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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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