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Service of Pleadings and Motions

Clements v. Hall(Ind. Ct. App. April 24, 2012)

In this case, the Court of Appeals reversed a trial court’s denial of a motion for relief from judgment. The defendant’s attorney was not served with the plaintiffs’ summary judgment motion, which the trial court had granted. The plaintiffs argued that they were not required to serve the defendant’s attorney because he had not yet entered an appearance. The Court of Appeals reversed, relying primarily on Smith v. Johnston, 711 N.E.2d 1259 (Ind. 1999), a leading case on how attorneys should deal with parties who are represented by an attorney who has not appeared in a particular lawsuit.

This case demonstrates that it is better to over-serve than under-serve. When in doubt as to whether a party or attorney needs notice of a filing, especially a dispositive motion, serve that party or attorney. This decision and Smith v. Johnston demonstrate that our appellate courts do not consider a lack of appearance determinative of whether a party’s attorney should be served.

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