Appeals

Why hire us to handle your appeal? Because appeals are consequential, and we do a lot of them. Appeals have their own rules, depend heavily on the written word and require strong organizational skills. Appeals can be lost on procedural technicalities, poorly written submissions or ineffective oral argument.

The attorneys of Fletcher Van Gilder have prosecuted, defended, written and argued hundreds of appeals on a wide array of matters. Our appellate work can be seen in more than 150 reported decisions of state and federal appeals courts. Some recent successes include:

Trusts and Estates

In re Stephen L. Chapman Irrevocable Trust Agreement, 953 N.E.2d 573 (Ind.Ct.App. 2011) involved a marriage dissolution proceeding between a trust beneficiary and his wife. While the divorce case was pending, the trustees filed a petition to modify the date of distribution of the trust assets to the husband. The trial court granted the petition, and the wife, represented by our David Bailey and two other attorneys, appealed. The court of appeals reversed, and the wife won the appeal, the court holding that the dissolution of the beneficiary’s marriage at the time of distribution of the trust assets was not unforeseen or not anticipated, and thus the trustees were not entitled to reformation of trust.

Lender Liability

American Heritage Banco, Inc. v. Cranston, 928 N.E.2d 239 (Ind.Ct.App. 2010). In this appeal, Martin Fletcher and Dan McNamara represented a former bank. The case was a mortgage foreclosure in which the mortgagors counterclaimed for constructive fraud, and won. On appeal, the court held that substantial evidence did not support finding that the bank, through its majority shareholder, had a special relationship with the borrower, and that even if a duty had been owed and breached, the bank did not ratify shareholder’s allegedly fraudulent conduct.

Securities/Investor Litigation

Lean v. Reed, 876 N.E.2d 1104, Blue Sky L. Rep. P 74, 674 (Ind. 2007). Martin Fletcher and David Bailey represented the purchasers of common stock in a corporation who had paid for the stock using their stock in another corporation. The purchasers sued the first corporation and its directors under the Indiana Securities Act, alleging that the defendants had sold unregistered securities and failed to make material disclosures. The trial court granted partial summary judgment to the purchasers as to their claims against an outside director, and the director appealed. The Indiana Court of Appeals and Indiana Supreme Court affirmed in favor of the purchasers, holding that the outside director did not establish an affirmative defense to liability under the Securities Act.

First Party Insurance

Everett Cash Mut. Ins. Co. v. Taylor, 926 N.E.2d 1008 (Ind. 2010). Jim Fenton represented policy holders in this insurance coverage dispute with a farm personal liability insurer, alleging breach of contract and estoppel claims. The insurer had denied coverage for a claim for injuries suffered by an employee of an independent contractor who was doing work on the insureds’ farm. The injured employee claimed the insured farmers were liable under Indiana workers’ compensation law. As a matter of first impression, the Indiana Supreme Court held that the injury was an “occurrence” under the policy for which coverage was available, and that the workers’ compensation exclusion in the policy did not apply to exclude coverage for a case in which the contractor failed to carry workers’ compensation insurance.

Governmental Immunity – Amicus Representation

Davis v. Animal Control—City of Evansville, 948 N.E.2d 1161 (Ind. 2011). In this case, a man sued the City of Evansville for injuries he sustained when he was attacked by dog in his neighborhood. The trial court granted summary judgment for the defendant, and the plaintiff appealed. Tim Manges and Jim Fenton teamed to write a brief on behalf of Amici Curiae Indiana Association of Cities & Towns, and Indiana Municipal Lawyers Association. The holding of the case was that the city and its animal control department were entitled to law enforcement immunity under the Indiana Tort Claims Act.

Police Benefits

Fort Wayne Patrolmen’s Benev. Ass’n, Inc. v. City of Fort Wayne, 903 N.E.2d 493 (Ind.Ct.App. 2009). Kate Brogan represented the City of Fort Wayne in this suit filed by a police officer and police union seeking damages and a declaratory judgment that the city was liable for injuries sustained by the officer while off-duty. The officer was involved in an accident while driving a city-owned vehicle pursuant to a city policy that allowed officers to drive their police vehicles for personal use while off-duty. The trial court granted summary judgment for the city. The issue in the case was whether the officer had been injured “while performing a duty” for the purposes of a statute that required the city to pay for the care of a police officer who suffers an injury while performing the person’s duty. The court of appeals affirmed the trial court in favor of the City of Fort Wayne.

Title VII

Bryant v. Fort Wayne Metropolitan Human Relations Com’n, 284 Fed.Appx. 335 (7th Cir. 2008). Kate Brogan won summary judgment for the City of Fort Wayne in this case brought by a former employee alleging discrimination based on sex and retaliation in violation of Title VII, and defamation. The court of appeals affirmed, holding that the district court did not abuse its discretion in striking employee’s tardy responses to the city’s requests for admission.

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