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Virginia statute of limitations holds in Evansville radio purchase

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Nearly identical provisions in business agreements meant a media owner had to file his complaint against another communications company by the statute of limitations deadline in Virginia, not in Indiana.

In 2000 and 2002, Alan Brill, owner of radio stations and newspaper in medium markets including Evansville, signed confidentiality agreements with Regent Communications Inc. as part of the negotiations to sell his radio stations. Both contracts contain nearly identical choice of law language that the provisions will be interpreted under the laws of the Commonwealth of Virginia.

Brill and Regent disputed the scope of the choice of law language when negotiations fell apart.

In August 2008, Brill filed a complaint against Regent and other defendants for breach of contract, fraud and additional acts of malfeasance. A month later, he filed an amended complaint. In January 2009, he filed a second amended complaint naming Regent as the sole defendant.

Regent responded in August 2010 by filing an Indiana Trial Rule 12(B)(6) motion to dismiss Brill’s second amended complaint. The company claimed Brill had filed after the Virginia five-year statute of limitations had expired.

The trial court denied the motion and Regent appealed.

Before the Indiana Court of Appeals, Brill argued the choice of law provision applied only to substantive law and that Indiana law applied to procedural issues. Therefore, he filed his second amended complaint well within the Indiana six-year statute of limitations.

Regents countered that Virginia law applied in both substantive and procedural matters.

The Court of Appeals agreed with Regent and reversed the denial of the motion to dismiss in Alan R. Brill, Business Management Consultants, LP f/k/a/ Brill Media Company, LP, and the Non-Debtor Companies v. Regent Communications, Inc., n/k/a Townsquare Media, Inc., 82A01-1304-PL-174.

Pointing to OrbusNeich Med. Co. v. Boston Scientific Corp., 694 F. Supp. 2d 106 (D. Mass. 2010), the COA found the additional phrase in the Brill-Regent agreements indicated the parties’ intent that Virginia law governs both substantive and procedural issues.

 
 

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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