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Not So Fast, My Friend

Not So Fast, My Friend


hagenow2On a television show I particularly enjoy on a certain well-known sports network on Saturday mornings between August – December, one of the long-time stars of the show (who also happens to be a former head football coach at Indiana University), has a line he frequently uses when he disagrees with the opinions of one of the other hosts of the show.  That line, “Not so fast, my friend” actually can help us understand what can happen when a legal dispute goes to court and the parties rely on a judge (or jury) to decide who wins and losses.

 Clients typically come to us quite confident in their position in a dispute or legal situation in which they find themselves.  They see absolutely no way they can lose, and want us as their attorneys to affirm this belief.  “You agree with me, right?” is something that is often asked of us.  Of course, 25 years of experience, and of winning of cases I should have lost and losing cases I should have won, tells me otherwise.  I often need to counsel clients that when it comes to litigation, you never know what can happen.

A recent Indiana Supreme Court case provides yet another illustration and cautionary tale that demonstrates why we are always so cautious about making predictions about litigation.  The detailed facts of the particular case are not terribly important for this article.  What is important is to understand the relatively straight forward nature of the applicable law and what happened as that case found its way to the Indiana Supreme Court.  In Ryan v. TCI, et al., Ryan was injured on a construction job.  Ryan was an employee of a subcontractor.  In the lawsuit he sued, among others, the general contractor.  Under Indiana law, a general contractor does not owe any duty to provide a safe workplace for employees of subcontractors.  However, a general contractor can assume that duty by contract.[1]  In this case, the general contract filed a motion for summary judgment, asking the court to dismiss the claim as a matter of law, based upon the general rule of no duty/responsibility.  Not surprisingly, Ryan disagreed, and argued that the general contractor had in fact assumed that duty through the relevant contract.

This is where the case gets interesting, and is really the point of this post.  I have discussed in many other posts on this blog how Indiana courts will enforce contracts and will look at the words chosen by the parties and will try to determine and then enforce the intent of the parties.  The Indiana Supreme Court again affirmed these principles when it stated:

In interpreting a contract, we ascertain the intent of the parties at the time the contract was made, as disclosed by the language used to express the parties’ rights and duties.  We look at the contract as a whole to determine if a party is charged with a duty of care and we accept an interpretation of the contract that harmonizes all its provisions.  A contract’s clear and unambiguous language is given its ordinary meaning.  A contract should be construed so as to not render any words, phrases, or terms ineffective or meaningless.  (citations omitted)

Easy enough.  But in this case, the trial court ruled in favor of the general contractor, therefore, finding that the contract was “clear and unambiguous” that the general contractor had not assumed a duty under the contract to provide a safe workplace for Ryan (or other employees of subcontractors).  The case was appealed, and the Indiana Court of Appeals agreed with the general contractor and the trial court in a 2:1 decision.  So at that point, the contract had been read by four different judges, three of whom felt that it was “clear and unambiguous” that the general contractor had not assumed any duty to provide a place workplace.

The Indiana Supreme Court then agreed to hear the case, and after reviewing the case said to the trial court and the Court of Appeals, “Not so fast, my friend(s).”  The Indiana Supreme Court, in a 5-0 decision, ruled that the general contractor had, pursuant to the contract, in fact assumed a duty to provide a safe workplace.  In other words, the Indiana Supreme Court ruled that the contract was “clear and unambiguous” that the general contractor had assumed that duty.

How does this happen?  How do nine judges read the same contract, with some finding that it was “clear and unambiguous” that the general contractor had assumed a duty, and others finding it was “clear and unambiguous” that the general contractor did not?  The purpose here is not to question any of the judges’ decisions, but to again highlight the uncertainty of any litigation.  Regardless of the law or the facts in your particular situation, you never know when a judge will look at you and say “Not so fast, my friend.”

[1] There are also other exceptions to this general rule of no responsibility, but those other exceptions are not relevant here.


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DIY: Not Always the Best Plan

        DIY: Not Always the Best Plan




There are many things that I could pay to have someone do that I do myself. Many people pay to have yard work done, but I rather enjoy it, plus being a healthy person who loves the outdoors I cannot justify paying someone to do the work I am perfectly capable of doing myself.

            Other things, however, are things I gladly pay someone to do because I know that because of their years of professional training they will be able to do the job effectively and correctly and I do not have to worry about it. Plumbing and changing my car oil are two examples for me personally. While I might be able to learn how to do the particular job myself, in certain areas even if I had taught myself I would feel better having a knowledgeable professional handle it and be able to deal with the intricacies and any unforeseen situations that could arise.

            Why am I sharing this in the legal blog? Because a recent case from the Indiana Supreme Court illustrates the potential pitfalls of trying to go it alone in the sometimes complicated world of litigation.  In McCullough v. CitiMortgage, two homeowners unsuccessfully challenged the foreclosure of their home.  While that does not make for a particularly interesting fact pattern, what is interesting is the opinion from the Supreme Court and “reading between the lines” the Court seems to imply that the homeowners may have had some legitimate arguments to make and potentially even win the appeal.

            The main problem was that these homeowners decided to proceed pro se, which means without a lawyer.  Most parties do have that right (corporations do not), but people who do that are held to the same rules as lawyers.  In this case, the homeowners did not properly designate materials to the courts, filed “woefully defective” briefs with the courts, and ultimately lost the appeal because, among other things, that had not placed any evidence into the court record.

            While the homeowners did submit with their briefs various materials, they did not follow the rules of procedure. Therefore, the Court could not consider those materials. Just because you give something to the Court does not mean it is “in evidence”, and if it is not “in evidence” then the Court will not consider it.   For example, in this case the homeowners claimed that they had paid off the loan owing to CitiMortgage through payments made under various Chapter 13 bankruptcy plans. However, the homeowners did not put those plans into the evidence before the Court.  This would have been a relatively easy thing to do, and whether or not it would have been helpful ultimately is unknown. However, the homeowners clearly did not give themselves their best opportunity to succeed by not getting evidence before the Court.

            I find it interesting that the Supreme Court accepted this case and then spent 10+ pages discussing the case history. I read it as an admonition that there are certain instances where it makes more sense to have someone else help you, and also a hint that this Court felt like the homeowners may have had some legitimate arguments, but did not do things correctly.   Again, the ultimate result may have been the same; we simply do not have all of the facts available to determine that.

            While lawyers (and plumbers and car repairs) can be expensive, trying to do it yourself can be costly as well.



No Cheating Clause

No Cheating Clause




As anyone who has read this blog before knows, we have often written about the fact that Indiana courts will enforce contracts between parties when those contracts were freely negotiated.  One of the most recent decisions from the Indiana Court of Appeals affirmed this longstanding and well settled principle, but the facts of this case were just too good to pass up.

            Rather than rehash all of those facts, I will leave those to the readers, but it is safe to say that not every day in legal opinions do we have to read what the legal term for “cheating” is in the context of a relationship or a court’s rather poignant statements that in this contract which included a “no cheating” clause, the woman “wasted little time in breaching the contract.”

            There is no doubt that the Court likely was also swayed by the fact that the real estate at issue formerly was owned by the man’s parents.   In any event, this case shows that not all the things that lawyers have to read are that boring and the lengths people will go to fight after a relationship falls apart.







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