• Menu
  • Skip to left header navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Before Header

(317) 639-4511

  • LinkedIn
  • Twitter

Harrison Moberly LLP

Law Firm in Indianapolis, IN

  • HOME
  • PRACTICE AREAS
    • Appellate Law
    • Bankruptcy & Debtor-Creditor Relations
    • Business Services
    • Construction Law
    • Employment Law
    • Environmental
    • Estate Planning, Wealth Transfer and Tax
    • Family Law
    • Insurance Services
    • Law Practice Succession Planning
    • Litigation Services
    • Mediation Roundtable LLC and Alternative Dispute Resolution
    • Real Estate
    • Tax Controversy and Dispute Resolution
  • ATTORNEYS
    • A-K
      • Lisa M. Adler
      • Thaddeus R. Ailes
      • Stephen E. Arthur
      • Ashley A. Butz
      • Raeanna Carrell
      • William “Jay” Hancock
      • Natalie Hatfield
      • Lee L. Heyde
      • Don Hopper
    • L – Z
      • Patricia Polis McCrory
      • James J. McGrath
      • Tamie Jo Morog
      • Rory O’Bryan
      • Chad E. Oswald
      • Mark W. Pfeiffer
      • Fred D. Scott
      • Martha T. Starkey
      • David J. Theising
  • NEWS, EVENTS, & BLOGS
  • BILL PAY
  • LOCATIONS
  • Attorneys
    • A – K
      • Lisa M. Adler
      • Thaddeus R. Ailes
      • Stephen E. Arthur
      • Ashley A. Butz
      • Raeanna Carrell
      • William “Jay” Hancock
      • Natalie Hatfield
      • Lee L. Heyde
      • Don Hopper
    • L – Z
      • Patricia Polis McCrory
      • James J. McGrath
      • Tamie Jo Morog
      • Rory O’Bryan
      • Chad E. Oswald
      • Mark W. Pfeiffer
      • Fred D. Scott
      • Martha T. Starkey
      • David J. Theising
  • Practice Areas
    • Appellate Law
    • Bankruptcy & Debtor-Creditor Relations
    • Business Services
    • Construction Law
    • Employment Law
    • Environmental
    • Estate Planning, Wealth Transfer and Tax
    • Family Law
    • Insurance Services
    • Law Practice Succession Planning
    • Litigation Services
    • Mediation Roundtable LLC and Alternative Dispute Resolution
    • Real Estate
    • Tax Controversy and Dispute Resolution
  • Bill Pay
  • Locations
  • (317) 639-4511

INDIANA CASE LAW UPDATE: Interpleader Actions, Service, and Newly Discovered Evidence

June 6, 2007 //  by Stephen Arthur

INDIANA CASE LAW UPDATE
Interpleader Actions, Service, and Newly Discovered Evidence
Stephen E. Arthur

 

Interpleader Actions

 

The procedural devices provided by Trial Rule 22 and Ind. Code § 28-9-5-3 permit depository financial institutions to deposit funds into the court that are subject to an adverse claim. In a significant recent case, Porter Dev., LLC v. First Nat’l Bank of Valparaiso, 2007 WL 1491804 (Ind. 2007), the Indiana Supreme Court held that the statute allows the interpleading institution to recover its costs and expenses, including attorney fees. In Porter Development, a dispute arose between two parties over ownership of funds held by the Bank. The Bank initiated an interpleader action and, after depositing the funds with the court, requested its costs and expenses claiming that the Indiana Adverse Interpleader Statute, Ind. Code § 28-9-5-3, requires such a recovery. The trial court determined an award of attorney fees is not required because the Adverse Claim Interpleader Statute uses the word “entitled” and not “shall” when referring to such recovery. This decision, which was affirmed by the Indiana Court of Appeals, was reversed on transfer by the Supreme Court.

 

In reaching its ruling, the Supreme Court determined that the word “entitled” in the Adverse Claim Interpleader Statute mandates an award of costs and expenses, including attorney fees. Specifically, “entitle” means to furnish with an enforceable right or claim to something. This interpretation of “entitle” may ultimately be relevant to the proper interpretation of other Trial Rules and statutes that include entitlement language.

 

The Supreme Court then addressed who between the defendants should be responsible for paying the incurred costs and expenses. Reviewing other jurisdictions, the court stated that the interpleading party shall recover its costs and expenses directly from the deposited funds before distribution to the prevailing claimant and, as between competing claimants, the claimant whose claim to the fund is rejected must replenish the fund or reimburse the prevailing party. The right to recovery includes only those costs and expenses that are incurred in bringing a proper interpleader, or successfully defending a party’s use of interpleader. In the event the deposited funds are insufficient, the trial court may impose costs and expenses upon the unsuccessful claimants whose claims necessitated the interpleader action.

 

Service

 

Ind. Code § 4-21.5-5-8 provides that a petitioner for judicial review of an agency action shall serve a copy of the petition upon “each party to the proceeding before an agency; in the manner provided by the rules of procedure governing civil actions in the courts.” The Indiana Court of Appeals in Lindsey v. De Groot Dairy, LLC, 2007 WL 1584583 (Ind. Ct. App. 2007), was asked to determine whether the statute mandates that service be made under Trial Rule 4 or Trial Rule 5. In Lindsey, the Lindseys sought judicial review of an Environmental Law Judge’s order by filing their petition in the trial court. A copy of the petition was sent to the Attorney General, the ELJ, an IDEM attorney, and an attorney who had represented De Groot in the administrative proceeding. De Groot, however, was not served with the petition. In response, the trial court dismissed the action finding that it lacked subject matter jurisdiction because of defective service.

 

On appeal, the Indiana Court of Appeals reversed. Noting the Indiana Supreme Court has previously held service upon a party’s attorney will not satisfy the requirements of Trial Rule 4, the Court of Appeals determined that Ind. Code § 4-21.5-5-8 is ambiguous as to which Trial Rule must govern service. After examining the legislative intent behind the statute, however, the court concluded that service pursuant to Trial Rule 5 will satisfy the requirements of Ind. Code 4-21.5-5-8. The court based its ruling, in part, on the court’s observation that a petition for judicial review is a continuance of the underlying agency action. Further, the court expressed an unwillingness to “create a procedural trap for unwary litigants” by requiring service in accordance with Trial Rule 4.

 

Continuity between Trial Rule 59 and 60(B)(2)

 

A motion for relief from judgment under Trial Rule 60(B) may not be used as a substitute for a direct appeal based upon a timely motion to correct errors under Trial Rule 59. Further, Trial Rule 60(B) may not be used to revive an expired attempt to take an appeal. Instead, the proper function of Trial Rule 60(B) is to afford relief from circumstances which could not have been discovered during the 30 day period mandated by Trial Rule 59. The relationship between Trial Rules 59 and 60(B)(2) was examined in Speedway SuperAmerica LLC v. Holmes, 866 N.E.2d 304 (Ind. Ct. App. 2007). In that action, Holmes commenced an action against Speedway alleging injuries caused by a slip and fall on diesel fuel. During trial, Holmes offered into evidence the jeans and boots worn by Holmes during the slip and fall incident. The trial court allowed the evidence and Speedway did not request an extension of time to conduct testing on the clothing. A jury verdict was returned in favor of Holmes.

 

A month after judgment was entered by the trial court, Speedway filed a Motion to Preserve Evidence and Perform Destructive Testing on the clothing as well as a combined motion under Trial Rules 59 and 60(B)(2). Both motions provided that testing of the clothing would lead to newly discovered evidence but did not specify the new evidence. As for the timing of the combined motion, Speedway argued that Trial Rule 59 requires that a motion to correct errors when “new evidence is capable of production within thirty (30) days of the final judgment which, with reasonable diligence, could not have been discovered and produced at trial.” Alternatively, Trial Rule 60 allows for relief from a judgment when newly discovered evidence “by due diligence could not have been discovered in time to move for a motion to correct errors….” Speedway concluded that it was uncertain whether the testing results theoretically could have been obtained within 30 days so it was proper to request relief under both Trial Rules because if one did not apply the other must. The trial court denied the combined motion.

 

On appeal, the Indiana Court of Appeals held that Speedway had failed to act diligently to discover new evidence within 30 days of the judgment. Speedway’s motion under Trial Rule 59 did not specify what the newly discovered evidence was, but only that it would be discovered after testing. Additionally, the record established that the actual testing of the clothing took less than 30 days. Therefore, had Speedway tested the clothing upon admission, it would have discovered a basis to support its Motion to Correct Error within the 30 day period. Because the newly discovered evidence could have been discovered timely, a motion to correct errors was a jurisdictional prerequisite, and Speedway could not resurrect its remedy by motion under Trial Rule 60(B)(2).

 

————————————————————————–

 

Stephen Arthur is a partner with Harrison & Moberly, LLP (

www.harrisonmoberly.com

) in Indianapolis, concentrating his practice in federal and state business and tort litigation. He is the author of Indiana Civil Trial Practice, published by West Publishing, and co-author of Professor Harvey’s Indiana Rules of Procedure Annotated. The author wishes to thank Paul Carroll for his assistance. The opinions and analysis expressed in this column are those of the author.

You May Also Be Interested In:

Estate Planning Considerations for New Parents

David Theising to Speak at 2021 Annual Meeting of ABA Forum on Construction Law in New York City

Execute Documents Remotely

Parenting Time During Governor Holcomb’s Stay at Home Order

Estate Planning During Coronavirus & Social Distancing

Virtual Estate Services

Estate Administration During Coronavirus & Social Distancing

Harrison & Moberly proudly sponsors 2019 APABA-IN Central Regional Conference

Hopper Appointed as Member of the Probate Code Study Commission

Previous Post: « INDIANA CASE REVIEW: Interlocutory Appeals; Waiver; Liquidated Damages and Rule Changes
Next Post: INDIANA CASE LAW UPDATE -No Set of Facts? »

Primary Sidebar

Twitter

26 Sep 1574502378233122816

HM is excited to announce that Lisa M. Adler and Ashley A. Butz, members of the firm’s estate planning practice, have been named members to the Estate Planning Council of Indianapolis.

Reply on Twitter 1574502378233122816Retweet on Twitter 1574502378233122816Like on Twitter 15745023782331228161Twitter 1574502378233122816
30 Aug 1564625082563137548

Harrison Moberly is proud to recognize and congratulate its 2023 Best Lawyers!

Twitter feed video.
Image for the Tweet beginning: Harrison Moberly is proud to
Reply on Twitter 1564625082563137548Retweet on Twitter 1564625082563137548Like on Twitter 15646250825631375481Twitter 1564625082563137548
25 Feb 1497260344577867776

Harrison & Moberly, LLP is proud to recognize and congratulate its 2022 Super Lawyers and Rising Star!

https://t.co/dtMUm1Bzfk

Twitter feed video.
Image for the Tweet beginning: Harrison & Moberly, LLP is
Reply on Twitter 1497260344577867776Retweet on Twitter 1497260344577867776Like on Twitter 1497260344577867776Twitter 1497260344577867776
1 Jun 2021 1399791212056530945

Harrison & Moberly is pleased to officially return to the Downtown office today and celebrated the occasion with a Taco Tuesday lunch to catch up with each other in person!

Twitter feed video.
Image for the Tweet beginning: Harrison & Moberly is pleased
Reply on Twitter 1399791212056530945Retweet on Twitter 1399791212056530945Like on Twitter 13997912120565309451Twitter 1399791212056530945
18 Nov 2019 1196439093527416833

For the 3rd year, H&M Attorneys Mark Pfeiffer and Fred Scott attended the 2019 Tippecanoe County Veterans Stand Down event on November 2, 2019, to provide pro bono legal advice on issues that routinely impact Indiana veterans! We are so grateful for their dedication and service!

Twitter feed video.
Image for the Tweet beginning: For the 3rd year, H&M
Reply on Twitter 1196439093527416833Retweet on Twitter 1196439093527416833Like on Twitter 11964390935274168331Twitter 1196439093527416833
Load More...

Recent Posts

Estate Planning Considerations for New Parents

Starting a family involves preparation and thinking ahead. …

David Theising to Speak at 2021 Annual Meeting of ABA Forum on Construction Law in New York City

Harrison & Moberly attorney David Theising has been invited …

Execute Documents Remotely

We will soon be able to assist clients in executing their estate …

Parenting Time During Governor Holcomb’s Stay at Home Order

During the current World upheaval, parents are looking for …

Estate Planning During Coronavirus & Social Distancing

During this frightening time, we are all reminded of life’s …

Footer

INDIANAPOLIS
(317) 639-4511

8335 Keystone Crossing
Suite 220
Indianapolis, IN 46240

CARMEL
(317) 639-4511

760 S Rangeline Road
Suite 164
Carmel, IN 46032

LEBANON
(317) 639-4511

114 South Meridian St.
Suite A
Lebanon, IN 46052

Site Footer

The information contained on this website is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state.

Copyright © 2023 Harrison and Moberly LLP · All Rights Reserved ·