of the alleged violations prior to his discharge, the whistleblower statute affords him no protection. The trial court therefore did not err in granting summary judgment in favor of AMR. Affirmed.
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Robert and Melinda Sexton, Stephanie and Craig Flinn, David and Gail Helt, Jerry and Hazel Marsh, and Steve and Celeste Bowman (collectively "the Appellants") appeal the trial court’s decision denying their petition for writ of certiorari. The Appellants raise several issues. We address the following two dispositive issues:
(I) Whether the trial court properly determined that the Appellants did not have standing to petition for the writ of certiorari; and
(II) Whether the trial court abused its discretion in determining that no violation of the Indiana Open Door Law ("IODL") occurred.
Conclusion (slip op. at 11): The Appellants are aggrieved by the BZA’s decision and have standing to petition for a writ of certiorari. The trial court improperly failed to supplement the record regarding the Appellants’ IODL claim. Accordingly, we reverse and remand for the trial court to consider the merits of the Appellants’ claims in light of our decision.
Key Analysis (slip op. at 8, 10, 11): [T]he trial court . . . appears to have analyzed whether there is sufficient evidence to support the BZA’s approval of Lykins’s application and concluded that there was sufficient evidence to support the BZA’s decision. This analysis, however, did not address all of the Appellants’ claims . . . Although the trial court was not required to consider supplemental evidence, it should have done so here . . . a party alleging an IODL violation should have an opportunity to establish a record in support of the claim.
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In this interlocutory appeal, AGS Capital Corporation, Inc., AGS Capital, LLC (collectively "AGS"), Fast Tek Group, LLC ("Fast Tek"), Superior Metal Technologies, LLC ("Superior Metal"), Alan G. Symons, Scott A. Weaver, Anthony Roark, and Chan Chanthaphone (collectively "Appellants") appeal the trial court’s grant of preliminary injunction to Product Action International, LLC ("Product Action"). The Appellants raise numerous issues, which we reorder and restate as:
(1) Whether Indiana’s Uniform Trade Secrets Act preempts Product Action’s claim under Indiana’s Racketeer Influenced and Corrupt Organizations ("RICO") statute;
(2) Whether the trial court’s ruling that Product Action established a prima facie case that the Appellants misappropriated trade secrets was clearly erroneous;
(3) Whether the trial court’s ruling that Product Action established a prima facie case that the Appellees violated Indiana’s RICO statute was clearly erroneous;
(4) Whether the trial court’s finding that Fast Tek and AGS are "alter egos" is clearly erroneous;
(5) Whether the trial court erred in concluding that Product Action would suffer irreparable harm without an injunction;
(6) Whether the preliminary injunction is overbroad; and
(7) Whether the $2000 injunction bond to be posted by Product Action is unreasonably low.
Conclusion (slip op. at 38): In sum, we hold that IUTSA does not preempt a civil RICO claim because such a claim is an additional punishment made available by our General Assembly for particular schematic violations of Indiana’s criminal law. Product Action presented a prima facie case under IUTSA and RICO, supporting the trial court’s imposition of a preliminary injunction. We also affirm the trial court’s alter ego determination as to AGS and Fast Tek. While the majority of the terms of the preliminary injunction are not overbroad, the provision prohibiting the participation of AGS, Symons and Weaver in the operation of Fast Tek is overbroad. Accordingly, we reverse that particular provision of the preliminary injunction and affirm the remaining provisions. We reverse the award of attorney’s fees to Product Action as the prevailing party has yet to be determined by a trial on the merits. Finally, the Appellants have not carried their burden to establish that the injunction bond is inadequate. Affirmed in part, reversed in part, and remanded for further proceedings.
BAKER, C.J., concurs.
VAIDIK, J., concurs in part and dissents in part with opinion: "I respectfully concur in part and dissent in part . . . I write to express my disagreement with the majority’s conclusions regarding whether the duration of the preliminary injunction issued by the trial court is overbroad and whether the $2000 injunction bond is unreasonably low . . . "
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Appellants-Defendants, City of Terre Haute, Engineer’s Office of the City of Terre Haute, and City of Terre Haute Street Commissioners (collectively, the City), appeal the trial court’s denial of their motion for summary judgment in Appellee-Plaintiff’s, Annette Pairsh (Pairsh), personal injury action. The City raises one issue on appeal, which we restate as: Whether the City is immune from liability for Pairsh’s injuries pursuant to the Indiana Tort Claims Act.
Conclusion (slip op. at 9): We conclude that the trial court erred in denying the City’s motion for summary judgment. Therefore, we remand this cause to the trial court with instructions to enter summary judgment in favor of the City. Reversed and remanded.
Key Analysis (slip op. at 5, 8): Our supreme court has adopted the "planning-operational test" for determining whether a function is discretionary for purposes of the ITCA. The planning-operational standard "dictates that a governmental entity will not be held liable for negligence arising from decisions which are made at a planning level, as opposed to an operational level . . . Decker’s affidavit reflects the exercise of official judgment and discretion, the weighing of alternatives, an assessment of competing priorities, the weighing of budgetary considerations, and the allocation of scarce resources, all of which are "planning activities" under the "planning-operational test."
MAY, J., dissents with opinion: "The evidence the City designated does not establish as a matter of law that its decision not to repair the sidewalk where Pairsh fell was performance of a discretionary function that entitles the City to tort immunity . . . "
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Progressive Halcyon Insurance Company ("Progressive") appeals the denial of its motion for summary judgment and the granting of the motions for summary judgment filed by Michael Petty and Autumn Petty on the issue of whether Michael and Autumn are entitled to underinsured motorist ("UIM") coverage under Autumn’s policy with Progressive ("the Policy").
Issue: Are Michael and Autumn entitled to UIM coverage under the Policy?
Conclusion (slip op. at 17): We conclude that Michael and Autumn are not entitled to UIM coverage under the Policy. Therefore, we reverse and remand with instructions to grant summary judgment in Progressive’s favor. Reversed and remanded.
Key Analysis (slip op. at 16, 17): We conclude that the $50,000 threshold mentioned in I.C. 27-7-5-2(a) refers only to the $50,000 per-accident limits mentioned in I.C. 9-25-4-5 and that the minimum per-person UIM coverage is $25,000 . . . we conclude that [the] Policy does not provide less coverage than required by Indiana [law] . . . . although I.C. 27-7-5-4 is a full-recovery statute, "a full-recovery statute will not necessarily assure full indemnification for all potential damage to all potential insureds.
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Lake County Board of Elections and Registration ("Election Board") and Myrna Maldonado, Richard Medina, and Juda Parks ("Challengers") (collectively "Appellants") appeal the trial court’s order requiring the Election Board to place Anthony Copeland’s name on the ballot for the November 6, 2007, General Election for an At-Large seat on the City of East Chicago Common Council as an Independent. On appeal, Appellants raise two issues:
(1) Whether an incumbent city councilman at large can lawfully seek election in the upcoming November 6, 2007, general election in the City of East Chicago, Indiana, as an "independent" candidate for an at large seat on the Common Council, where said person was the incumbent Chairman of the Democratic Party organization in that City at the time he filed his [paperwork];
(2) Whether the trial court erred in denying Challengers’ motion to intervene.
Conclusion (slip op. at 6-7): We conclude that the issues are moot because Copeland lost in the November 6, 2007, General Election and each of the Challengers—Maldonado, Medina, and Parks—won in that election. . . because the issues are both moot and unlikely to recur, we decline to address them. We therefore dismiss this appeal.
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Hendricks County Sheriff Dave Galloway brings this interlocutory appeal from the trial court’s Order Granting David Hadley’s Complaint for Preliminary Injunction ("Injunctive Order").1 Sheriff Galloway raises four issues for our review, which we restate as follows:
1. Whether Indiana Code Section 27-10-3-18 (the "Equal Access Law"2) creates a private cause of action.
2. Whether the trial court abused its discretion in entering the preliminary injunction.
Conclusion (slip op. at 17-18): In sum, we hold that the Equal Access Law creates a private cause of action and that the IDOI’s jurisdiction is not implicated here. We also hold that the trial court did not abuse its discretion in granting Hadley’s request for a preliminary injunction against Sheriff Galloway’s use of the Preferred Agent List. Finally, Hadley’s complaint is not barred by the doctrine of unclean hands. Affirmed.
Key Analysis (slip op. at 7, 13, 15, 17): Here, the Equal Access Law does not explicitly state whether it is intended to be the basis for a private cause of action. Thus, we look to whether the Equal Access Law confers a public benefit, a private benefit, or both. See Blanck, 829 N.E.2d at 509. . . . and while the public might receive a benefit from that business, any public benefit is ancillary to the direct benefit conferred on bail agents . . . But Hadley and Lee both testified that Hadley had experienced a "[d]ramatic reduction in volume" of work since Hadley was removed from the Preferred Agent List. Appellant’s App. at 70, 146. It was within the trial court’s discretion to weigh the credibility of that testimony. The court’s conclusion that the removal of Hadley’s name from the Preferred Agent List presented Hadley with the "lost opportunity to do business" is not clearly against the facts and circumstances that were before the court . . . Sheriff Galloway’s assertion that he is not required to publish and give notice of his policies reads too much into the trial court’s statements. To be sure, it is true that "neither the Indiana Code nor Indiana Administrative Code contain provisions prescribing how sheriffs are to satisfy any supposed publication and notice requirements." . . . Here, Sheriff Galloway alleges that Hadley has unclean hands because he has knowingly participated in the use of preferred agent lists in the past without objection. Thus, Sheriff Galloway continues, Hadley’s request for an injunction on the current list is "hypocritical." While Hadley’s position may be hypocritical, hypocrisy is not a cognizable legal issue. The only question before the court was whether Hadley was entitled to a preliminary injunction against the Sheriff’s current use of the Preferred Agent List. Prior lists that included Hadley’s name or the name of Hadley’s business had no "immediate and necessary relation to the matter being litigated." Accordingly, Hadley’s request for injunctive relief is not barred by the doctrine of unclean hands.
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