Attorney Carl Hall was recently selected to be on the Board of Directors for the DeMotte/Kankakee Valley Rotary Club and serve as the club’s Treasurer. The Demotte/Kankakee Valley Rotary Club serves the greater northern Jasper County area encompassing Demotte and Wheatfield and is a part of Rotary International. The goal of Rotary is to unite people and take action to create lasting change in our communities.
Hodges and Davis-August 2020
On August 18, 2020, Attorney Steven Scott attended the Indianapolis Virtual EEO Seminar. The seminar included presentations from employment professionals from the Equal Employment Opportunity Commission on new changes to federal and state employment laws and inclusion in the workplace. If you or your organization are interested in learning more about employment laws and the requirements under state and federal laws, please contact Steven J. Scott at Hodges and Davis for more information.
The information contained herein does not constitute legal advice, nor does it establish an attorney/client relationship.
Hodges and Davis, P.C. – August 2020
The Indiana Tort Claims Act (“ITCA”) governs tort claims against local governmental entities. The ITCA requires that notice of a claim must be provided to the governing body of the governmental entity, and to the Indiana Political Subdivision Risk Management Commission within 180 days of the complained injury.
Strict compliance with the notice requirements is not mandatory. Instead, a plaintiff need only substantially comply with the ITCA’s requirements. Failure to substantially comply typically results in the claim being barred; but the claim may still proceed if the governmental entity or its agent induces the plaintiff to believe that compliance with the notice requirement is unnecessary.
The Indiana Court of Appeals recently addressed that issue in Madison Consolidated Schools v. Trisha Thurston. In that case, a student was riding a school bus when it struck a guardrail, causing injuries to the student. The student’s mother and the school’s insurer agreed to postpone discussion of settlement until medical treatment had been completed. The insurer indicated that a lawsuit would need to be filed within a certain time, but failed to mention the formal notice requirements of the ITCA. The mother failed to provide formal notice, and filed suit less than two years thereafter. While the school argued that the claim was time-barred, the mother argued that notice was unnecessary since the insurer had recommended waiting for medical care to conclude before any discussion of settlement and never informed her that a tort claim notice was required.
The Court of Appeals determined that cases may proceed under the ITCA under the doctrine of “equitable estoppel”. A plaintiff wishing to base a claim on equitable estoppel must show: (1) lack of actual and constructive knowledge of the facts in question; (2) reliance upon the conduct of the opposing party; and (3) action based on that conduct that changed the plaintiff’s position. While government entities are not generally subject to claims based on equitable estoppel, the Court concluded that those claims do have merit when it is clear that the agents of the governmental entity made representations which induced the Plaintiff to reasonably believe that formal notice was not required. The Court in the Thurston case found that there was evidence of multiple communications between the school’s insurer and the student’s mother and that the notice requirement was never raised or discussed. The Court, therefore, found that whether the student’s mother was excused from complying with the notice requirements of the ITCA based on the theory of equitable estoppel was a question to be decided by the jury at trial.
In light of this case, government entities and their agents must be careful when discussing potential claims with would-be plaintiffs.
This article constitutes a brief summary of the notice requirement under the ITCA. The information provided does not constitute legal advice, nor does it establish an attorney/client relationship. If you have any questions regarding the contents of this article, please contact the attorneys at Hodges and Davis.
Hodges & Davis- August 2020
As of July 1, 2020, certain changes went into effect regarding Indiana’s Probate and Trust statutes pursuant to Senate Enrolled Act 50. Once such change was Indiana Code § 29-1-7-3 regarding the devolution of real property of a decedent. This statute may provide an avenue for distributees to transfer real property without opening a formal Probate Estate.
Under Indiana Code § 29-1-7-23, when a person dies, the person’s real property passes to persons whom it is devised to by their will, or in the absence of a will, to the person’s heirs at law. This passing of real property is, however, subject to the possession of the property by a personal representative if a formal Probate Estate is opened, the election of the surviving spouse and the expenses of administration and the payment of other claims and allowances.
Under the changes to Indiana Code § 29-1-7-23, a person can sign and record a devolution affidavit to establish prima facie evidence of the passage of title to the real property. Under the changes to the statute, that affidavit may contain the following information: (i) the decedent’s name and date of birth; (ii) a statement of the affiant’s relationship to the decedent; (iii) a description of how the decedent acquired an ownership or leasehold interest in the real property including deeds or other instruments recorded in the Office of the Recorder; (iv) a legal description of the real property as it appears in deeds or other instruments; (v) the names of all distributees known to the affiant, (vi) an explanation of how each interest in the property was acquired; and (vii) how any fractional interest to each distributee was calculated and how interests in the real property will be apportioned. The devolution affidavit can then be presented to the county auditor where the real property is located, and then is also recorded with the Office of the Recorder in the same county.
A devolution affidavit, properly filed and recorded in good faith, may be relied upon as prima facie evidence of transfer of the decedent’s title to the real property interest, if the affidavit is filed and at least seven (7) months have elapsed since the decedents death, the clerk of a court has not issued letters testamentary or letters of administration to a court appointed personal representative within the time limits to open a formal Probate Estate and the court has not issued an order otherwise preventing this chapter from applying to the real property.
Several of the changes to the statute that took effect on July 1, 2020, were changes that clarified information in the statute and the affidavit procedure. There were several changes that are worth noting. First, the addition to the word “may” regarding the information that is contained in the devolution affidavit was a significant change. Whereas, the prior statute required certain information to be included in the devolution affidavit, the changes ensure that the affidavit can still be filed absent some of the information that used to be mandatory.
Additionally, one of the big changes to the statute that is of importance to note is that the devolution affidavit no longer requires a statement in the affidavit that seven (7) months has elapsed since the decedent’s death. This means that a devolution affidavit could be filed prior to seven (7) months from the decedent’s death. In light of the statute still containing the provision for reliance on the devolution affidavit after seven (7) months from the decedent’s death, it still may be beneficial to wait until after seven (7) months to file and record the affidavit.
There is no one-size-fits-all approach to a formal Probate Estate or to probate substitutes such as a devolution affidavit. Each individual’s situation is different and unique. If you are interested in learning whether a devolution affidavit may be used in lieu of a formal Probate Estate, please contact Benjamin T. Ballou or Carl J. Hall at Hodges and Davis for more information.
This article provides a brief summary of the changes to Indiana Code § 29-1-7-23 regarding devolution affidavits. The information contained herein does not constitute legal advice, nor does it establish an attorney/client relationship.
Hodges and Davis, P.C. – August 2020
In July of 2020, the Indiana Supreme Court Disciplinary Commission issued an opinion advising lawyers about the ethical risks of third party comments or tags on a lawyer’s social media. The opinion was in response to a prospective or hypothetical question regarding the ethical rules of attorneys and how the rules apply to the hypothetical scenario.
In the opinion, the Commission discusses the “minefield” attorneys must negotiate in monitoring their social media pages and the risks involved in not doing so.
This is the third formal written advisory opinion issued since the Commission began the practice in April of 2018. It is the first advisory opinion issued in 2020.
To read the full advisory opinion please click the link below:
https://www.in.gov/judiciary/discipline/files/dc-opn-1-20.pdf
The information provided does not constitute legal advice, nor does it establish an attorney/client relationship. If you have any questions regarding the contents of this article, please contact the attorneys at Hodges and Davis.
Hodges & Davis- August 2020