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INDIANA LAW UPDATE by Ronald J. Waicukauski and Brad A. Catlin ISSUE 2: 2017 SERIES – March 30, 2017 Available Online At

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INDIANA LAW UPDATE by Ronald J. Waicukauski and Brad A. Catlin ISSUE 2: 2017 SERIES – March 30, 2017 Available Online At INDIANA LAW UPDATE by Ronald J. Waicukauski and Brad A. Catlin ISSUE 2: 2017 SERIES – March 30, 2017 Available online at: www.IndianaLawUpdate.com 301 Massachusetts Avenue Indianapolis, Indiana 46204 T: 317-633-8787 [email protected] [email protected] IN THE NEWS: Legal advertising blows past $1 billion and goes viral .................... 2 1. The Governor and Public Records; Groth v. Pence, 67 N.E.3d 1104 (Ind. Ct. App. 1/9/17) (Najam) .............................................................................................. 3 2. Personal Jurisdiction of BMV Depends on Service on Attorney General; Indiana Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380 (Ind. Ct. App. 1/23/17) (Robb) ....................................................................................................... 5 3. 180-Day Extension for Med Mal Claims Strictly Applied; Dermatology Associates, P.C. v. White, 67 N.E.3d 1173 (Ind. Ct. App. 1/19/17) (Robb) ........... 6 4. No Constructive Fraud Without Concealment; Central Indiana Podiatry, P.C. v. Barnes & Thornburg, LLP, 2017 WL 819741 (Ind. Ct. App. 11/16/16) (May) . 9 5. A Voidable Error Will Not Satisfy Tr. R. 60(B)(6) Requirements for Relief from Judgment; Koonce v. Finney, 68 N.E.3d 1086 (Ind. Ct. App. 1/13/17 (May) ..... 11 6. Failing To Follow Proper Rule 60(B) Procedure Results In Dismissal Of Motion; Falatovics v. Falatovics, 2017 WL 943970 (Ind. Ct. App. 3/10/17) (Crone) .................................................................................................................. 13 7. Law Firms Must Comply With Credit Services Organizations Act; Consumer Attorney Services, P.A. v. State of Indiana, 2017 WL 1057413 (Ind. 3/21/17) (Massa) ................................................................................................................. 15 8. Person Who May Have Exerted Undue Influence Always Has The Burden Of Proof; Garrison v. Garrison, 2017 WL 931285 (Ind. Ct. App. 3/9/17) (Shepard) .............................................................................................................................. 17 9. Bail Bonds Are Subject To Garnishment; Garner v. Kempf, 70 N.E.3d 408 (Ind. Ct. App. 1/30/17) (Altice) ..................................................................................... 18 10. The Best Evidence Rule May Not Require the Actual Tape Recording; Morris v. Crain, 2017 WL 899957, ____ N.E.3d _____ (Ind. Ct. App. 3/7/17) (Crone) ...... 20 11. The Interplay Between Trial Rules 12(B) and 12(C); Mourning v. Allison Transmission, Inc., 2017 WL 999453 (Ind. Ct. App. 3/15/17) (Vaidik) .............. 21 12. Attorney Fee Award Cannot Be Based On Ex Parte Submission; Riley v. AAA Automotive, LLC, 67 N.E.3d 1131 (Ind. Ct. App. 1/12/17) (Bailey) ................... 23 13. Jury Verdict Reinstated Because Findings Of Fact Did Not Support A New Trial; Estate of Pfafman v. Lancaster, 67 N.E.3d 1150 (Ind. Ct. App. 1/18/17) (Najam) ................................................................................................................ 24 14. Supreme Court Limits Laches as a Defense to Patent Infringement; SCA Hygiene Products Aktiebolag et al. v. First Quality Baby Products, LLC, 580 U.S. _____ (2017) (J. Alito) .................................................................................. 26 ADVOCACY TIP OF THE MONTH: Discipline Yourself in Writing: No Adverbs in Persuasive Writing ...................................................................................................... 28 1 IN THE NEWS: Legal advertising blows past $1 billion and goes viral From abajournal.com By Victor Li April 1, 2017 Whether it inspires envy, parody, anger, litigation or teeth-clenched admiration, legal advertising is here to stay. According to Oct. 31, 2016, figures from Kantar Media’s Campaign Media Analysis Group, lawyers, law firms and legal–service providers spent $770,598,900 on television ads in 2016. The CMAG also predicted that $924 million would be spent by the end of the year based on the current monthly average. For paid Google keyword search terms-which advertisers buy to have ads appear after the terms are plugged into a Google search ad-a 2015 study by the GMAC and the U.S. Chamber of Commerce Institute for Legal Reform found nine out of the top 10 and 23 of the top 25 were legal terms. The most expensive terms were “San Antonio car wreck attorney” at $670, “accident attorney Riverside CA” at $626, and “personal injury attorney Colorado” at $553. Although the ad-buy rush is being fueled by personal injury and mass tort lawyers, Kantar Media found that other lawyers and legal-service providers have contributed to the boom, ranking Avvo and LegalZoom among the top 10 biggest spenders on TV advertising in 2015. Historically, the idea that a lawyer would market his or her practice to the general public was seen as unseemly and unprofessional. It was also unethical. Everything changed in 1977 when the Supreme Court handed down its decision in Bates. The court found that prohibitions on lawyer advertising violated the First Amendment. Moreover, the court simply saw such bans as anachronistic and unnecessary to maintain the integrity of the bar. The Fieger Law Firm, a personal injury practice based in Southfield, Michigan, made waves last February when it released an ad that distinguished the firm’s lead attorney, Geoffrey Fieger, from his competitors in Detroit, mentioning some by name. To Group Matrix CEO Sackett, these types of ads soon will become more commonplace. “At some point, within the next three to five years, we’ll see substantially negative advertising about one competitor over another,” Sackett says. “One law firm will do an ad like this, and then there will be retaliation because lawyers are trained to fight back.” 2 1. The Governor and Public Records; Groth v. Pence, 67 N.E.3d 1104 (Ind. Ct. App. 1/9/17) (Najam) This is one of the cases which make the news because it involves a highly political issue. But it makes it to this discussion because of its interesting legal issues. In December of 2014, then-Governor Mike Pence made the decision that Indiana would join a Texas lawsuit against the President of the United States to contest certain presidential executive orders on immigration. Groth submitted a request for public records related to this decision under the Access to Public Records Act. The Governor provided a number of documents, but redacted some, and withheld a legal memorandum. Groth complained about this response to the Public Access Counselor, who found that the Governor’s response was proper. Groth then filed a complaint with the Marion Superior Court, who also found the Governor’s response was proper after conducting an in camera review. Groth then appealed. On appeal, the first dispute dealt with the standard of review. As the trial court conducted a de novo review on a paper record, the Court found that it could also conduct a de novo review. The Governor disagreed, arguing that appellate courts must defer to the trial court’s assessment of the meaning of the paper records after an in camera review, and that the Court could not conduct its own in camera review. The Court disagreed. Among other reasons, Article 7, Section 6 of the Indiana Constitution guarantees the right to one appeal. The Governor’s argument would render that right illusory where, as here, the merits of an appeal turn wholly on documents reviewed in camera by a trial court. On appeal, we review the entire trial court record. Groth has requested in camera review on appeal of the documents at issue, and to give effect to his right to an appeal, we have, by separate order, granted his request. The Court began its substantive discussion by addressing a case we spoke about last April, Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236 (Ind. 2016), which declined to define legislative work product on the basis of a lack of justiciability. The Governor argued that the same principles were at work here, and made “a categorical claim of executive privilege from disclosure of his public records under APRA.” The Court did not agree, noting that “there is no APRA exception on which the Governor could rely that might plausibly be captured by the holding in Citizens Action Coalition.” The exceptions to public access which did apply (privileged attorney-client communications, attorney-client work product, and deliberative material), were all well-established, and applying these standards would not impinge on the Governor’s core executive functions. Therefore, the Court found that the dispute was justiciable. 3 Groth next argued that the trial court denied him due process when conducting its in camera review of the documents, because the trial court did not “provide a summary of the undisclosed information” after its in camera review. Groth argued that he could not effectively challenge the trial court’s decision without such a summary. The Court was not persuaded because Groth did not preserve the argument in the trial court. Groth could have requested the trial court to permit him to view the sealed records under a confidential protective order, which the trial court in its discretion may or may not have allowed, but he did not make such a request. He cannot avoid his forfeiture of that opportunity by claiming a due process violation. The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Groth has not shown that he did not have an opportunity to be heard at a meaningful time and in a meaningful manner. As for the documents which were withheld, the Court first addresses the legal memorandum, or white paper, and found it was privileged. It noted that the memo was drafted by a Texas deputy attorney general in an effort to recruit states to jointly challenge recent executive orders on immigration. This implicated the common-interest privilege, which the Court had previously applied to attorney communications to prospective co-plaintiffs. In doing so, the Court rejected a narrower construction of the privilege, which would find that it would not apply if a public agency was merely considering whether to become involved in litigation.
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