Sued by Cavalry, trying arbitration

[frenchtoast]

Hello,

First of all, thank you all for the great amount of information I have been able to acquire on these forums. It's been a huge help.

My situation:

Last year I was sued by a firm representing Cavalry, for less than $5k. The OC Is Citi. The contract allows for arbitration with JAMS and AAA. I filed my answer as well as my MTC at the same time. I expected a hearing to be set for my MTC, however none was set. About three months after I filed my MTC, a response was filed by the Plaintiff basically stating I didn't properly invoke arbitration. There was also no ruling made on my MTC, so I did not attempt to my JAMS demand yet. So now, over a year has gone by, and the plaintiff has filed a Motion for Summary Judgement. Again, there has been no ruling on my MTC.

Any advice on what I should do? Should I go ahead and start the JAMS process, and send copies of that in with a response to their Motion for Summary Judgement? 

[BV80]

8 hours ago, frenchtoast said:

Hello,

First of all, thank you all for the great amount of information I have been able to acquire on these forums. It's been a huge help.

My situation:

Last year I was sued by a firm representing Cavalry, for less than $5k. The OC Is Citi. The contract allows for arbitration with JAMS and AAA. I filed my answer as well as my MTC at the same time. I expected a hearing to be set for my MTC, however none was set. About three months after I filed my MTC, a response was filed by the Plaintiff basically stating I didn't properly invoke arbitration. There was also no ruling made on my MTC, so I did not attempt to my JAMS demand yet. So now, over a year has gone by, and the plaintiff has filed a Motion for Summary Judgement. Again, there has been no ruling on my MTC.

Any advice on what I should do? Should I go ahead and start the JAMS process, and send copies of that in with a response to their Motion for Summary Judgement? 

Did you request a hearing on your MTC?

[frenchtoast]

20 hours ago, BV80 said:

Did you request a hearing on your MTC?

From everything I have gathered, the courts here determine whether or not a hearing is needed, and schedule one if needed. I don't believe I am supposed to request one. However I am not 100 percent certain on that. I cannot find anything in my local rules about requesting a hearing on a motion. I have read other districts rules in my state that do have information about requesting hearings on motions, but not mine. 

If it's safe to do so, I'll draw up a request for a hearing and file it. 

[frenchtoast]

I've confirmed that I do not request a hearing. It should also be noted that the JDB's reply to my MTC was done so 90 days after I filed the MTC. I believe local rules state that they have 30 days. So I believe at this point my option is to file an objection to the motion for summary judgment. I'm just wondering if I should go ahead and start the JAMS process and include that paperwork in with my objection or not. Also if anyone has any rough templates for an objection to a motion for summary judgment that would be much appreciated.

 

Thanks for any help/advice

[frenchtoast]

Update:

 

The judge has ruled in favor for a motion for summary judgement against me, after having not ruled at all on my motion to compel arbitration. I was told I do not request a hearing, that one would be set if need be. 

Any advise on my next steps? Considering the judge completely ignored my motion?

[Harry Seaward]

You're going to have to appeal to get this fixed. Deadlines are critical so start doing your homework ASAP if this is the route you want to go. 

[frenchtoast]

10 hours ago, Harry Seaward said:

You're going to have to appeal to get this fixed. Deadlines are critical so start doing your homework ASAP if this is the route you want to go. 

In my state, there is a "Lazy Judge" rule that basically states if a judge doesn't rule on a motion, or set it for hearing, that this rule can be invoked, and the Supreme Court of my state can appoint a special judge to hear the motion. Which basically takes it out of the jurisdiction of my court. I'm assuming that since a judgment has already been ordered, I would not be able to invoke this rule?

I never invoked this, because I really didn't think it was going to be possible for the judge to just move on without having ruled on my MTC. Guess I was wrong..

I've been researching the appeals process in my State and found some forms I can use. I guess my biggest question is, what will happen when I appeal? If they don't agree with it, and overturn the judgment, will it just simply be dismissed? Or will they send it back to the trial court, so that the trial court and rule on my MTC?

[Harry Seaward]

4 hours ago, frenchtoast said:

I never invoked this, because I really didn't think it was going to be possible for the judge to just move on without having ruled on my MTC.

They can do whatever they want. That's why appeals exist. 

In your case, the "lazy judge" rule may still be invoked, however if you go down that road and find out you were wrong, you will likely have missed your window of opportunity to appeal. 

[frenchtoast]

19 hours ago, Harry Seaward said:

They can do whatever they want. That's why appeals exist. 

In your case, the "lazy judge" rule may still be invoked, however if you go down that road and find out you were wrong, you will likely have missed your window of opportunity to appeal. 

Thanks for your advice. 

I'm a little confused on filing my appeal. If I'm reading the rules correctly, I don't believe that I have to file a Motion to Correct Error with the trial court prior to filing my Notice of Appeal. Am I correct on that?

Also, has anyone else been in this situation and had a successful appeal? I've done some searching on here but have not been able to locate anything.

 

Thanks again. 

[Harry Seaward]

The rules for appeals are jurisdiction-specific. It's rare that a MTC is denied, or ignored as in your case, and appeals on MTC is even more rare since some people don't bother appealing. The good news is that, to my knowledge, all of the MTC appeals from this board have been successful. 

I'm in AZ and have been through a civil appeal here, so if you were here, i could walk you through it. The best advice i can give is to research and become familiar with your local appeal rules. Procedure is more formal in appeals, so it's important you understand all of the deadlines. 

[frenchtoast]

6 hours ago, Harry Seaward said:

The rules for appeals are jurisdiction-specific. It's rare that a MTC is denied, or ignored as in your case, and appeals on MTC is even more rare since some people don't bother appealing. The good news is that, to my knowledge, all of the MTC appeals from this board have been successful. 

I'm in AZ and have been through a civil appeal here, so if you were here, i could walk you through it. The best advice i can give is to research and become familiar with your local appeal rules. Procedure is more formal in appeals, so it's important you understand all of the deadlines. 

Good news is, I have found some IN Court of Appeals opinions reversing denials of arbitration motions. The appeals process in IN seems straightforward, there's just a few things that get me in a bind, basically due to the fact that there was no order on my MTC. A section of the Notice to Appeal form used in IN Says to list the title of judgment/Order being appealed. I know I am appealing the granting of the summary judgment, but don't I also want to appeal the fact that there was no ruling on my MTC? Or will the Court of Appeals realize that it has not been ruled on?

Would it be wise to include my MTC with my Notice of Appeal, along with the order on the summary judgment? Or will they request all of that from the trial courts? 

[Harry Seaward]

3 hours ago, frenchtoast said:

I know I am appealing the granting of the summary judgment, but don't I also want to appeal the fact that there was no ruling on my MTC? Or will the Court of Appeals realize that it has not been ruled on?

Yes. Most jurisdictions have a statute that says court proceedings must be stayed pending the ruling on a MTC.

This appears to be the one that applies to your situation:

IC 34-57-2-3    
        (d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application for an order for arbitration has been made under this section (or IC 34-4-2-3 before its repeal), or, if the issue is severable, the stay may be with respect to the issue only. When the application is made in such an action or proceeding, the order for arbitration must include such a stay.

 

[Harry Seaward]

I should mention that if you didn't cite that statute in your MTC, there's a possibility the appellate court will find that statute doesn't apply. 

[frenchtoast]

48 minutes ago, Harry Seaward said:

I should mention that if you didn't cite that statute in your MTC, there's a possibility the appellate court will find that statute doesn't apply. 

I did not cite that statute in my MTC as I did not know that it existed. I did cite Federal and Indiana case law regarding the issue of arbitration, but not that specific statute. I wouldn't think that specifically not citing that statute would determine that it does not apply to my situation considering it is state law, and I applied for an order for arbitration. But it sounds like you know more than me about this. 

I'm simply trying to include everything I need to in my Notice of Appeal. I've found several appellate cases dealing with arbitration, but none where a judge had basically ignored a motion. And I have no found any appellate cases where a judge has ignored any motion, not just an MTC. 

Do I even have grounds for an appeal? According to that statute I do, however, I never invoked the lazy judge rule when I could have. My issue is, the judge basically never even acknowledged that my MTC even existed. Just proceeded like it wasn't even there. 

When I finish my Notice of Appeal, I'll post a redacted version and maybe someone can shed some light on if it looks good enough. I assume after I file my Notice of Appeal I'll have to draft up a brief to file with the court of appeals as well. I've found some I can use as a general guideline.

[Harry Seaward]

11 minutes ago, frenchtoast said:

Do I even have grounds for an appeal?

This would be up to the appellate court.  I'm saying you should expect Cavalry to argue that you don't have grounds because you didn't cite the local statute, but I think that by citing IN caselaw (which was almost certainly based on the IN statute I posted), you can realistically expect the appellate court to find that you did lay a claim to that statute, even if it wasn't a direct cite.

16 minutes ago, frenchtoast said:

I'm simply trying to include everything I need to in my Notice of Appeal.

What do your rules say about the notice of appeal?  It's usually just a simple notice identifying the ruling that you want the appellate court to hear.  You don't usually start making your appeal arguments until your case is accepted by the appellate court.

[frenchtoast]

11 minutes ago, Harry Seaward said:

This would be up to the appellate court.  I'm saying you should expect Cavalry to argue that you don't have grounds because you didn't cite the local statute, but I think that by citing IN caselaw (which was almost certainly based on the IN statute I posted), you can realistically expect the appellate court to find that you did lay a claim to that statute, even if it wasn't a direct cite.

What do your rules say about the notice of appeal?  It's usually just a simple notice identifying the ruling that you want the appellate court to hear.  You don't usually start making your appeal arguments until your case is accepted by the appellate court.

Right, the notice of appeal is just information pertaining to the case and what ruling I want to be heard. I guess what I am trying to say is there was no ruling on my MTC so how can I include that? There's no order to include with it. The only thing that was ruled on was the motion for summary judgment. Whereas if my MTC would have been denied, I could include that order in my Notice of Appeal and state that is apart of what I want to be heard. 

[Harry Seaward]

5 minutes ago, frenchtoast said:

I guess what I am trying to say is there was no ruling on my MTC so how can I include that? There's no order to include with it. The only thing that was ruled on was the motion for summary judgment.

The IN statute mandates a stay on proceedings when a party to a lawsuit has made an application for an order to arbitrate (a MTC), and the court in your case ignored that statute.

There has been some debate on the board here regarding what a 'stay of proceedings' would encompass.  It's pretty obvious a court couldn't hear a trial on the matter that has been stayed, but does that necessarily mean an MSJ would fall under the same umbrella?  I would be prepared to argue that a granted MSJ has the same effect as a trial on the merits (both are equally dispositive), and therefore must be treated the same.

[frenchtoast]

13 minutes ago, Harry Seaward said:

The IN statute mandates a stay on proceedings when a party to a lawsuit has made an application for an order to arbitrate (a MTC), and the court in your case ignored that statute.

There has been some debate on the board here regarding what a 'stay of proceedings' would encompass.  It's pretty obvious a court couldn't hear a trial on the matter that has been stayed, but does that necessarily mean an MSJ would fall under the same umbrella?  I would be prepared to argue that a granted MSJ has the same effect as a trial on the merits (both are equally dispositive), and therefore must be treated the same.

Would that be something I would even need to argue considering there was no 'stay of the proceedings'? In order for there to be a 'stay in the proceedings' the judge would have to order it correct? I feel like I would mostly be arguing that since I elected to arbitrate by filing my MTC, and with supporting law and case law, it would take the case out of the jurisdiction of the court. 

But even with all of that, I still have not been able to find anything in regards to a judge completely ignoring a motion and continuing with the case. I cannot find if I was in the wrong but not invoking the lazy judge rule, or if the judge was in the wrong because technically there should have been a stay in the proceedings as soon as I filed my MTC.  

[Harry Seaward]

10 minutes ago, frenchtoast said:

the judge was in the wrong because technically there should have been a stay in the proceedings as soon as I filed my MTC.

This needs to be the foundation of your appeal.  The In statute mandates an automatic stay of proceedings the second a MTC is filed.  The IN statute prohibits the court from granting an MSJ until it first rules on (denies) the MTC.

I found this case that talks about the applicability of 34-57-2-3(d), even when it's not cited in the MTC:

"Although not mentioned by the parties, Ind.Code § 34-57-2-3(d) and (f) are relevant to this issue"

Harlow v. Parkevich, 868 NE 2d 822, 830 - Ind: Court of Appeals 2007
https://scholar.google.com/scholar_case?case=12627190844688510209

[frenchtoast]

20 minutes ago, Harry Seaward said:

This needs to be the foundation of your appeal.  The In statute mandates an automatic stay of proceedings the second a MTC is filed.  The IN statute prohibits the court from granting an MSJ until it first rules on (denies) the MTC.

I found this case that talks about the applicability of 34-57-2-3(d), even when it's not cited in the MTC:

"Although not mentioned by the parties, Ind.Code § 34-57-2-3(d) and (f) are relevant to this issue"

Harlow v. Parkevich, 868 NE 2d 822, 830 - Ind: Court of Appeals 2007
https://scholar.google.com/scholar_case?case=12627190844688510209

Thank you for this! 

I will file my Notice of Appeal on friday. After that its a waiting game. Once the clerk of my court gets everything to the clerk of the court of appeals, I'll have 30 days to file my brief. That will be the next big step. I'll keep this updated. Thanks for your help. 

[frenchtoast]

On 1/15/2020 at 10:33 PM, Harry Seaward said:

This needs to be the foundation of your appeal.  The In statute mandates an automatic stay of proceedings the second a MTC is filed.  The IN statute prohibits the court from granting an MSJ until it first rules on (denies) the MTC.

I found this case that talks about the applicability of 34-57-2-3(d), even when it's not cited in the MTC:

"Although not mentioned by the parties, Ind.Code § 34-57-2-3(d) and (f) are relevant to this issue"

Harlow v. Parkevich, 868 NE 2d 822, 830 - Ind: Court of Appeals 2007
https://scholar.google.com/scholar_case?case=12627190844688510209

I've found an Appeals case in Indiana that addresses the trial courts failure to rule on a motion. 

                 "Strutz himself is in error in raising these issues on appeal, since error can not be based on a court's failure to rule on a motion. In Re Paternity of Tompkins (1989), Ind. App., 542 N.E.2d 1009, 1012. The litigant's sole remedy is provided in Trial Rule 53.1. Misner v. Presdorf (1981), Ind. App., 421 N.E.2d 684, 687, transfer denied."

 

Strutz v. McNagny, 558 NE 2d 1103 - Ind: Court of Appeals, 3rd Dist. 1990

https://scholar.google.com/scholar_case?case=11003109882942191969&hl=en&as_sdt=800006

 

 

So in my mind, according to this case, I cannot appeal that the court erred in not issuing an order on my MTC because I did not properly invoke the lazy judge rule. With all of this being said, does that ruin any chance I have of winning this appeal? 

[frenchtoast]

After conducting some more research, I believe my best option for my next step is not filing a notice of appeal, but filing a motion to correct error with the trial court. In this motion I will cite 34-57-2-3(d) stating that upon my application for an order on arbitration, any proceedings should have been stayed. It appears this is the best practice to use before appealing, as all appellate cases I've read, the appellant has filed a motion to correct errors prior to appealing. This will also extend my deadline for appeal by another 30 days from when I file.  If my motion to correct errors is denied, then I will have another final order that can be included in the appeal. 

[Harry Seaward]

Sounds like a plan. 

[frenchtoast]

On 1/17/2020 at 10:10 AM, Harry Seaward said:

Sounds like a plan. 

So, I filed my Motion to Correct Error, basically citing the above referenced statute and stating that all proceedings should have been stayed until the court either denied or compelled arbitration. The plaintiff responded and stated that the case was stayed due to my MTC, and that I did not properly invoke arbitration. They stated I failed to contact an arbitration firm and that my inaction does not indefinitely stay the case.

How do the courts look at this? I feel like it would have been unwise of me to start the Arbitration process without an order from the court compelling arbitration. I could have spent the $250 initial fee for arbitration, and the court then subsequently denies the motion, and I'm out of that cost. Maybe I'm wrong in this?  

I don't believe I can reply to their opposition of my Motion to Correct Error. 

[Harry Seaward]

2 minutes ago, frenchtoast said:

I don't believe I can reply to their opposition of my Motion to Correct Error. 

Most jurisdictions allow the filing party to respond once to the opposing party before the matter is 'at issue' with the court. 

Technically plaintiff is correct that the matter had been stayed because of your MTC, but a.) you could not initiate arb because you had not received the court's blessing, and b) plaintiff themselves apparently didn't recognize the stay as evidenced by their filing of an MSJ amid your outstanding MtC.