Indiana Business Lawyer Blog

An Indiana appellate court reversed the judgment of a trial court which had ruled in favor of a conveyor contractor. While it was an electrical subcontractor that initially brought an action against a conveyor contractor, the contractor filed multiple cross-claims against the subcontractor which resulted in trial court granting the contractor more than a $1.4 million judgment for lost profits and attorney’s fees.

In L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031 (Ind. Ct. App. 2012), Honda contracted with Custom Conveyor, Incorporated (“CCI”) to install conveyor systems for a new factory Honda constructed. Subsequently, CCI subcontracted some of the project to L.H. Controls, Inc. (“LH”), including computer programming and electrical control boxes for some conveyor lines. Soon after, problems and delays arose, which lead to LH falling behind its schedule in completion. This caused Honda to withhold progress payments to CCI. While it took three months longer to install the conveyor system, this did not cause a delay in the ultimate opening of the Honda factory.

Continue reading "Indemnification Clause Indiana Law: L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031 (Ind. Ct. App. 2012)" »

A federal appeals court recently affirmed a lower court’s dismissal of a lawsuit where the plaintiff alleged a taking under the federal and Illinois state constitutions, as well as nuisance claims, and procedural challenges to an amendment of a county ordinance in regard to a renewable energy wind project.

In Muscarello v. Winnebago County Board, the plaintiff, a landowner with multiple agriculturally-zoned tracts, filed a lawsuit against the Winnebago County Board (the “County”) on the basis of 2009 amendment to the County’s zoning ordinance that made it easier for an owner of agriculturally-zoned land to obtain permission to build a wind farm. Although no one had yet applied for a zoning clearance or building permit for a wind farm in the County and no wind farm has actually been built anywhere therein, the plaintiff worried that a wind farm on a property adjacent to hers would cause substantial damage including noise, radar and cell phone interference and stray voltage among other colorful claims. While the United States Court of Appeals for the Seventh Circuit acknowledged that some of the plaintiff’s concerns may be speculative, the injury “need be neither certain nor great to confer standing under Article III of the Constitution.”

Continue reading "Renewable Energy Law: Muscarello v. Winnebago County Board, Case No. 11-2332 (7th Cir. 2012)" »

The Indiana Court of Appeals affirmed an order from the Indiana Utility Regulatory Commission which denied an electric utility company’s petition to seek deferred-accounting treatment for storm-operating expenses.

In Duke Energy Indiana, Inc. v. Office of Utility Consumer Counselor, 983 N.E.2d 160 (Ind. Ct. App. 2012), a southern Indiana wind storm in September 2008 and an ice storm in January 2009 caused approximately $32 million in damage to Duke Energy Indiana, Inc.’s (“Duke”) electrical system. Duke filed a petition with the Indiana Utility Regulatory Commission (IURC) which sought deferred-accounting treatment for $11.6 million. The Office of Utility Consumer Counselor (OUCC), a state agency charged with representing the interests of ratepayers, consumers, opposed Duke’s petition. It contended that Duke’s proposal constituted single-issue ratemaking and retroactive ratemaking, both of which are generally prohibited.

Continue reading "Indiana Utility Law: Duke Energy Indiana, Inc. v. Office of Utility Consumer Counselor, 983 N.E.2d 160 (Ind. Ct. App. 2012)" »

The Indiana Court of Appeals recently affirmed a trial court’s refusal to set aside an agreement that was entered into by a non-for-profit utility—West Boggs Sewer District (“West Boggs”) and a group of Amish neighbors. The Court also affirmed the trial court’s decision in refusing to award attorney’s fees to West Boggs against most of the Amish parties.

In Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363 (Ind. Ct. App. 2012), West Boggs installed a sanitary sewer structure adjacent to parcels of property owned by a group of individual members of the Old Amish Order community (“Wagler” or “the members”). A state statute allows a utility like West Boggs to compel connection to the sewer system if it is within three hundred feet of an individual’s property line. Because the sewer system came within the statutory requirements, West Boggs sent letters to the members notifying them of the operational availability of the system and that “connection should be made by [these properties] to West Boggs’ system” on or before a certain date.

Continue reading "Indiana Utility Law: Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363 (Ind. Ct. App. 2012)" »

The U.S. Equal Employment Opportunity Commission (the “Commission”), the office which enforces Title VII of the Civil Rights Act of 1964 (“Title VII”), has released guidance this year on the consideration of arrest and conviction records in employment decisions.¹ Title VII, as most employers are aware, prohibits employment discrimination based upon race, color, religion, sex, or national origin.

In some instances, an employer’s use of an individual’s arrest record or criminal history in making employment decisions may constitute employment discrimination under Title VII. There are two main ways this can occur. First, if an employer treats criminal information differently for different applicants or employees based upon race, color, religion, sex, or national origin, discrimination may be found based upon disparate treatment. Second, even a neutral employer policy may violate Title VII if it disproportionately impacts individuals protected by Title VII and may be illegal if not related and consistent with a business necessity.

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In a memorandum released in 2012, the National Labor Relations Board (“NLRB”) explained its position on various social media policies after having reviewed the policies of seven employers, finding six of them to contain unlawful provisions. The rules cited by the NLRB apply to private sector employers and employees, regardless of whether or not employees are members of a labor union. Based upon this memorandum by NLRB, a recent Employment Alert has suggested that employers review social media and other confidentiality, media contact, and employee conduct policies, regardless of how recently those policies have been reviewed.

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The Indiana Court of Appeals recently reversed a trial court’s decision to grant judgment in favor of a purchaser of a business’s assets after that party brought suit against the business shareholders. The purchaser alleged it was entitled to collect certain assets as part of that sale, while the business filed counterclaims for conversion of personal property and disputed an award of attorney fees. In Whiskey Barrel Planters Co. v. American Gardenworks, Inc., 966 N.E.2d 711 (Ind. Ct. App. 2012), the business (“Whiskey Barrel”) manufactured and shipped planters and garden accessories from its Indiana facility and the sole shareholders were husband and wife.

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Review of Whiskey Barrel Planters Co. v. American Gardenworks, Inc.
By: Jeremy L. Fetty" »

The Indiana Court of Appeals recently reversed a trial court’s grant of judgment in favor of equipment supplier where a subcontractor filed suit against that supplier to challenge the supplier’s claim under the Personal Liability Notice (PLN) Statute. In R.T. Moore Co., Inc. v. Slant/Fin Corp, 966 N.E.2d 636 (Ind. Ct. App. 2012), the materials supplier (“Slant/Fin”) provided construction materials which were ordered from a second supplier who received the original order from a subcontractor. When the second supplier failed to pay Slant/Fin for the materials, Slant Fin filed a “Notice of Personal Liability” claim pursuant to Ind. Code section 32-28-3-9 (“the PLN Statute”) against the owners of the construction project for monies it believed it was owed. To protect against the possibility of double payment, the owners withheld monies owed to the construction project participants. The subcontractor then filed suit against Slant/Fin.

Continue reading "Indiana Construction Law
Summary of R.T. Moore Co., Inc. v. Slant/Fin Corp.
By: Jeremy L. Fetty
" »

The Jumpstart Our Business Startups Act (“JOBS Act” or “the Act”) was a bill passed with bipartisan support by Congress in 2011 and signed into law by President Obama in April 2012. The goal of the law is to encourage funding for small businesses, or “emerging growth companies” in the words of the Act, to facilitate job creation and investment by easing various securities regulations. It enables a private company to sell up to $1 million of securities over a 12-month period to investors without needing to register the securities with the Securities and Exchange Commission (SEC). Sales of this type are what the Act describes as “crowdfunding:” the novel yet democratic process by which capital and other resources are aggregated from a traditionally smaller group of people for the purpose of funding a business venture, investment opportunity, or even a nonprofit.

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By: Jeremy L. Fetty
" »

On July 12, 2011, the Indiana Court of Appeals held that an oil refinery that sold natural gas to a third-party tenant on its property was a “public utility” within the meaning of Indiana Code section 8-1-2-87.5(b). In BP Products v. Indiana Office of Utility Consumer Counselor, 964 N.E.2d 234 (Ind. Ct. App. 2011), the court reversed a previous order from the Indiana Utility Regulatory Commission (“IURC”) which determined that BP was not a public utility with respect to its provision of natural gas to Marsulex – a tenant on BP’s property that provided materials necessary to BP’s manufacturing process. If an entity is considered a “public utility” as defined by that statute, it must obtain certifications from the IURC prior to engaging in transportation of gas.

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What is a Public Utility?

By: Jeremy L. Fetty" »

Indiana courts will not pierce the corporate veil absent a causal connection between the misuse of the corporate form and fraud or injustice. In CBR Event Decorators v. Gates, 962 N.E.2d 1276 (Ind. Ct. App. 2012), the court refused to pierce the corporate veil and hold the shareholders personally liable, as the plaintiff had failed to establish such causal connection. In Gates, defendants agreed to invest in a company that the plaintiff had loaned money to but had never been repaid. Prior to investing in the company, the defendants formed a limited liability company (LLC), to which the plaintiff was informed of the LLC formation. After investing in the company, the defendants entered into a purchase agreement with the plaintiff for the sale plaintiff’s business assets. After the purchase agreement was signed by both parties, the defendants learned of defects in their investment company. Upon learning of the company’s status, the investors requested to renegotiate the contract and stop-payment on the down payment submitted to plaintiff after signing the purchase agreement. Plaintiff rejected the proposed terms of a new purchase agreement and demanded the stop-payment not be placed on the check. The shareholders eventually placed a stop-payment on the check and the plaintiff sued, claiming the corporate veil should be pierced because of misrepresentation and fraud on the part of the shareholders.

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Indiana Courts Will Not Pierce the Corporate Veil Absent a Causal Connection Between Misuse of Corporate Form and Fraud or Injustice
By: Jeremy L. Fetty" »

In Ziese & Sons Excavating, Inc. v. Boyer Const. Corp. and Boyer Construction Group Corp., 2012 WL 1066026 (Ind. Ct. App. 2012), the court stated that summary judgment was inappropriate after finding genuine issues of material fact as to both the questions of piercing the corporate veil and successor liability, addressing issues when a corporation is similar in name, operation, shareholders, owners, employees, and project ownership. In this case, Ziese had performed work for Boyer Construction Corporation (“Corporation”) on the Knode Creek Retail Development project (“Project”). After completing the Project, Corporation never paid Ziese. Two years later, Boyer Construction Group Corporation (“Group”) was formed, which performed the same business as Corporation. Further, Group purchased assets from Corporation, including two contracts and personal assets, and had the same individuals who owned, ran, or where employed by Corporation. Finally, Group used Corporation’s website, trademark and logo, and issued a check to Ziese for partial payment for its work on the Project. Pursuant to nonpayment and Group’s creation, Ziese sued both Corporation and Group for payment for services rendered.

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Indiana Courts May Pierce the Corporate Veil or Find Successor Liability When Two Corporations are Too Similar
By: Jeremy L. Fetty" »