June 01, 2007

INDIANA CASE LAW UPDATE: Designation of Evidence, Service of Process, Disqualification of Attorneys, and Class Certification Requirements


Designation of Evidence, Service of Process, Disqualification of Attorneys, and Class Certification Requirements

Stephen E. Arthur


Designation of Evidence


Trial Rule 56(C) states, in part, “At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” A proper designation requires a party to file a list of the factual matters which are not in dispute; a specific designation to their location in the record; and a brief synopsis of why those facts are material. Although Trial Rule 56(C) mandates that designated evidence must be specifically stated, the manner in which a party chooses to designate material is not expressly described in the rule. As a result, a number of Indiana courts have adopted a broad approach regarding the manner of designation, stating “[a] party satisfies T.R. 56(C) if it specifies evidence in a summary judgment motion, separate filing of designation, or in a memorandum in support or opposition to the motion for summary judgment.” See,, Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 46 (Ind. Ct. App. 2004). Recent case law suggests a more restricted approach to the designation requirement.


In Filip v. Block, 858 N.E.2d 143 (Ind. Ct. App. 2006), two insureds (Filips) commenced an action against their insurance agent and insurance agency claiming the defendants had negligently advised the Filips on the selection of adequate insurance. The defendants filed a motion for summary judgment. Although the defendants designated entire pages of documents in their motion, the defendants’ supporting Memorandum of Law designated limited and specific references to the record. Unfortunately, the Filips failed to timely designate materials in opposition to summary judgment and were forced to rely on the defendants’ designations. The issue before the court was whether the Filips could rely on the broader designations contained in the defendants’ motion, or must they be limited to the specific designations contained in the defendants’ brief. The trial court limited its review to the designations contained in the brief, but the Indiana Court of Appeals reversed. In reaching its decision, the court held “the main designation of evidence should take place in the motion and response, with the accompanying briefs or memoranda playing merely a supporting, persuasive role.” Thus, the trial court erred in refusing to consider the broader designation of materials contained in the defendants’ motion for summary judgment.


The Filip decision was affirmed in Elliot v. Allstate Ins. Co., 859 N.E.2d 696 (Ind. Ct. App. 2007). To date, the Indiana Supreme Court has not indicated, by case review or amendment to Trial Rule 56, whether it agrees with the Filip and Elliot decisions.


Service of Process


Trial Rule 4.1(A) provides that process may be served on an individual by leaving a copy of the summons and complaint at his residence. When service is made in this manner, Subsection 4.1(B) requires the serving party to send a copy of the summons to the defendant’s last known address by first class mail. Importantly, Trial Rule 4.1 must be read together with Trial Rule 4.15(F) which provides that “[n]o summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time in which he is required to respond.” As a general matter, the failure to technically comply with Trial Rule 4.1 will not defeat a trial court’s jurisdiction so long as the serving party has substantially complied with the service rules.


These principles were discussed in LePore v. Norwest Bank of Indiana, 2007 WL 177841 (Ind. Ct. App. 2007). In that action, Norwest filed suit against David LePore for default on a contract. The sheriff unsuccessfully attempted to obtain service at David’s business and an alias summons was issued for service at David’s residence with certified mail to follow. The sheriff left a copy of the summons and complaint at David’s residence and plaintiff’s counsel sent the same to David’s residence by certified mail. The certified mail was returned with the stamp “moved, left no address” and a handwritten note “doesn’t live at this address.” The return of service failed to state whether a copy of the summons had been sent by first class mail. The trial court granted a default judgment for Norwest. Later, Norwest realized that David was actually Donald, and commenced proceedings supplemental against Donald. Although Donald lived at the residence where service had been attempted, he asked the court to set aside the judgment as being void for lack of personal jurisdiction, arguing that the process server did not send a copy of the summons to his residence by first class mail. The trial court rejected this attack. The Court of Appeals affirmed the trial court’s jurisdiction over Donald, noting that Trial Rule 4.15(F) may save a party’s technical failure to comply with the service rules. The court held that service at Donald’s residence, together with attempted service by certified mail, substantially complied with the mailing requirement of Subsection 4.1(B) and was reasonably calculated to inform Donald that an action had been instituted against him.


Disqualification of Counsel


As a general matter, an attorney may not act as an advocate at trial in which the lawyer is likely to be a necessary witness. Ind. Rule of Professional Conduct 3.7(a). This rule was examined in Knowledge A-Z, Inc. v. Sentry Ins., 857 N.E.2d 411 (Ind. Ct. App. 2006) which held a “necessary” witness is not the same thing as the “best” witness. The court stated where the evidence that would be presented by an opposing attorney can be elicited through other means, the attorney is not a necessary witness. Further, an attorney is not necessary if his testimony is not relevant or is only marginally relevant.


Class Certification


Plaintiffs are not required to specify the identities or exact number of all class members in order to satisfy the “numerosity” requirement of Trial Rule 23(A)(1). Rather, the plaintiff must only establish facts or demonstrate circumstances supporting a reasonable estimate of class size. The elements for establishing class certification, as well as the factors for deciding whether common questions of law or fact predominate over questions affecting only individual members, were discussed in 7-Eleven, Inc. v. Bowens, 857 N.E.2d 382 (Ind. Ct. App. 2006).


2007 Proposed Rule Amendments


The Indiana Supreme Court has published proposed 2007 amendments to the Indiana court rules at

. These proposed amendments would affect the following rules: Appellate Rules 14, 15, 57 and 63; Trial Rules 26, 34 and 37; Admission and Discipline Rules 23 § 27 and 30; and Professional Conduct Rules 7.2, 7.3, 7.4 and 7.5.




Stephen Arthur is a partner with Harrison & Moberly, LLP ( in Indianapolis, concentrating his practice in federal and state complex commercial litigation. He is the author of Civil Trial Practice, published by West Publishing, and co-author of Professor Harvey’s Indiana Practice volumes. The author wishes to thank Paul Carroll for his assistance in the preparation of this case review. The opinions and analysis expressed in this column are those of the author.


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