After reviewing Weber's submissions to the district court opposing URA's motion for summary judgment, we find that Weber indeed failed to sufficiently raise the direct method of proof to preserve the issue for appeal. A single sentence that mentions a theory of direct proof—suspicious timing1—is not enough to preserve the issue for appeal, especially where Weber apparently did nothing more to indicate to the district court that she was pursuing the direct method of establishing her retaliation claim.

Brad A. Catlin
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Federal Rule of Appellate Procedure 28(a)(7) requires appellants to include in their briefs "a statement of facts relevant to the issues submitted for review with appropriate references to the record." The appellant's statement of facts lacked a single citation to the record. The appellees asked the Court to dismiss the appeal because of this failure. However, the 7th Circuit declined, citing "the proverbial pot-and-kettle idiom" (because they too did not always cite to the record in support of their factual assertions) and the appellees' "downright disingenuous" arguments concerning the factual events in the trial court.

The lesson here is clear - if you are going to move to dismiss an appeal because of the failure to comply with the Rules, then you better make sure that your brief is fully compliant and accurate.

Brad A. Catlin
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Brad A. Catlin
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In this case, the appellee argued that the appellant had waived the error raised on appeal because the appellant did not object prior to filing a motion to correct error. The Court recognized that a party may not generally raise an issue for the first time in a motion to correct error. Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000). However, the Court refused to apply that general rule in this case.


The Court's decision on this issue indicates the Court's preference to decide cases on their merits, rather than on procedural games. Moreover, this decision emphasizes that there are always exceptions to any general rule.

Brad A. Catlin
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In Hicks, Hicks sued the City of Indianapolis for negligence and the City moved to dismiss, arguing Hicks failed to timely file a tort claim notice with the City. The trial court granted the motion and Hicks timely moved to correct error. A magistrate entered an order granting Hicks's motion to correct error and reversing the previous dismissal in favor of the City, signing on a line titled "Judge, Marion Superior Court 11." The CCS entry reflected that "Court approves granting Plaintiff's motion to correct error and denying Defendant's City of Indianapolis, motion to dismiss."

Ninety-nine days later, the City filed a motion, arguing that the order granting the motion to correct error had no legal effect for being signed only by a magistrate, the motion to correct error was deemed denied, and the case came to an end when Hicks failed to file a notice of appeal. The trial court then issued a nunc pro tunc order granting the motion to correct error as of the date the magistrate signed the order. The City appealed.

On appeal, the Court first addressed the magistrate's authority to enter the order correcting error. The Court noted that a magistrate may not enter a final appealable order, absent special circumstances described by statute. Nevertheless, the Court held that the City had waived any challenge to the validity of the order by not bringing the "irregularity" to the trial court's attention within the deadline for ruling on Hicks's motion to correct error.


The Court then went on to say that it would have found no error, even in the absence of a waiver, because of the trial court's subsequent use of a nunc pro tunc order. The Court concluded that the CCS entry provided a sufficient basis for the trial court's nunc pro tunc entry.


The Court concluded by examining the merits of the City's argument regarding the merits of the motion to correct error and affirmed the trial court's decision.

The Court's decision on the issue of waiver is educational. The Court held that the City waived any objection to the magistrate's exercise of judicial authority because it did not raise the issue while the Court still had the opportunity to rule on the motion to correct error. However, the Court was not obliged to rule on the motion at any particular time prior to the deadline and, therefore, the City may have felt it was premature to ask the trial court whether it intended to adopt the magistrate's decision as its own. The Court's decision places an affirmative duty upon all litigants to make sure that the kinds of "irregularities" that took place in this case are resolved in a timely manner, especially if the irregular decision is adverse to you.

The Court's ruling on the issues surrounding the nunc pro tunc ruling are less groundbreaking, but are still worth noting. The Court made it clear that all it wanted was some clear evidence in the record supporting the nunc pro tunc order. That evidence would be sufficient, even if there were other portions of the record that could raise an inference that the nunc pro tunc order was improper. This broadens the latitude trial courts enjoy with respect to issuing nunc pro tunc orders.

Brad A. Catlin
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It does not appear from the Court's decision that this was an issue raised by either of the parties (unlike in Wrinkles, which noted that the issue was raised by the appellant). The Court's decision, therefore, signals that the bench may be receptive to an argument that a lesser standard of review should apply in the right set of circumstances. Keep this in mind when determining whether to appeal an adverse judgment when the trial court simply adopts your opponent's findings of fact and conclusions of law as its own.

Brad A. Catlin
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In Swanson, a plaintiff brought a discrimination action based on a denial of her application for a home-equity loan, but the district court dismissed her complaint. The plaintiff then appealed the case to the Seventh Circuit. The Court noted that a plaintiff


But the Court noted that there were questions about just how high the bar is set after Twombly.


The Court then went on to examine the text of Rule 8 and the language of recent Supreme Court decisions and concluded the following:


The Court concluded by addressing one of the major reasons defendants use in arguing in favor of a higher pleading standard.


This is not the first decision from the Seventh Circuit that has described the pleading standard after Twombly as essentially being the same as it was before Twombly. However, this is likely to be a very important decision for the bar. Judge Wood took the time to analyze the issues surrounding the applicable pleading standard in depth and has provided plaintiffs with ammunition to use when defendants argue that a motion to dismiss should be granted, in part, because of the burdens the defendants will have to face if it is not. Similarly, it provides a focus on whether the pleadings actually provide notice of the claims that defendants can use to attack pleadings. To say the least, lawyers both inside and outside the Seventh District will soon be citing this decision.

Brad A. Catlin
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A water line was leaking near a road in Putnam County, causing water to run across a road and freeze. A Putnam County deputy sheriff was called to the scene of an accident at the location of the leak, notified the Highway Department of the icy condition of the road, and left. The deputy did not take steps to alleviate the icy condition or warn the traveling public of the icy condition. After the deputy left, Price encountered the icy condition, lost control of her vehicle, and was injured in an automobile accident. She sued the Sheriff and others, claiming negligence. The Sheriff moved to dismiss, alleging that he owed no duty to alleviate or warn motorists of the condition of the road and that he was immune from suit. The trial court denied that motion and the Sheriff appealed.

On appeal, the Sheriff argued that he was immune because the danger was a temporary condition caused by the weather. The Court disagreed, noting that the complaint alleged that the condition of the road was caused primarily by a leak in a water line owned by the water company and, therefore, was not caused by the weather. The Court then went on to hold that the Sheriff had a duty to warn of the dangerous condition.

The key to this case was, therefore, the way in which it was pled. The Court based its decision, in large part, upon the fact that the complaint did not plead that the water line broke because of the weather. Instead, the complaint contained no allegation concerning the cause of the leak. It would be interesting to see how the case evolves. For instance, if the weather actually caused the leak, how would this fact affect the Court's analysis? However, these questions could all be avoided at this stage in the proceeding because notice pleading does not require that a plaintiff plead these kinds of facts.

Brad A. Catlin
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In Eiteljorg v. Lean, Case No. 49A05-0912-CV-679, the plaintiff and defendants had all been co-defendants in a prior lawsuit. Two of the co-defendants settled and submitted a proposed order dismissing them from the lawsuit to the trial court. The order contained language setting forth a contribution bar and directing entry of final judgment pursuant to Rule 54(B) as to those co-defendants. The remaining co-defendant, Lean, proceeded with his defense to the action and did not challenge the order dismissing his co-defendants. Eventually, Lean settled with the plaintiffs for $1.73 million.

After settling the underlying lawsuit, Lean sued his former co-defendants for contribution. They moved for summary judgment, citing the contribution bar in the dismissal order. The trial court denied their motion and they appealed.

On appeal, the Court concluded that Lean's claim for contribution was barred by the doctrine of issue preclusion.


While the Court sought to limit its holding to the facts of the case, calling those facts "unique," this case serves as an important practice tip. One should always consider correcting any error in a final judgment at the earliest possible moment, so as to prevent the application of res judicata principals to your particular situation. Failure to do so is a calculated risk that can have large adverse side effects.

Brad A. Catlin
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In Pitcher v. Berkley Risk Administrators Co, LLC, Case No. 81A04-0908-CV-458, the plaintiff argued that the case turned on the application of a particular rule allegedly promulgated by the Indiana worker’s compensation rating bureau. The defendant moved for summary judgment and the plaintiff designated a single piece of paper as evidence, which contained the rule and bore a copyright that states "1998 National Council on Compensation Insurances, Inc." The plaintiff admitted that he had been unable to establish that the renewal notice "rule" is, in fact, a law with which the defendant must comply and asked that the Court take judicial notice of the rule. The Court declined.


In other words, a plaintiff is under an obligation to establish the existence of a duty and cannot hope that a court will create one from whole cloth. Moreover, if you can't find a particular legal authority that you believe exists, you cannot hope that the court will find it for you. Always build your record and never rely on the magnanimity of the court.

Brad A. Catlin
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