Surviving and Thriving: Essentials for Starting or Improving your Solo/Small Practice Indianapolis Bar Association Nove

1. Surviving and Thriving: Essentials for Starting or Improving your Solo/Small Practice Indianapolis Bar Association November 10, 2011 Indianapolis, Indiana

2. Yasmin L. Stump YASMIN L. STUMP LAW GROUP, PC THREE MERIDIAN PLAZA, SUITE 100 10333 NORTH MERIDIAN STREET INDIANAPOLIS, IN 46290 317.705.0707 yasmin@yasminstumplaw.com Alexander Jesus Limontes MITCHELL HURST DICK & McNELIS, LLC 152 EAST WASHINGTON STREET INDIANAPOLIS, IN 46204 317.636.0808 alimontes@mhdmlaw.com

3. Service of Process

4. Four parts of Ind. T.R. 4-4.17 • Rules 4 and 4.1: • mechanics of preparing summons and modes of service to gain personal jurisdiction • Rules 4.2 - 4.10: • service upon particular types of persons and in particular types of action • Rules 4.11 - 4.13: • Effectuating service for each mode of service • Rules 4.14 - 4.17: • general provisions governing proof, validity, and scope of service of process

5. Part I Personal Jurisdiction, Service of Summons and Complaint

6. Personal Jurisdiction • Ind. T.R. 4(A) provides manner for Court to obtain personal jurisdiction over parties/persons • Court acquires jurisdiction over a party or person who: • Commences/joins in action; • Served with summons or appears; or • Subject to court’s jurisdiction under any other law • Person/legal entity falls within court's jurisdiction in a civil action only when properly made party to that action • Bowmar Instrument Corp. v. Maag, 442 N.E.2d 729 (Ind. Ct. App. 1982) (quoting Ind. T.R.4(A); Kilb v. Ennis, 74 Ind. 17 (1881)) • Accomplished through service of process typicall • Service of process is inadequate, court lacks personal jurisdiction • Bonaventura v. Leach, 670 N.E.2d 123 (Ind. Ct. App. 1996), trans. den., 683 N.E.2d 584, overruled on other grounds by Smith v. Johnston, 711 N.E.2d 1259 (Ind. 1999)

7. Content of Summons • Ind. T.R. 4(C) requires that summons contain: • Name and address of person being served; • Name, address and telephone no. of court; • Cause no. assigned to case; • Title of case as in complaint; • May shorten title to first named plaintiff and defendant with indication that additional parties exist if multiple parties • Name, address and telephone no. of attorney for party seeking service; • Time by which person being served has to respond; and • Clear statement that if no response, default judgment may be entered • Additional information to be contained if it facilitates proper service • Ind. T.R. 4(C) • Summons may also designate manner of service • Ind. T.R. 4(D)

8. Filing Complaint, Summons and Praecipe -- Ind. T.R. 4(B) • When filing complaint or similar pleading must provide clerk with as many copies of complaint and summons as necessary • Clerk must: • Examine, date, sign and affix seal to summons; and • Issue and deliver papers to the appropriate person for service • Praecipe necessary only when further information required to effectuate service • Praecipe must be attached to or entered upon summons • Must include affidavits, requests and any other information related to summons and service • Praecipe then deemed to be part of summons • Separate or additional summons may be issued by clerk upon proper request

9. Manner of Service • Potential manners of service: • Registered or certified mail; • Service on individual at listed address (residence/employment) • Service by sheriff; • Service by service processor; • Service on agent; • Service by publication; and • Service by a party’s appearance • Choice of manner of service may depend upon: • Type of action • Party’s relationship to Indiana • Difficulty in effectuating service

10. Manner of Service (cont.) • Must provide best possible notice available • Morrison v. Prof. Billing Serv., Inc. 559 N.E.2d 366 (Ind. Ct. App. 1990) • Ind. T.R. 4 and Ind. TR. 41(E) impose duty of due diligence upon complaining party when securing service of process • Failure to do so result in motion to dismiss for failure to prosecute Taylor v. Lewis, 577 N.E.2d 986, 989 (Ind. Ct. App. 1991)

11. Manner of Service (cont.) • Party seeking service may designate manner of service upon summons • Ind. T.R. 4(D) • If not so designated -- • Then clerk shall cause service to be made by mail or other public means, provided the mailing addresses are indicated in summons or can be determined • If mailing address not furnished or cannot be determined, or if service by mail or other public means is returned without acceptance – • Then complaint and summons shall promptly be delivered to sheriff who shall serve summons, unless otherwise directed

12. Ind. T.R. 4(E): Serve Summons and Complaint Together • General rule: • Must serve summons and complaint together unless otherwise ordered by court • Failure to serve complaint with summons prevents court from obtaining personal jurisdiction over party • Overhauser v. Fowler, 549 N.E.2d 71, 73 (Ind. Ct. App. 1990): • Court lacked personal jurisdiction when defendant received summons without complaint attached

13. Ind. T.R. 4(E): Serve Summons and Complaint Together (cont.) • Failure to timely issue summons within applicable statute of limitations renders action untimely • See Ray–Hayes v. Heinamann, 760 N.E.2d 172 (Ind. 2002, modified on reh'g, 768 N.E.2d 899 • Held: Civil action untimely commenced when plaintiff did not tender summons to clerk after statute of limitations expired, even though complaint filed and filing fee paid within applicable statutory period • No requirement that summons be delivered to defendant within statutory period • Johnson v. Morgan 871 N.E.2d 1050, 1054 (Ind. Ct. App. 2007)

14. Exceptions to General Rule • When serving by publication: • complaint should not be published • instead summons and complaint are deemed to be served at end of the day of last required publication • When serving by party’s appearance: • summons and complaint are deemed to be served at time of appearance in jurisdiction acquired by appearance

15. Service on Individuals: Ind. T.R. 4.1 • Ind. T.R. 4.1(A) -- service on individual/representative may occur by: • Sending copy of summons and complaint by registered/certified mail; • …or other public means by which written acknowledgement of receipt may be requested/obtained to residence, place of business or employment with return receipt requested and returned showing receipt of letter; • Delivering copy of summons and complaint personally; • Leaving copy of summons and complaint at dwelling house or usual place of abode; or • Serving agent as provided by rule, statute or valid agreement • Follow “copy service” with mailed copy • If serving by last 2 options, must send copy of summons (without complaint) by First Class U.S. Mail to last known address, and this fact must be shown upon the return • Ind. T.R. 4.1(B)

16. Manners of Service (Ind. T.R. 4.1) • Registered/certified mail • Often, the fastest, most effective and inexpensive method. • Used extensively in Indiana for serving nonresidents through governmental agents (i.e., nonresident motorists) • Personal service • Classic “hand to hand” service • May be executed by Sheriff or process server • Dwelling house or usual place of abode • Must leave with person of suitable age and discretion residing therein • Harvey, 1 Ind. Prac., Rules of Procedure Annotated R. 4.1 (3d. ed.) • Stated in disjunctive • One’s dwelling house may not be one’s usual place of abode • Agent • Includes “person of suitable age and discretion whose usual duties/activities include prompt communication of such information” • Id.

17. Part II Service of Particular Individuals and during Particular Causes of Action

18. Serving other types of individuals • Infant or incompetent person – Ind. T.R. 4.2 • If already represented, service must be made upon next of friend/guardian ad litem • If not yet represented, service must be made on court-appointed rep. • If infant has no court-appointed representative, must serve custodial parent • If no parent, person known to be in position of custodian/parent. • If incompetent person has no court-appointed representative, must serve named party and person known to be custodian • Institutionalized person – Ind. T.R. 4.3 • Service must be made by delivering or mailing copy of summons and complaint to official in charge of institution • Imposes duty upon official to: • immediately deliver copies to person; • permit him/her to make provisions for representation by counsel; and • indicate such upon the return

19. Service upon persons for acts done or having effect in Indiana (Ind. T.R. 4.4) • Applies to nonresidents, former residents or persons/organizations of unknown residence • Submit to jurisdiction of Indiana courts. in any action arising from following acts done by them/their agents: • Doing business in Indiana • Causing personal injury/property damage by act/omission done within Indiana; • Causing personal injury/property damage by act/omission done outside Indiana. • Only if: • Regularly does/solicits business; • Engages in other persistent conduct; OR • Derives subst. revenue/benefit from goods, materials, or services used/consumed/rendered in IN

20. Service upon persons for acts done or having effect in Indiana (cont.) • Supplying/contracting to supply goods/services in Indiana; • Owning, using, or possessing real property or interest therein in Indiana; • Insuring or acting as surety for any person, property or risk within Indiana; • Living in martial relationship in Indiana regardless of subsequent departure; • Only if: • Other party to relationship remains in state; and • Related to alimony, custody, child support, or property settlement

21. Service upon persons for acts done or having effect in Indiana (cont.) • Abusing, harassing or disturbing peace of, or violating protective/restraining order for protection of, any person within IN by act/omission done: • in Indiana; or • outside Indiana if part of continuing course of conduct having effect in Indiana

22. Manner of Service under Ind. T.R. 4.4 • If subject to jurisdiction under Ind. T.R. 4.4 may serve with summons according to: • Ind. T.R. 4.1 (discussed earlier) • Ind. T.R. 4.5 (see Ind. T.R. 4.9) • Ind. T.R. 4.6 (discussed later) • Ind. T.R. 4.9 (in rem actions) • May serve summons: • upon person/agent pursuant to Trial Rules; • if outside Indiana, as provided by Ind. T.R. 4.1; • by publication under Ind. T.R. 4.13

23. Serving Organizations (Ind. T.R. 4.6) • Types of organizations and who to serve: • Domestic/foreign organization • Agent appointed (by agreement or law) to receive service; or • If no agent, executive officer • Partnership • General partner • State governmental organization • Executive officer and Attorney General • Local governmental organization • Executive and organization’s attorney

24. Serving Organizations (cont.) • Manner of service – Ind. T.R. 4.6(B) • Must serve in manner provided by Ind. T.R. 4.1 • Must not knowingly direct service at person’s dwelling house/place of abode • Unless address furnished under statutory requirements or valid agreement; or • Affidavit on/attached to summons states that service in another manner is impractical • Service at organization’s office – Ind. T.R. 4.6(C) • If service upon organization cannot be made as provided in Ind. T.R. 4.6(A) or (B): • May serve by leaving copy of summons and complaint at any office of organization located within Indiana with person in charge of such office • Must show such inability upon affidavit or in the return

25. Part III Effectuating Particular Manners of Service

26. Certified/Registered Mail (Ind. T.R. 4.11) • Clerk (or governmental agent under Ind. T.R. 4.10) must send summons and complaint to address supplied upon summons or furnished by person seeking service • Return • Clerk or governmental agent must show: • Date and place of mailing; • A copy of mailed or electronically-transmitted return receipt; and • If and when received by person to show that mailing was accepted/returned • If accepted, by whom • Clerk must file return and receipt with the pleadings, so that it becomes part of the record • If mailing by clerk returned without acceptance, clerk must re-issue summons and complaint for service as requested by person seeking service

27. Service by Sheriff/Officer(Ind. T.R. 4.12) • Who serves: • Sheriff; • Deputy; or • Person specially/regularly appointed by court • Manner of service available if: • Delivering copy personally; or • Leaving copy at dwelling house/place of employment (Ind. T.R. 4.1) • Service effective if made by person not otherwise authorized by rule, but proof of service by that person must be made as witness or by deposition without allowance of expenses as costs • Duty on server: • Mustact promptly and exercise reasonable care to cause service to be made

28. Service by Publication (Ind. T.R. 4.13) • Person seeking service must: • Submit such request upon praecipe for summons along with affidavits stating that: • Diligent search has been made; and • Defendant cannot be found, has concealed his whereabouts, or has left the state • Must prepare contents of summons to be published • Praecipe for summons by publication • Names all persons to be served • Separate publications for each party not required • Clerk/sheriff must sign summons in such manner as to indicate that it is made by his/her authority

29. Part IV General provisions governing proof, validity and scope of service of process

30. Proof of Service (Ind. T.R. 4.15) • Duty to make return • Person making service shall promptly make return upon or attach to copy of summons to be delivered to clerk • Form of return • Signed by person making it and include statement that: • If service was made – • That service was made upon person; and • Time, place, and manner of service; • If service was not made – • Manner in which it was thwarted (in terms of fact/law) • Other information as expressly required by Trial Rules • Return and affidavits as evidence • Clerk must file return (along with summons), praecipe, affidavits furnished with summons/praecipe and all other permitted affidavits with pleadings, etc. • At that time, it is a part of the record and has evidentiary effect

31. Proof of Service (cont.) • Proof of filing and issuance dates • Clerk must enter filing date upon every praecipe, pleading, return, summons, affidavit or other paper filed with or entered of record • Clerk must also enter issuance date upon any summons issued, mailed or delivered by him, or other communication served/transmitted by him • Filing/issuance date constitutes evidence of date of filing /issuance without authentication when entered in court records, or paper/copy thereof properly admitted into evidence • Admission of service • Written admission stating date and place of service, signed by person being served, may be filed with clerk in order to file with pleadings • Part of record, constitutes evidence of proper service and is allowed as evidence

32. Proof of Service (cont.) • Amendment of process/proof of service • Court may allow at any time in its discretion, unless clearly and materially prejudices substantive rights of person against whom process issued • Defects in summons • No summons/service thereof will be set aside/adjudged insufficient when reasonably calculated to inform person to be served that: • Action was instituted against him/her; • Name of the court; and • Time to respond

33. Duty to Aid Service(Ind. T.R. 4.16) • Every person served under Trial Rules must: • Cooperate; • Accept service; • Comply with Trial Rules; and • Acknowledge receipt of papers in signed writing • Only if served personally • If accepting service for another, must: • Promptly deliver papers to person; • Promptly notify person that he holds papers; OR • Within reasonable time, notify clerk/person making service that notice could not be made • Willful violation of Ind. T.R. 4.16 may subject person to contempt proceedings • But person making service cannot subject person being served to penalty/sanction because of service

34. Indiana Tort Claim Notices

35. When and why file tort claim notice? • Procedural prerequisite to initiating tort lawsuit against governmental entity or political subdivision • Indiana Tort Claims Act (“ITCA”), IC 34-13-3, et seq. • Lawsuit barred unless tort claim notice filed within period • Parke County v. Ropak, Inc., 526 N.E.2d 732, 737 (Ind. Ct. App. 1988), reh’g den. • IC 34-13-3-6, -8, -9, -10 and -12 govern filing and content of tort claim notices

36. Statutory Definitions • “Governmental entity”: • State of Indiana • State departments, agencies and commissions • Bureau of Motor Vehicle. • “Political subdivisions”: • Community action agency; • IC 12-14-23-2 • Individual/corporation providing public transportation per contract w/commuter transportation district created • IC 8-5-15 • Volunteer fire dept. • Defined in IC 36-8-12-2 acting pursuant to IC 36-8-17 or contract w/ “unit or fire protection district” • IC 34-13-3-22

37. LCEOC, Inc. v. Greer, 735 N.E.2d 206 (Ind. 2000) • Ind. S.Ct. considered issue of whether county equal opportunity council and community services organization “political subdivisions” • Held: Lake County Equal Opportunity Council (“LCEOC”) was political subdivision, but Greater Hammond Community Service (“GHCS”) was not • LCEOC political subdivision -- “community action agency” under ITCA • Ct. also analyzed entity’s level of public control

38. More on Greer • GHSC argued governmental entity: • Primarily publicly-funded; • Subject to provisions of Indiana Public Records Act; and • Part of its board consisted of public officials • Ct. rejected GHSC’s argument • If organization is governmental entity under statute other than ITCA --not necessarily one under ITCA • Held: GHSC’s alleged level of public control not significant enough to be “public” and afforded ITCA protections • If group is neither specifically named by statute as governmental entity/political subdivision nor providing uniquely governmental services, cannot receive ITCA protection by contracting to be managed by established governmental entity • Greater Hammond Comm. Serv. v. Mutka, 735 N.E.2d 780, 784 (Ind. 2000)

39. Employee Immunity • ITCA immunity to governmental entity for tortuous conduct of employees within employees’ scope of employment • Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 452 (Ind. 2000) • Ensures public employees exercise independent judgment necessary to carry out duties without threats of harassment or litigation • Indiana Dept. of Correction v. Stagg, 556 N.E.2d 1338, 1343 (Ind. Ct. App. 1990), trans. Den.

40. Employee Immunity (cont.) • Governmental entity defends all affiliated parties – does not matter whether against political subdivision, its employee or both • Bienz,674 N.E.2d at 1004(citing Poole v. Chase, 476 N.E.2d 828 (Ind. 1985)) • ITCA provisions do not apply when governmental employee: • Committed criminal act; • Acted outside scope of employment; • Acted maliciously, willfully and/or wantonly; or • Actions were calculated to personally benefit him • IC 34-13-3-5(c) • Tort claim notice would not be necessary in such lawsuits

41. Individual vs. Official Capacity • Significant distinction between claim made against governmental employee in individual vs. official capacity • Governmental employment alone insufficient to trigger ITCA’s notice provision • Bienz, 674 N.E. 2d at 1004. • If plaintiff sues employee in individual capacity, notice required if act/omission causing plaintiff’s loss falls within scope of employment

42. Tort Claim Notice Not Necessary • No tort claim notice required: • Plaintiff actually and reasonably lacks knowledge of governmental employee’s status; • Employee acts in the course of his duties in a manner that disguises governmental employee; or • Employee fails to reveal governmental employee status • Gregor v. Szarmach, 706 N.E.2d 240, 243 (Ind. Ct. App. 1999); see also,Fowler v. Brewer, 773 N.E.2d 858, 866 (Ind. Ct. App. 2002) • Government may be estopped from asserting defense in such situations • Gregor, 706 N.E.2d at 243

43. Content of Tort Claim Notice • Specific information needed in notice • Format of information need not be complex • Short, plain statements acceptable • IC 34-13-3-10 also requires : • Circumstances which brought about the loss; • Extent of the loss; • Time and place that loss occurred; • Names of all persons involved, if known; • Amount of the damages sought; and • Residence of claimant at the time of the loss and time of filing • Notice suffices if advises “of the accident so that it may promptly investigate the surrounding circumstances.” • Galbreath v. City of Indianapolis, 255 N.E.2d 225, 229 (Ind. 1970)

44. More on Content • ITCA also requires tort claim notice to be: • Written; and • Personally delivered/sent by certified/registered mail • IC 34-13-3-12 • If notice not written, may suffice under doctrine of “substantial compliance” • Bd. of Aviation Comm’rs v. Hestor, 473 N.E.2d 151, 154 (Ind. Ct. App. 1985)

45. IPRMC • Must serve notices against political subdivision on governing body and Ind. Political Risk Mgmt. Commission (IPRMC) • IC 34-13-3-8(a) • IPRMC is separate body corporate and politic • Instrumentality of state, but not state agency • Separate from state in its corporate and sovereign capacity • Aids political subdivisions in protecting themselves against liabilities • IC 27-1-29-5 • If not member of IPRMC, then failure to serve notice excused • IC 34-13-3-8(b)

46. How long do I have to file a tort claim notice? • Must file tort claim notice against governmental entity other than state, its departments and agencieswithin 180 days after loss occurs • IC 34-13-3-8 • Must file tort claim notice against state of Indiana, its departments or agencies within 270 days after loss occurs • IC 34-13-3-6 • Filing period is tolled if claimant incapacitated or becomes disabled • IC 34-13-3-9 • Period for filing begins to run once incapacity or disability is removed • IC 34-13-3-9. • Incompetency under ITCA refers to incapacity that makes it unreasonable to subject person to duty to file tort claim notice • Indiana Dept. of Hwys. v. Hughes, 575 N.E.2d 676, 678 (Ind. Ct. App. 1991) (citingLett v. State, 519 N.E.2d 749 (Ind. Ct. App. 1988))

47. More on Lett and Hughes • Lett v. State, 519 N.E.2d 749 (Ind. Ct. App. 1988) • Claimant was paraplegic • Incompetent for 11 months • Held: When claimant’s condition stabilized and he could operate wheelchair on own, he became competent • Period for filing tort claim notice began to run at that time • Ind. Dept. of Hwys. v. Hughes, 575 N.E.2d 676 (Ind. Ct. App. 1991) • Held: Claimant was never incapacitated • Claimant suffered badly broken leg • Spent 2 months in hospital • During hospital stay, she performed numerous tasks, including: • Paying bills, communicating by telephone and mail, seeing visitors, clearly discussing accident and injuries, signing consent to treat forms and contemplating pursuing legal action • Ct. determined that, while physically impaired, claimant’s ability to perform tasks proved that compliance with ITCA not unreasonable

48. Statutory Construction of ITCA • Courts require strict compliance with ITCA notice requirement, timeliness of notice and submission of notice to proper officers • Daugherty v. Dearborn, 827 N.E.2d 34, 36 (Ind. Ct. App. 2005) (citing Volk v. Michigan City, 32 N.E.2d 724, 725 (Ind. 1941)) • But courts liberally construe ITCA when considering whether notice is sufficiently definite as to time, place, nature, etc. of injury • Id. at 35(citing Volk, 32 N.E.2d at 725) • Not all technical violations of this statute are fatal to claim • City of Tipton v. Baxter, 593 N.E.2d 1280, 1282 (Ind. 1992) (citing Allen v. Lake County Jail, 496 N.E.2d 412, 414 (Ind. Ct. App. 1986), reh’g. den.) • Non-compliance with ITCA excused in three separate and distinct doctrines: • Substantial compliance; • Waiver; and • Estoppel

49. Doctrines Excusing Compliance • Substantial compliance • Focus on nature of notice itself • Concerned with extent to which form, content, and timing of notice complies with ITCA • Allen,496 N.E.2d at 415 • Often raised as defense to failure to comply with ITCA’s technical requirements • Waiver • Focus on defendant’s failure to timely raise non-compliance with ITCA as defense • Baxter, 593 N.E.2d at 1282 • Estoppel • Emphasis on representations made by defendant or its agents to plaintiff, which induce plaintiff to reasonably believe that formal notice is unnecessary • Id. • It is significant to note that doctrines of estoppel or waiver are typically unavailable to plaintiff who is represented by counsel

50. Substantial Compliance • Galbreath v. City of Indianapolis, 255 N.E.2d 225 (Ind. 1970) • Ind. S.Ct. explained rationale underlying substantial compliance: • “The purpose of the notice statute being to advise the city of the accident so that it may promptly investigate the surrounding circumstances, we see no need to endorse a policy which renders the statute a trap for the unwary where such purpose has in fact been satisfied.” • Id. at 229 • ITCA requirements liberally construed when deciding whether notice requirement satisfied • avoid denying plaintiffs day in court • Held: Notice, which plaintiff’s husband made without an attorney’s assistance, to the City Legal Department sufficient • City attorney had authority to accept notice on behalf of mayor, whom (according to the notice statute) proper party to serve with notice in suit against City