What’s Your Excuse? Business Owners Beware.

What’s Your Excuse?  Business Owners Beware.                Like many people, I hate excuses, and I rarely have any tolerance for people who seem to always be making excuses.  In the law, people who try to  make excuses for not following the rules often suffer the consequences.  However, the law recognizes that we are not perfect, and in some situations will grant relief to people upon showing “excusable neglect”, i.e. a “good excuse”.  However, what constitutes excusable neglect will vary by the circumstances, and is often a very high bar to clear.  The  Indiana Court of Appeals recently addressed that issue and the operator of an apartment complex learned the hard way that its excuse was not good enough.             In Wamsley v. Tree City Village, et al., the plaintiff was injured when another tenant at the apartment complex accidentally discharged his 9mm handgun while he was cleaning it, and the bullet went through a wall and significantly injured the plaintiff.  Approximately 6 weeks later, plaintiff’s attorney sent a letter to the apartment complex notifying it of his representation of the plaintiff and asking the apartment complex to put its insurance company on notice.  Several months later (a personal injury plaintiff in Indiana has 2 years to file a lawsuit after the subject incident), plaintiff filed his lawsuit against the owner of the gun and the apartment complex.  The apartment complex did not respond to the Complaint  and a default judgment was entered against the apartment complex, which meant that the apartment complex could no longer contest liability for the damages sustained by the plaintiff.    ...

What is Your Favorite?

What is Your Favorite?          We all have favorites: favorite food; favorite song; favorite movie; favorite sports teams; etc.           When it comes to the law, however, we believe that the law does not play favorites: i.e. we all are equal in the eyes of the law.  Well, actually there are certain people who receive favoritism from the law, and no, it has nothing to do with political affiliation, money, race, gender, or anything of the sort.             Who are these people and how and why are they given favorable treatment?  They are called “guarantors”, or sometimes called “sureties”.  A guarantor (or surety) is someone who “guarantees” repayment of a debt of another person or entity.  A common example is when an owner of a small business is required by a bank to guarantee repayment of the loan made by the bank to the company.  Recall that a shareholder of a company is not personally liable for the debts of the company.  However, if that shareholder signs a guaranty of a particular debt, that creates a contract between the guarantor and the bank so that the bank can collect the loan from the guarantor in the event that the company fails to repay the loan.             A guarantor may also pledge property as collateral to repay a loan.  In that way the creditor must look to the pledged property for repayment, but the guarantor may not be personally liable, i.e., it may not have to actually pay money to the creditor, but the creditor can sell the property and keep the proceeds to...

Happy Retirement Ron!

Congratulations Ron Buchmeier on finally entering the ranks of the retired.  After over twenty years with the firm, Ron retired from the practice of law in January 2018.  Happy Retirement!  We all wish you the...

Say What You Mean, and Mean What you Say

Say What You Mean, and Mean What You Say          The Indiana Court of Appeals has again weighed in on the issue of contract interpretation.  In a recent case involving a “right of first refusal”, the Court was again asked to try to determine the intent of the parties from the plain language of the contract.  Interestingly, although all three judges on the Court of Appeals agreed that the “plain meaning” of the contract was “unambiguous”, the judges disagreed on what was that plain meaning.             In the case, individuals had leased several parcels of real estate from an oil company to operate gas stations.  As part of those leases, they negotiated a “right of first refusal” to purchase the parcels of real estate on which they operated their gas stations.             Years later, the oil company entered into a proposed agreement to sell all of its assets, including the real estate, for a combined price of $80,000,000.  The oil company did notify the individuals of the proposed sale and offered them the right to exercise their right of first refusal to purchase those properties.  Of course, the “offer” that they needed to match was for $80,000,000.             The individuals filed the lawsuit saying that it was never the intent of the parties that their right of first refusal would be tied to an offer that also involved all of the other assets of the oil company.  While the plain language of the contract simply says that the individuals had the right to match any offer to purchase their leased real estate, the individuals believed that it was...

25 Lessons in 25 Years – Part V

25 Lessons in 25 Years- Part V   We have reached the “Final Five”.  Again, these have been in no particular order other than number 1, which is the most important lesson that I have learned in my 25 years of law practice.  As I complete this list I realize that there is some overlap in certain of these lessons and some of them have more applicability on a day to day basis than others.  Nevertheless, it has been a worthwhile exercise to think through my career and those lessons that have had the greatest impact on me. This May Surprise A Lot of You.  Lawyers often have the reputation for being “slick”, sneaky, untrustworthy, manipulative, etc.  People love “lawyer jokes.”  Some lawyers are absolutely deserving of these labels, but the part that will surprise you is that in my experience, the vast majority of lawyers are the most ethical people I know.  There are many things that lawyers are ethically prohibited from doing due to ethical rules and rules of professional conduct that are not applicable to other professions or businesses. Those lawyers who do not abide by those rules are the ones who make the headlines, but again in my experience most lawyers are ethical, trustworthy, respectful, and of strong moral character, and society as a whole might benefit from having to abide by the same ethical code that lawyers are bound to uphold. Just Because You Can Does Not Mean You Should.  Whether it is firing off that angry e-mail (or even worse, a text), filing a particular motion or taking some other action that you...
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