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For want of $2, negligence claim is untimely

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A filing fee that was $2 less than required for a negligence claim in Clark County but was corrected and paid in full after the statute of limitations ran out may not proceed, the Indiana Court of Appeals held Thursday.

A clerk noticed that when Thomas Palmer filed a negligence action against Natasha F. Hortenberry in 2010 related to an auto accident, a check for $137 accompanied the complaint, but the fee should have been $139. The court clerk notified Palmer of the mistake, and he mailed a check for $2 the next day, and the court granted his motion that the complaint be treated as timely filed.

That same day, an attorney appeared for Hortenberry and asked the court to set aside the order treating the suit as timely, but the court denied the motion.

“Because Indiana Trial Rule 3 and Indiana Supreme Court precedent clearly indicate that paying the filing fee is required for the commencement of an action, we conclude that the trial court erred by denying Hortenberry’s motion. Therefore, we reverse and remand,” Judge Terry Crone wrote for the panel in Natasha F. Hortenberry v. Thomas Palmer, 10A04-1301-CT-17.

The trial court relied on Trial Rule 1 language to find “an inadvertent clerical error (a $2.00 shortfall of the fee that was only recently increased) should not deprive Plaintiff of a right to litigate his claim in court.”

The appeals panel said the court should have instead looked to the “bright line rule” it believes was set by the Supreme Court. “We conclude that the trial court erred by relying on Trial Rule 1 to allow the case to proceed rather than applying the clear language of Trial Rule 3, and we reverse the ruling of the trial court and remand for further proceedings consistent with this opinion,” Crone wrote.



 

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  • For want of $2
    I would rather filing fees be increased $20 now than $2 each year for the next 10 years. It would help eliminate these errors.

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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