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Cleveland Range, LLC v. Lincoln Fort Wayne Assocs., LLC

Court of Appeals of Indiana

September 4, 2015

Cleveland Range, LLC, Appellant-Respondent,
v.
Lincoln Fort Wayne Associates, LLC, Appellee-Petitioner

Appeal from the Allen Superior Court; The Honorable David J. Avery, Judge; 02D09-1411-PL-418.

ATTORNEY FOR APPELLANT: Kelly J. Hartzler, Barnes - Thornburg LLP, South Bend, Indiana.

ATTORNEYS FOR APPELLEE: Thomas A. Herr, William A. Ramsey, Barrett McNagny, LLP, Fort Wayne, Indiana.

May, Judge. Crone, J., and Bradford, J., concur.

OPINION

May, Judge.

[¶1] Cleveland Range, LLC (" Cleveland" ) appeals an order permitting Lincoln Fort Wayne Associates, LLC (" Lincoln" ) to depose three of Cleveland's witnesses even though Lincoln has not yet initiated litigation. As that order was not an abuse of the trial court's discretion, we affirm.[1]

Facts and Procedural History

[¶2] Lincoln or its predecessors owned real estate in Allen County that Lincoln sold in May 2013. As a condition of the sale, Lincoln was responsible for conducting an environmental investigation and undertaking remediation. Cleveland or its predecessor leased the property beginning in December 1971. A condition of its lease was that Cleveland would have responsibility for environmental damage. The real estate is currently undergoing an extensive environmental investigation that could take years to complete. In 2013, Lincoln and Cleveland entered into an interim cost-sharing agreement, pursuant to which Cleveland would reimburse Lincoln for certain environmental investigation costs. Lincoln believes it might have to institute litigation to recover some of the costs it believes Cleveland should pay.

[¶3] In November 2014, Lincoln submitted a Petition to Perpetuate Testimony. It sought permission to depose three witnesses, whose ages ranged from sixty-seven to seventy-eight, that Lincoln believed had " firsthand knowledge of the manufacturing processes at [the facility] and the extensive use of chlorinated solvents . . . [and] retain a significant amount of information directly related to the current environmental investigation." (App. at 19.)

[¶4] Lincoln acknowledged Cleveland had cooperated in the environmental investigation and had reimbursed Lincoln for some expenses, but it asserted Cleveland had not made some payments and had sought to revise the cost-sharing agreement. Lincoln therefore anticipated it might have to resort to litigation, but it did not want to file suit yet because it was concerned that initiating litigation could adversely affect the parties' working relationship and interfere with the voluntary participation of the Indiana Department of Environmental Management in the investigation and remediation.

[¶5] The trial court granted Lincoln's petition.

Discussion and Decision

[¶6] We review for an abuse of discretion a trial court's decision to grant or deny a petition to perpetuate testimony. U.S. Fid. & Guar. Ins. Co. v. Hartson-Kennedy Cabinet Top Co., 857 N.E.2d 1033, 1036 (Ind.Ct.App. 2006). When we review such a discretionary decision, we reverse only when the decision is an erroneous conclusion and judgment, one clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id. That is, we will reverse only when the record contains no facts or inferences supporting the judgment. Id. We cannot find an abuse of discretion here.

[¶7] Discovery is generally allowed only after an action has been commenced. However, Indiana Trial Rule 27 creates an exception to this rule and authorizes deposition discovery where necessary to perpetuate the testimony of a party or witness. 22 Ind. Prac., Civil Trial Practice § 22.25 (2d ed.). Deposition by oral or ...


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