COA: Claims against employer, attorney made in bad faith

June 13, 2018

A man’s claims against a temporary employer and the employer’s attorney were properly dismissed, the Indiana Court of Appeals determined Wednesday, upholding a ruling in favor of the defendants.

On January 28, 2015, Brian Wynne began work on a $2,500 home improvement project at Tyson Burris’s home, where he removed flooring, demolished a wall and installed new flooring. As the project proceeded, Burris started to notice “red flags” and suspected Wynne had stolen kitchen appliances that he brought to the property to try and sell to Burris and his wife.

Burris contacted local authorities and discovered Wynne was a suspect in a recent burglary. On February 3, 2015, Wynne was arrested for burglary while working at Burris’s home. Upon bonding out of jail, Wynne contacted Burris to discuss a payoff amount for his work on the project. He was directed to Burris’ attorney, Brian Alsip, to complete the settlement. A $1,400 check was made out to Wynne with the understanding that he would be required to sign a release to receive the check from Alsip. However, Wynne did not obtain the check as he was arrested on warrant the same day he was scheduled to receive it.

Wynne arranged for his girlfriend, Barbara Mooney, to pick up the check and reminded her she had his power of attorney. Wynne had verbally assented to the POA provided by the jail, appropriately filling in some blanks on the form with his name, as well as Mooney’s. However, he did not sign his name on the signature line or provide his Social Security number, and when the form was returned to Mooney, she mistakenly signed her name and provided her Social Security number where Wynne was supposed to provide that information. The form was then presented to an employee of the sheriff’s office who notarized the POA form without properly checking it first.   

On March 23, 2015, Mooney signed the settlement agreement and general release on Wynne’s behalf, and Alsip gave her the $1,400 cashier’s check made payable to Wynne. But on February 24, 2017, Wynne filed a small claims action against Burris for services rendered and against Alsip for negligence in releasing a cashier’s check to Mooney despite being presented with an incomplete POA document.

In a ruling Wednesday, the Indiana Court of Appeals affirmed the trial court’s determination that Wynne’s claims were in bad faith in Brian K. Wynne v. Tyson Burris and Brian K. Alsip, 41A04-1710-SC-2363. Wynne’s first objection was that recorded jail calls had not been disclosed to him in discovery. Judge Robert Altice Jr., writing for the unanimous panel, said Wynne’s technical claims of alleged discovery violations and reliance on the Indiana Trial Rules were misplaced due to the informal nature of small claims hearings.

The appellate court also determined that Wynne conferred actual authority to Mooney to act on his behalf with respect to the settlement with Burris.

 “In phone conversations with Mooney, Wynne referred to the POA and ‘reiterate[d] numerous times that [she was] his power of attorney,’” Altice wrote in the opinion, concluding the facts amply supported the Johnson Superior Court’s conclusion.

Wynne also argued that Alsip could not represent himself and that he was required to be represented by legal counsel because Wynne’s claims exceeded $1,500. However, the trial court concluded that Wynne sued Alsip as an individual, not in the context of his legal profession.

Finally, Wynne asserted that the POA was invalid and Alsip was negligent when he released the check to Mooney without checking its validity. The court determined that Alsip did not owe a duty of care to Wynne, as Alsip was Burris’ attorney, not Wynne’s.


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