By Peter Elliot, Indiana Commercial Court
On March 21, the IndyBar Business Law Section and Women and the Law Division presented the Case Law Update CLE, a survey of consequential business law decisions issued by Indiana appellate courts in 2018. Michael Limrick, a partner at Hoover Hull Turner LLP who practices commercial litigation, was the featured speaker.
Limrick organized the presentation by placing the cases in order of trial procedure, beginning with pleading issues and ending with post-judgment claims for attorney’s fees. Throughout his presentation, Limrick invited the audience to share their thoughts on the outcomes of cases and whether they have faced similar issues in their own practices.
The presentation began with some personal jurisdiction matters. In Oswald v, Shehadeh, 108 N.E.3d 911 (Ind. Ct. App. 2018), the Court of Appeals found that out-of-state defendants may be sued over a breach of contract in Indiana because they maintained sufficient business contacts with the state and travelled to Indiana on multiple occasions.
In O’Bryant v. Adams, 108 N.E.3d 933 (2018), the Court of Appeals analyzed whether a choice of law clause in a contract also should be considered a forum selection clause for the purposes of a motion to dismiss. While the provision unambiguous stated that Texas law governed the contract, the parties disagreed over whether they were required to filed suit in Texas as well. Limrick presented this issue to the attendees, who engaged in a lively discussion weighing Indiana’s commitment to freedom of contract principles against the practical realities of two out-of-state parties opting to litigate in Texas. The Court of Appeals ultimately found dismissal appropriate based on the language of the provision, but the Indiana Supreme Court has granted transfer of this decision.
Limrick also discussed recent opinions concerning whether the presence of a registered agent creates preferred venue under Ind. Trial Rule 75(A)(4). Trial Rule 75 has been interpreted to mean that a defendant company can be sued in the county where it’s registered agent is located. The Court of Appeals, however, issued a pair of opinions that disagree over whether the location of registered agents is still sufficient to create preferred venue in light of new statutes enacted by the General Assembly in 2018. Limrick turned the question over to the audience to gauge their thoughts, with one commenter noting that this issue could present interesting implications on interstate commerce issues.
The other cases in Limrick’s presentation addressed other issues that frequently arise in business litigation. The Court of Appeals in Himsel v. Ind. Pork Producers Ass’n , 95 N.E.3d 101 (2018), upheld a non-party’s award for attorney’s fees related to expenses incurred while answering non-party discovery requests. In Earley v. Edward Jones & Co., the Court of Appeals held that an arbitration clause that satisfied the requirements of the Federal Arbitration Act and concerned interstate commerce could not be defeated by state law requirements for arbitration clause language. 105 N.E.3d 1094 (Ind. Ct. App. 2018). Touching on expert testimony requirements, Limrick discussed a recent federal decision which reaffirmed many of the instances where excerpt testimony would be inadmissible under Fed. R. Evid. 702 and Daubert. S.E.C. v. ITT Educational Servs., Inc., 311 F. Supp. 3d 977 (S.D. Ind. 2018)
Limrick ended his presentation with opinions related to attorney’s fees claims following final judgment. In BioConvergence, LLC v. Menefee, the Court of Appeals affirmed that while indemnity provisions imposing attorney’s fees may apply to first party claims but only if the language of the indemnity provision is sufficiently specific. 103 N.E.3d 1141 (Ind. Ct. App. 2018). Limrick also discussed Scheffer v. Centier Bank, where a party succeeded in winning attorney’s fees after having proven that information contained in a plaintiff’s affidavit was false at trial. 101 N.E.3d 815 (Ind. Ct. App. 2018).
Limrick’s presentation was an excellent survey of a wide variety of decisions issued 2018 related to the practice of business law. The IndyBar Business Law Section and Women and the Law Division look forward to presenting similarly relevant and informative programming through the rest of 2019.
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