response to verified motion to dismiss · pdf fileresponse to verified motion to dismiss ......

IN THE INDIANA COURT OF APPEALS

Appellate Court Cause.: 49A02-1103-PL - 00234

IN RE: INDIANA NEWSPAPER INC., )

d/b/a THE INDIANAPOLIS STAR, ) )

Appellant-Non-Party, ) )

JEFFREY M. MILLER and CYNTHIA S. ) MILLER, )

) Appellees-Plaintiffs, )

) JUNIOR ACHIEVEMENT OF ) CENTRAL INDIANA, INC.; JENNIFER ) BURK, Individually and in her Official ) Capacity; CENTRAL INDIANA ) COMMUNITY FOUNDATION, INC.; ) BRIAN PAYNE, Individually and in his ) Official Capacity, )

) Appellees-Defendants. )

Appeal from Marion Superior Court No. 14

Honorable S.K. Reid

Trial Court Cause No. 49D14-1003-PL-01476

RESPONSE TO VERIFIED MOTION TO DISMISS INDIANA NEWSPAPER, INC.'S NOTICE OF APPEAL

FOR LACK OF APPELLATE JURISDICTION

I. INTRODUCTION.

This is an appeal of a final order compelling non-party Indiana Newspapers,

Inc. to disclose the anonymous source of a comment on The Star's website. Jeffrey

Miller was not mentioned in the anonymous comment or the news article to which it

referred. The Star objected to Miller's non-party discovery based on the Indiana

Shield Law, Ind. Code §34-46-4-1 et seq.; and the protections for anonymous speech

under the Indiana and United States Constitutions. The case Miller brought to The

Star's doorstep has concluded and is complete, and appellate jurisdiction exists not

only through the Indiana Rules of Appellate Procedure but also the Indiana

Constitution's guarantee of the absolute right of appellate review.

Miller's attempt to prevent meaningful appellate review jeopardizes the free

exchange of ideas on The Star's website forum, which was instituted precisely to

foster this constitutionally protected speech. As a non-party to the underlying

dispute, The Star is unable to vindicate its rights and interests at the end of the

underlying case. Any appeal by The Star after compliance with the order is

meaningless, and its statutory and constitutional rights against compelled

disclosure of anonymous sources who exercise their right to free speech will be a

dead letter once the documents are produced. Moreover, the magnitude and finality

of these issues do not render them subject to only discretionary review, given that

(1) appellate review is guaranteed by Article 7 section 6 of the Indiana Constitution

and (2) the rule governing discretionary appeals applies only to parties and not non-

parties. The Star's appeal should proceed to the merits. 1

II. FACTUAL AND PROCEDURAL BACKGROUND.

On March 31, 2010, Jeffrey Miller sued Junior Achievement of Central

Indiana (his former employer), the Central Indiana Community Foundation, and

their respective presidents for alleged defamatory statements made in 2009. Exhibit

A. On June 24, 2010 Miller served The Star with non-party discovery seeking

documents identifying the anonymous source of a comment posted on indystar.com

1 The Millers spend a significant portion of their motion discussing the merits of the discovery issue. This is irrelevant to the question of jurisdiction, and The Star responds simply by noting its disagreement with the Millers' position. The Star looks forward to addressing the merits at the appropriate time.

2

on March 23, 2010. Exhibit B. Invoking the statutory and constitutional protections

against compelled disclosure of the anonymous source, and because Miller sought

information unrelated to his claims in the complaint, 2 The Star objected on July 23,

2010. Two months later, Miller amended his complaint to add his wife Cynthia and

their company Performance Professionals, Inc. as plaintiffs. Exhibit C. Neither the

original nor the first amended complaint contains any reference to the comment

that is the subject of this appeal.

Six months after The Star's objection, the Millers filed a motion to compel

with a proposed order on January 31, 2011. The Star responded on February 16,

2011, and obtained available hearing dates from the court for coordination with the

Millers. While The Star awaited a response as to the Millers' availability on these

dates, the trial court signed the Millers' tendered order on February 23, 2011 (the

"Order"), Exhibit D even though it failed to condition relief on advance payment of

The Star's damages, including attorney's fees. Ind. Trial Rule 34(C). No hearing was

held. The Order compelling The Star to disclose the anonymous source is

2 When The Star was served with his non-party request June 24, 2010, Miller was the sole plaintiff, and he attributed all of his damages to comments made by Jennifer Burk and Bryan Payne — and no one else. An elementary principle of Indiana law is that allegedly defamatory statements must be included in the complaint. See Trail v. Boys & Girls Clubs, 845 N.E.2d 130, 136-37 (Ind. 2006). The comment posted by the anonymous source in response to The Star story was not part of the original complaint, nor was it in the first amended complaint filed September 27, 2010. Indeed it was not part of the lawsuit until the complaint was amended a second time, after the motion to compel was decided. The plaintiffs added after The Star was served did not make additional allegations related to the defamation claim, and Performance Professionals, Inc.'s (a plaintiff in the second amended complaint) claims have been dismissed. The second amended complaint, filed nearly six months after service of this discovery, names several John Doe defendants and for the first time alleges harm from the comment at issue.

3

appealable, because it concluded The Star's involvement in the litigation and

provided final and complete relief on the non-party discovery issue. The Star timely

appealed.

III. THIS COURT HAS JURISDICTION TO ADDRESS THIS IMPORTANT ISSUE.

This appeal presents significant and important issues of constitutionally

protected anonymous speech and the scope of Indiana's Shield Law. The Millers

argue that no basis for appellate jurisdiction exists, so the appeal is subject to

dismissal. The Millers are wrong. There are several reasons that this appeal is from

a final judgment. Moreover, even if it were something other than an appealable

final order, this Court may exercise appellate jurisdiction under Ind. Appellate Rule

66(B).

The Indiana Rules of Appellate Procedure provide that a judgment is final if

it disposes of all the claims as to all the parties or is deemed final by law. App. R.

2(H)(1), (5). Moreover, the Indiana Supreme Court has noted a final judgment

disposes of all the issues and "leaves nothing for future determination." Georgos v.

Jackson, 790 N.E.2d 448, 451 (Ind. 2003). Applying this standard to non-parties

involved in a separate "case" but not the underlying dispute, this Court has held

that when, as here, the issues are resolved between two adversaries, and when one

of those is a non-party, that case is final and the order is appealable even if other

issues may be interlocutory. Bailey v. Ind. Newspapers, Inc. (In re T.B.), 895

N.E.2d 321 (Ind. Ct. App. 2008).

4

The jurisdictional appellate rules were promulgated to give effect to Article 7

section 6 of the Indiana Constitution and its "an absolute right to one appeal . . . ."

The Millers attempt to diminish this right by asserting it applies only to entire

"cases," which here would leave The Star without any meaningful remedy because it

is not a party to the underlying case. This "case" against The Star began when Mr.

Miller (then the sole plaintiff) sought non-party discovery from The Star and

concluded when the trial court signed the Millers' facially deficient proposed order.

Accordingly, that order constitutes a final adjudication of the relief sought by Miller

from The Star, which then properly exercised its constitutionally guaranteed right

to an appeal.

This Court reached the same conclusion on similar facts in at least one other

case, that one also involving The Star. In Bailey, The Star sought sealed documents

from a CHINS proceeding. 895 N.E.2d at 324. In Bailey's appeal of the orders

granting The Star's access requests, the Court held that the order related to the

documents The Star sought was a final appealable order because it "`dispose[d] of

all claims as to all parties' pursuant to Appellate Rule 2(H), in the sense that no

issues regarding the Star's request for access to records remained pending at that

point. As such, we conclude that the juvenile court's January 11, 2008 order was a

`final judgment' for purposes of Appellate Rules 2(H) and 5(A)." Id at 331.

Earlier this year, this Court again decided non-party discovery issues without

requiring App. R. 14(B) certification. In Beck's Superior Hybrids, Inc. v. Monsanto

Co., (In re Subpoena Issued to Beck's Superior Hybrids, Inc.), 940 N.E.2d 352, 354

5

(Ind. Ct. App. 2011), this Court reviewed an Order from a T.R.28(E) proceeding

related to discovery from a non-party to an arbitration apparently as a matter of

right (neither the opinion nor the Court's online docket show any App. R. 14

motions were filed).

The Star has properly appealed the Order as a matter of right. Moreover, the

Millers' proposed alternative of discretionary review is not authorized by the rule

and in any event is really no alternative at all. Accordingly, this Court has

jurisdiction.

A. This Order Is Not Appealable Under Appellate Rule 14.

The Order is appealable as a final judgment because it is not appealable

under App. R. 14. The Millers mistakenly contend that The Star has an adequate

alternative basis for an appeal through the discretionary interlocutory appeal

process. Motion at 6. This is not true, for at least two reasons. First, the Millers

missed the fact that App. R. 14(B) applies only to "a party" -- not to a non-party like

The Star. Second, even if the rule did not limit this relief to "a party," this remedy is

not adequate because it is not certain, i.e., it does not begin to provide the "absolute

right to one appeal" guaranteed by the Indiana Constitution.

The Millers' fundamental error is their reliance on pre-2001 decisions for

their assertion that the only avenue for an appeal is discretionary certification

under App. R. 14(B). These cases were appealed under the very different former

interlocutory rules, and the language of App. R. 14 does not support the Millers'

position. With the 2001 amendments, the rules regarding interlocutory appellate

procedure were completely re-written. Compare current App. R. 14(A) and (B) with

former App. R. 4 from 1999, attached as Exhibit E. As amended, the rules more

expansively address discretionary interlocutory appeals and who may bring them.

Specifically, Appellate Rule 14(A), dealing with interlocutory appeals as of right,

makes no mention of who may appeal. Thus, any person — whether a party or non-

party — who is aggrieved by the order would have the right to appeal it. This is

critical because if it were an interlocutory order and had the trial court complied

with the mandatory language of T.R. 34(C) conditioning such orders on advance

payment of the non-party's damages, including attorney's fees, the order would have

been appealable as of right under App. R. 14(A)(1) or (A)(3) by either Miller or The

Star. See Brumley v. Commonwealth Bus. College Educ. Corp., 2011 Ind. App.

LEXIS 551, 23-24 (Ind. Ct. App. Mar. 29, 2011) (collecting authority for proposition

that "Mile cannot appeal a judgment in his favor unless he is in some manner

aggrieved thereby"), citing Nehi Beverage Co., Inc. of Indianapolis v. Petri, 537

N.E.2d 78, 82 (Ind. Ct. App. 1989), trans. denied; Givan v. United States, 126 Ind.

App. 425, 427, 133 N.E.2d 577, 578 (1956). Such an order conditioning relief on

advance payment of damages or security, as required by T.R. 34(C), would have

aggrieved the Millers who would, had the rule been complied with, have been

required to pay damages, including attorney's fees, and also aggrieved The Star

based on the compelled disclosure of the anonymous source. However, compliance

with T.R. 34(C) did not occur, so Appellate Rule 14(A) is inapplicable. 3

3 The Millers advance the incredible position that they are excused from

The discretionary appeal provisions of App. R. 14(B) also do not apply, even if

this order were considered interlocutory. Unlike the pre-2001 appellate rules (the

sole authority relied on by the Millers) and the current rules governing

interlocutory appeals as of right in App. R. 14(A), App. R. 14(B) allows certification

of an order only "upon motion by a party." App. R. 14(B)(1) and (2) (emphasis

added). The Millers and The Star agree that The Star is not a party and would not

be a proper defendant in the underlying lawsuit. Motion at 4 (discussing the

immunity of The Star). Accordingly, and under the plain language of App. R. 14(B),

The Star, not being "a party" has no right to seek discretionary interlocutory

certification.

Because the rules governing interlocutory orders do not apply, appellate

jurisdiction based on the order as a final judgment is not only correct, it furthers the

policies underlying appellate jurisdiction. The "case" between The Star and the

Millers has been completed. The Star was brought in as a non-party to gather

information which considerable authority holds is protected from discovery. The

order compelling disclosure of the anonymous source was devoid of any analysis —

not surprisingly, because it was a pro forma order tendered by the Millers even

before The Star filed its opposition brief. The trial court proceeding against The

Star has concluded.

tendering a facially deficient order which the court signed without modification because The Star should have prepared an order compliant with Rule 34(C) granting the very motion it opposed. This does not pass the red-face test, and is classic invited error. See Witte v. Mundy, 820 N.E.2d 128, 133 (Ind. 2005) ("a party may not take advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or misconduct.") (citations omitted).

8

No method of appeal exists here other than as a final, appealable order and

such important circumstances cannot and are not precluded from review. The

appeal is not interlocutory as defined by App. R. 14. The unique characteristics

that Trial Rules 54(B) and 56(C) address do not apply, 4 namely the resolution of a

portion of a dispute with an entity or individual who is actually a party. Thus The

Star is simply unable to raise the issues in this appeal at the conclusion of the

litigation with the defendants because the harm will be done and the issue mooted. 5

Accordingly, the order granting the motion to compel is final as a matter of law as to

The Star.

B. The Star's "Absolute Right" To An Appeal, Guaranteed By The Indiana Constitution, Is Meaningless Unless It Has The Right to Appeal Now.

Moreover, without the ability to appeal this as a final judgment, The Star's

constitutional right to an appeal is non-existent. Jeffrey Miller brought a non-party

"case" against The Star. Now that The Star wants to exercise its rights after being

dragged into the litigation, the Millers ask this Court to leave The Star without a

remedy.

Article 7 section 6 of the Indiana Constitution provides "in all cases an

absolute right to one appeal." The Millers offer a crabbed reading of this right,

defining "case" as only the litigation between (1) a plaintiff or group of plaintiffs and

4 Both rules allow for use of magic language "rendering the order containing it appealable as of right."

5 This is also true if the underlying dispute is resolved in a way other than a judgment, such as through settlement, which would forever preclude The Star from seeking review.

9

(2) a defendant or group of defendants. The only "authority" for this restrictive

definition is the Millers' understanding of the appellate rules, which as shown

elsewhere is demonstrably faulty. For the guarantee of this constitutional right to

have any meaning, "case" must include the non-party action Jeffrey Miller brought

against The Star.

The talismans of constitutional interpretation -- the constitutional text,

history of the times, intent of the framers, and case law -- are well known. See

Ajabu v. State, 693 N.E.2d 921, 928-29 (Ind. 1998) ("In construing the Indiana

Constitution . . . [we] look to 'the language of the text in the context of the history

surrounding its drafting and ratification, the purpose and structure of our

constitution, and case law interpreting the specific provisions.") (quoting Boehm v.

Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996)); Collins v. Day, 644 N.E.2d 72,

75-76 (Ind. 1994). Here, little case law exists except to affirm the rights afforded by

Article 7 section 6. See Flores v. Flores, 658 N.E.2d 95, 1995 Ind. App. LEXIS 1562

(Ind. App. 1995).

This language of Article 7 section 6 did not exist in the 1851 constitution,

having been added in 1970. "Case" is defined in The Oxford New American

Dictionary, in relevant part, as "an instance of a particular situation," and "a legal

action." THE OXFORD NEW AMERICAN DICTIONARY, 2nd Ed, (2005). BLACK'S LAW

DICTIONARY defines "case" as:

A civil or criminal proceeding, action, suit, or controversy at law or in equity.

BLACK'S LAW DICTIONARY, 9th Ed (2009). Nothing restricts the meaning of "case" to

only an appeal by all the underlying parties. The Millers' interpretation, which

vests no rights in any party or non-party but instead vests those rights only in the

proceeding itself, is contrary to the fundamental underpinnings of our state

constitution which is to preserve rights, not eliminate them.

Moreover, the judicial proceeding between The Star and the Millers is unique

and complete, at the trial court level. It raises a particular set of constitutional and

statutory concerns that are irrelevant to, and will not be advocated in, the

underlying dispute. The only means to ensure the proper and appropriate scope of

free speech remain intact is through the exercise of The Star's right to have an

appellate court review and apply the law. The broad and absolute language in

Article 7 section 6 was certainly designed to broaden the rights of access to

appellate courts, not narrow them as the Millers would have this Court do.

C. The Millers' Parade of Horribles Is Exaggerated.

The Millers take the view that their abuse of the non-party discovery process

should be insulated from appellate review because this Court's docket could be

"flooded" by appeals from non-party discovery orders. In support, the Millers point

to the nearly two million new cases filed in Indiana in 2009, and assert the illogical

tautology that because non-party discovery is "extremely common" this Court will

be flooded by non-party appeals. The Millers' argument is as sound as the

proverbial house of cards. Of these two million new cases, fewer than 20% are civil

cases. Motion at 8, Ex. A. Even among that sharply reduced number, the Millers

favored the Court with no basis to say how many — if any — will generate contested

orders on non-party discovery. Moreover, the Millers wholly fail to discuss the

practical effect abusive and improper non-party discovery causes.

Significantly, the Millers ignore that three years ago in Bailey this Court

applied the final judgment definition to non-parties in precisely the same way it

should be applied here. The sky has not fallen, and this Court has not been

inundated by appeals of non-party discovery orders. Indeed, The Star (a non-party

in Bailey) found no published decision in which any non-party has availed itself of

the appellate remedy in Bailey. The reasons for this are quite simple: non-parties do

not seek litigation. However, when constitutionally protected information is

compelled, a non-party such as The Star must, as both a practical and legal

consideration, have access to appellate review to assure those interests are

protected.

Aside from the significant legal issues in this case, the Indiana Trial Rules

and case law consistently serve the underlying policy of protecting non-parties from

the burden of discovery and ensuing litigation over it. For example, the purpose of

the fifteen day notice period in Trial Rule 34(C) is to allow a party to object to non-

party discovery before it is served. See Andreatta v. Hunley, 714 N.E.2d 1154, 1158

(Ind. Ct. App. 1999). This saves the non-party the time and expense of being drawn

into litigation until the parties — and sometimes the courts — determine whether

such non-party discovery is appropriate. The rule is further solicitous of the

interests of non-parties by requiring any order compelling production of documents

from a non-party to be conditioned "upon the prepayment of damages" or the

posting of "an adequate surety bond or other indemnity" including reasonable

attorney fees. T.R. 34(C). No comparable condition exists for orders compelling

parties to respond to discovery. See Rule 37(A)(4). This Court has also placed

special emphasis on protecting non-parties from the burden and expense of

discovery, particularly when it may exceed the scope of the underlying lawsuit.

Strodtman v. Integrity Builders, Inc., 668 N.E.2d 279, 285 (Ind. Ct. App. 1996); see

also Robertson v. Board of Zoning Appeals, 699 N.E.2d 310, 317 (Ind. Ct. App. 1998)

(affirming order quashing discovery irrelevant to standing to seek certiorari).

Moreover, Trial Rule 26(C) gives the court discretion to limit discovery that is

burdensome and oppressive both to parties and non-parties. See Riggin v. Rea

Riggin & Sons, Inc., 738 N.E.2d 292, 309-10 (Ind. Ct. App. 2000) (affirming

conditions placed on deposition). Rule 26(C) authorizes the Court to make any order

which justice requires to protect another from annoyance, embarrassment,

oppression or undue burden or expense. T.R. 26(C).

It is not surprising that the App. Rules contemplate, whether by compliance

with T.R. 34(C) or because it is a final judgment, that this Court has jurisdiction

over non-party orders compelling discovery. Indiana's policy is crystal clear: non-

party discovery should not be abused and should be utilized only when directed to

the claims in the lawsuit — not to find new claims against new defendants, as Miller

did here. The United States Supreme Court, in interpreting the former federal

discovery rule which is identical to Indiana's current Trial Rule 26(B) held:

In deciding whether a request comes within the discovery rules, a court is not required to blind itself to the purpose for which a party seeks information. Thus, when the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied.

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978).

Indiana courts frequently rely upon federal case law interpreting parallel

rules. See, e.g., Stuff v. Simmons, 838 N.E.2d 1096, 1110 (Ind. Ct. App. 2005);

Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 292, 309 (Ind. Ct. App. 2000)

("Because our Rule 26 was adopted from the Federal Rules of Civil Procedure,

federal authorities are relevant to our discussion."). Here the United States

Supreme Court has unequivocally stated that the discovery rules do not permit

fishing expeditions that seek discovery for future lawsuits -- exactly the discovery

Miller seeks. While The Star, as a non-party, has no stake in the outcome of the

underlying litigation, overly broad requests or, as here, requests which contravene

the Shield Law and offend free speech principles protected by the First Amendment

and the Indiana Constitution can cause harm in the form the disclosure of

protected information and the burden of attorney fees. Indeed, this burden is

contemplated by Trial Rule 34(C)(3), which requires an order compelling production

of documents from a non-party to be conditioned "upon the prepayment of damages"

or the posting of "an adequate surety bond or other indemnity" including reasonable

attorney fees. 6

6 As noted above, the trial court did not comply with this requirement. Had advance payment of damages which "shall include reasonable attorney's fees" been ordered as required by the mandatory language of the rule, this matter may have been appealable as ofright under App. R. 14(A)(1) or (A)(3).

- 14 -

In sum, while The Star is keenly aware of the caseload burden on Indiana's

appellate judges and staff and does not wish to needlessly add to it, there is no

legitimate danger of that occurring. That it hasn't happened in the three years after

Bailey is proof that the Millers' parade of horribles is a self-serving fiction. Already,

this Court treats non-party orders as appealable as matter of right. Moreover, if the

trial court had conditioned relief as Rule 34(C) requires, and if that order were

considered interlocutory and not final, it also could have been appealed as a matter

of right. As a practical matter, history demonstrates non-parties challenge non-

party orders only when, as here, significant issues are at stake justifying the

expenditure of the resources such an appeal requires.

D. Even If This Court Determined This Is Not A Final, Appealable Order It May Retain Jurisdiction.

Even if The Star could not bring this appeal as of right, additional grounds

exist for this Court to retain jurisdiction. Specifically, this Court has discretion to

retain jurisdiction under App. R. 66(B). 7 Here an interlocutory appeal of right would

have existed had the trial court followed the advance payment of damages mandate

of Trial Rule 34(C). Instead, the trial court signed the Millers' proposed order which

wholly ignored this requirement. If App. R. 14(B) means what it says, unless this is

a final judgment The Star lacks the absolute right to an appeal guaranteed by the

Indiana Constitution because it is not a "party" with a right to appeal under App.

R. 14(B), and it cannot appeal the order as of right, on an interlocutory basis under

7 While the language of the Appellate Rules and this Court's precedent render the order to compel final, because of the significant issues raised The Star offers this additional jurisdictional basis.

- 15 -

submitted,

App. R. 14(A). Accordingly, the prohibition against using App. R. 66(B) as a proxy

for App. R. 14 does not apply. Daimler Chrysler Corp. v. Yaeger, 838 N.E.2d 449,

450 (Ind. 2005).

IV. CONCLUSION.

To give effect to the Indiana Constitution's guarantee of an absolute right to

an appeal, the Court should deny the motion to dismiss and proceed with

jurisdiction based on the order's effect as a final judgment.

Dated: April 25, 2011 Jan . Carroll, No. 4187-49 Paul L. Jefferson, No. 23939-49 BARNES & THORNBURG LLP 11 South Meridian Street Indianapolis, Indiana 46204 Telephone: (317) 236-1313 Facsimile: (317) 231-7433

Attorneys for Appellant-Non-Party Indiana Newspapers, Inc.

VERIFICATION

Pursuant to Ind. Appellate Rule 34(F), I declare under the penalties for

perjury that the facts in the foregoing Response to Verified Motion to Dismiss

Notice of Appeal For Lack of Appellate Jurisdiction are true and correct.

WORD COUNT CERTIFICATE

Pursuant to Ind. Appellate Rule 44(E), I verify that the foregoing Response to

Verified Motion to Dismiss Notice of Appeal For Lack of Appellate Jurisdiction

contains no more than 4200 words, as determined by the word processing system

used to prepare the Response (Microsoft Word

'fferson

CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that a copy of the foregoing

response has been served this 25th day of April, 2011, by the method noted:

Hand delivery:

Kevin W. Betz Jamie A. Maddox BETZ & ASSOCIATES, P.C. One Indiana Square, Suite 1660 Indianapolis, Indiana 46204

Depositing a copy of the same in the United States Mail, first-class postage

prepaid, and properly addressed to the following counsel of record:

James S. Stephenson Ian L. Stewart STEPHENSON, MORROW & SEMLER 8710 N. Meridian Street, Suite 200 Indianapolis, Indiana 46260

Philip A. Whistler Erik C. Johnson Dominique A. Price ICE MILLER LLP One American Square, Suite 2900 Indianapolis, Indiana 46282-0200

Trea W. Southerland FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road Building B, 3rd Floor Memphis, Tennessee 38125 - 8800

Edward J. Bielski Christine M. Reisner STEWART & IRWIN, P.C. 251 East Ohio Street, Suite 1100 Indianapolis, Indiana 46204-2147

Heather L. Wilson Darren A. Craig FROST BROWN TODD, LLC 201 North Illinois Street, Suite 1900 Indianapolis, Indiana 46204

Hannah L. Meils Tracy N. Betz TAFT STETTINIUS & HOLLISTER LLP One Indiana Square, Suite 3500 Indianapolis, Indiana 46204

500 FESTIVAL, INC. c/o Kirk Hendrix, CEO and President 500 Festival Building 21 Virginia Avenue, Suite 500 Indianapolis, Indiana 46204

Arend J. Abel COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, Indiana 46204

aul . Jefferson

Ty M. Craver Elizabeth A. Trachtman HILL, FULWIDER, MCDOWELL, FUNK &

MATTHEWS One Indiana Square, Suite 2400 Indianapolis, Indiana 46204

INDSO2 1162177v4

$ i [

EXHIBIT

A

FILED MAR 3 1 2010

WatC1 OF snE MARION CIRCUIT COURT

STATE OF INDIANA ) ) SS:

COUNTY OF MARION )

JEFFREY M. MILLER,

Plaintiff,

vs.

JUNIOR ACHIEVEMENT OF CENTRAL INDIANA, INC.; JENNIFER BURK, Individually and in her Official Capacity; CENTRAL INDIANA COMMUNITY FOUNDATION, INC.; BRIAN PAYNE, Individually and in his Official Capacity,

Defendants.

IN THE MARION UPERIOR COURT

CAUSE NO: .

49014 10 03 PL 011 7 6 1

COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL

Jeffrey. M. Miller files this Complaint for Damages and Demand for Jury Trial (the

"Complaint") as follows:

I. INTRODUCTION

1. This is an action brought by JEFFREY M. MILLER ("Mr. Miller") against JUNIOR

ACHIEVEMENT OF CENTRAL INDIANA, INC. ("JACI"); JENNIFER BURK ("Ms. Burk"),

Individually and in her Official Capacity; CENTRAL INDIANA COMMUNITY FOUNDATION,

INC. ("CICF"); and BRIAN PAYNE, Individually and in his Official Capacity.

2. This is an action against Defendants for defamatfon, as well as tortious interference

with a business and/or contractual relationship and intentional infliction of emotional distress. Mr.

Miller seeks damages based on these claims because the Defendants wrongfully, in bad faith and

with malice made unfounded statements that Mr. Miller misapriropriated funds. These unfounded

and untrue statements cost Mr. Miller a job opportunity as will as caused great damage to his

reputation.

II. JURISDICTION

3. This Court has subject matter jurisdiction to &icicle these state law claims. This

Court also has personal jurisdiction over the parties who are Mathon County, Indiana residents.

M. VENUE

4. Mr. Miller is currently a resident of Indianapolis,; Marion County, Indiana.

5. JACI is currently located in Indianapolis, Marioti County, Indiana with its principal

office at 7435 North Keystone Avenue, Indianapolis, Indiana 46204.

6. Ms. Burk is currently a resident of Indianapolis, anion County, Indiana.

7. CICF is currently located in Indianapolis, Mario County, Indiana with its principal

office at 615 North Alabama Street, Suite 119, Indianapolis, Indiana 46204.

8. Mr. Payne is currently a resident of Indianapolis, Marion County, Indiana.

9. This cause of action arose in Indianapolis, Indiana, which is located in Marion

County. Thus, the instant cause of action is properly venued in Marion Superior Court.

IV. PLAINTIFF

10. At all times relevant to this action, Mr. Miller resided in Indianapolis, Marion

County, Indiana.

V. DEFENDANTS

11. At all times relevant to this action, JACI vvaS located in Indianapolis, Marion

County, Indiana.

12. At all times relevant to this action, Ms. Burk wa the President and Chief Executive

Officer of JACI and employed by JACI.

13. At all times relevant to this action, CICF w located in Indianapolis, Marion

County, Indiana.

2

14. At all times relevant to this action, Mr. Payno was the President of CICF and

employed by CICF.

VI. STATEMENT OF FAC*S

15. Mr. Miller was hired as the President and CEO of JACI in September of 1994.

16. Mr. Miller held this position with JACI for near y fifteen (15) years before retiring

in December of 2008.

17. Prior to his role at JACI, Mr. Miller served for two (2) years as President and CEO

of Junior Achievement of the Michigan Edge, Inc., located in Jackson, Michigan and also served

for two (2) years as President and CEO of Junior Achievemerit of South Florida, located in Fort

Lauderdale, Florida.

18. Mr. Miller publicly announced his retirement as the President and CEO of JACI on

July 7, 2008.

19. Mr. Miller retired from JACI on December 31, 2008.

20. Mr. Miller, however, continued in his role as the President of the Experiential

Learning and Entrepreneurship Foundation ("ELEF") until February of 2010, a position he had

held since 1994. ELEF is a separate organization that supports 44CI.

21. Ms. Burk was a member of the JACI Board for ien (10) years, from approximately

1999-2009. She also served as interim President and CEO of JACI from January 1, 2009 to June

30, 2009. On July 1, 2009, Ms. Burk became the President and CEO of JACI.

22. Ms. Burk also became a member of the ELEF Bo d on January 1, 2009.

23. In May of 2008, after two (2) years of cultiv ion and negotiation, a three-way

collaborative project was announced between JACI, Ivy Tech Community College ("Ivy Tech")

and ELEF. Mr. Miller had developed this project and secured d nations which constituted several

years of work with Ivy Tech and the Eugene Glick family.

24. The terms of the collaboration provided for ELEF to construct the Culinary and

Hospitality School ("Culinary School") on the JACI campus and for Ivy Tech to lease the Culinary

School from ELEF once the Culinary School was fully constructed and furnished with the latest

culinary equipment.

25. The Culinary School project was to be primarily funded by the CICF/Glick Fund

(which is managed by the CICF), as well as the Helping Fund aid other various contributions.

26. Contributions for the Culinary School were made directly to JACI. With the

knowledge and authorization of JACI's Board, these contributions were transferred to ELEF for

disbursement on Culinary School construction expenses.

27. The CICF/Glick Fund Grant ("CICF/Glick Gra4t") was a joint grant to JACI and

Ivy Tech with $2.0 million dollars going to JACI and $1.0 million dollars going to Ivy Tech.

28. JACI assigned the CICF/Glick Grant to ELEF so ELEF could receive and disburse

the funds for the Culinary School.

29. The CICF/Glick Grant was to be disbursed mice the CICF/Glick Fund received

invoices for qualified construction/project expenses of the Culinary School.

30. Payments for construction/project expenses of the Culinary School from the

CICF/Glick Grant were to be processed on a monthly basis by ELEF until the CICF/Glick Grant of

$2.0 million was expended toward the $4.0 million construction 'project.

31. The Helping Fund Grant was a $2.0 million dollar pledge made in 1997 to the JA

endowment fund (which was held by ELEF). Because of spendiig by JACI from the Helping Fund

Grant, the balance of this pledge from the Helping Fund Granil in 2008 was $1.3 million dollars.

The Culinary School was to be funded in part by this $1.3 million remaining in the Helping Fund

Grant.

32. With funding in place and the building team selected, construction of the Culinary

School began in August of 2009.

33. Construction of the Culinary School stopped indefinitely in approximately January

of 2010 because the CICF/Glick Fund stopped providing the fulading for the invoices submitted by

ELEF, even though the $2 million grant amount had not been expended.

34. Even though Mr. Miller had provided valid and accurate construction invoices for

all monies disbursed by the CICF/Glick Fund for the Culinary School construction project, Ms.

Burk and Mr. Payne claimed that Mr. Miller somehow misapprOpriated the funds.

35. Ms. Burk also made the same claim to the Helping Fund, and the Helping Fund

stopped its contributions to the Culinary School project. 1

36. Ms. Burk believed that the funds pledged to the !Culinary School should instead be

paid to JACI's general operating fund.

37. Without any basis in fact, Ms. Burk and Mr. Payne have made defamatory

statements about Mr. Miller and his fifieen-year tenure at JACI Ind at ELEF.

38. During a JACI Executive Committee meeting on ;October 22, 2009, Ms. Burk stated

that Mr. Miller had been "very dishonest" about funds she believed should be available to JACI.

This was false.

39. In the fall of 2009, Ms. Burk also told Sharon Lents, the former JA Chief Operating

Officer ("COO"), that "Jeff Miller's House of Cards is about to fall down." Again, this statement

was false.

40. A member of the JACI Executive Committee al4o stated in December of 2009 that

JACI's difficult economic situation was not Ms. Burk's fault, but that Ms. Burk inherited it from 1

Mr. Miller. This is also false.

41. In March of 2010, Ms. Burk stated that she was distancing JACI from Mr. Miller

and ELEF, implying that Mr. Miller had misappropriated fundS. There is no reasonable basis for

5

Ms. Burk to make such defamatory and false statements.

42. In early 2010, Mr. Miller was in discussions with individuals in the Mayor of

Indianapolis Greg Ballard's office, including Michael Huber (Director of Enterprise Development

— now Deputy Mayor) and Chris Cotterill (Chief of Staff), regarding the position of Senior Policy

Advisor.

43. Mr. Miller's job description, title and salary for the Mayor's Office had been agreed

upon between Mr. Miller and Mr. Cotterill.

44. An announcement regarding Mr. Miller's position with the Mayor's Office was

scheduled for the end of February of 2010.

45. Mr. Miller, however, did not receive this position with the Mayor's Office because

of Ms. Burk's and Mr. Payne's defamatory statements and interference.

46. Mr. Cotterill withdrew the offer of employment to Mr. Miller based on statements

made by Mr. Payne to Mr. Cotterill regarding alleged misappropriation of funds by Mr. Miller. Mr.

Payne made such statements based on representations from Ms. Burk.

47. Mr. Payne informed Mr. Cotterill that concerns 110 arisen regarding Mr. Miller and

the way the CICF/Glick Grant funds were inappropriately moved around at JACI and/or ELEF.

48. The defamatory statements made by Ms. Burk and Mr. Payne have materially

damaged Mr. Miller and Mr. Miller's consulting business, Performance Professionals, a business

which Mr. Miller and his wife formed upon retirement from JACI.

VII. STATEMENT OF CLAIMS

COUNT I (Defamation Per Se)

49. Mr. Miller incorporates the allegations of paragiaphs 1 through 45 above, and, in

addition, states that Defendants' conduct in this matter constitutes defamation per se.

6

50. The actions of Defendants as described herein are without privilege, legal

justification or excuse.

51. Defendants communicated unfounded statements regarding misappropriation of

funds by Mr. Miller to the Mayor's.Office, as well as other unfounded statements regarding Mr.

Miller's tenure at JACI.

52. Defendants' communications regarding Mr. 'Miller were spoken or written

maliciously by Defendants for the reason that they were made with the knowledge that they were

false or with reckless disregard for whether they were true or false so as to indicate a conscious

indifference to the rights of Mr. Miller.

53. The acts and statements made, and the acts reported by Defendants, were made

with malice.

54. Defendants' communication and conduct regarding Mr. Miller caused injury to his

professional and personal reputation.

55. Defendants' communication and conduct regarding Mr. Miller constitutes

defamation per se.

COUNT II (Defamation Per Quod)

56. Mr. Miller incorporates the allegations of paragraphs 1 through 52 above, and, in

addition, states that Defendants' conduct in this matter constitutes defamation per quod.

57. Defendants communicated unfounded and false statements regarding

misappropriation of funds by Mr. Miller to the Mayor's Office, as well as other unfounded

statements regarding Mr. Miller's tenure at JACI.

58. Defendants' communications regarding Mr. Miller were spoken or written





with malice.


professional and personal reputation.

61. In the event that the Defendants' communications and conduct toward Mr. Miller

are not found to be defamation per se, then Defendants' communication and conduct toward Mr.

Miller constitutes defamation per quod.

COUNT III (Tortious Interference with Business and/or Contractual Relationships)

62. Mr. Miller incorporates the allegations of paragraphs 1 through 58 above and, in

addition, states .that the conduct of the Defendants in this matter intentionally interfered with Mr.

Miller's business and/or contractual relationship with the Mayors Office.

63. The Defendants were aware of Mr. Miller's business relationship and potential

contractual job opportunity with the Mayor's Office.

64. The Defendants' defamatory statements to individuals in the Mayor's Office

regarding Mr. Miller's alleged misappropriation of funds constitutes intentional interference with

the business and/or contractual relationship between Mr. Miller and the Mayor's Office.

65. There was no justification for the Defendants' illegal interference.

66. As a result of the Defendants' interference with Mr. Miller's business and/or

contractual relationship with the Mayor's Office, Mr. Miller has suffered damages.

8

COUNT IV (Intentional Infliction of Emotional Distress)

67. Mr. Miller incorporates the allegations of paragraphs 1 through 63 above, and, in

addition, states that Defendants' conduct in this matter constitutes intentional infliction of

emotional distress.

68. Defendants' actions in this matter constitute extreme and outrageous conduct.

69. Defendants' intentional conduct caused severe emotional distress to Mr. Miller.

70. Defendants are subject to liability for Mr. Miller's emotional distress.

VIII. PRAYER FOR RELIEF

WHEREFORE, Plaintiff Jeffrey M. Miller prays for judgment in his favor and against

Defendants and that the following be awarded:

a. Order Defendants to make' whole Mr. Miller by providing compensation for past

and future pecuniary losses resulting from the unlawful practices described above,

in amounts to be determined at trial.

b. Order Defendants to make whole Mr. Miller by providing compensation for past

and future nonpecuniary losses resulting from the unlawful practices described

above, including emotional pain, suffering, inconvenience, loss of enjoyment of life,

and humiliation, in amounts to be determined at trial.

c. Order Defendants to pay Mr. Miller punitive damages for their malicious and

reckless conduct described above, in amounts to be determined at trial.

d. Order Defendants to pay Mr. Miller damages for any and all injuries to his career,

profession and personal reputation.

9

•

e. Award Mr. Miller the cost of this action including reasonable attorney fees and any

such other relief as the Court may deem just, proper and equitable.

IX. RESERVATION OF RIGHTS

Pursuant to the rules of pleading and practice, Mr.

additional violations of federal and state law.

X. JURY TRIAL

Mr. Miller demands trial by jury on all issues so triable.

Miller reserves the right to assert

Respec y submitted,

Kevin W. Betz, Atty. • . 14 88-82 Jamie A. Maddox, Atty. 522-49 Attorneys for Plaintiff Jeffrey M. Miller

BETZ & ASSOCIATES One Indiana Square Suite 1660 Indianapolis, Indiana 46204 Office: (317) 687-2222 Fax: (317) 687-2221

10

EXHIBIT

B

viii W. Betz, Atty. No. 14188-82 amie . Maddox, Atty. No. 26522-49 tto eys for Plaintiff Jeffrey M. Miller

STATE OF INDIANA )

IN THE MARION SUPERIOR COURT ) SS:

COUNTY OF MARION )

CAUSE NO: 49D14-1003-PL-014761

JEFFREY M. MILLER,

Plaintiff,

VS.


Defendants.

SUBPOENA DUCES TECUM

TO: The Indianapolis Star c/o Barbara W. Wall, Esquire GANNETT Co., INC. 7950 Jones Branch McLean, Virginia 22107

You are hereby commanded to produce the documents identified in "Request for

Production of Documents and Records to a Nonparty," attached as Exhibit 1, for inspection and

copying at the law offices of Kevin W. Betz, Betz & Associates, One Indiana Square, Suite

1660, Indianapolis, Indiana, 46204 within thirty (30) days from the date of service hereof. This

Subpoena is issued pursuant to the provisions of Trial Rule 45(B) of the Indiana Rules of Trial

Procedure, a copy of which is attached as Exhibit 2.

Respectfully submitted,

James S. Stephenson, Esquire STEPHENSON, MORROW & SEMLER 8710 N. Meridian Street, Suite 200 Indianapolis, Indiana 46260



The undersigned hereby certifies that a copy of the foregoing was served upon the

following by First Class United States Mail, this 24 th day of June, 2010:

Heather L. Wilson, Esquire Darren A. Craig, Esquire FROST BROWN TODD, LLC 201 North Illinois Street, Suite 1900 Indianapolis, Indiana 46204

Philip A. Whistler, Esquire Erik C. Johnson, Esquire Dominique A. Price, Esquire ICE MILLER, LLP One American Square, Suite 2900 Indianapolis, IN 46282-0200

2


COUNTY OF MARION )

IN THE MARION SUPERIOR COURT

CAUSE NO: 49D14-1003-PL-014761

JEFFREY M. MILLER,

EXHIBIT

Plaintiff,

VS.


Defendants.

REQUEST FOR PRODUCTION OF DOCUMENTS AND RECORDS TO A NON-PARTY

TO: The Indianapolis Star do Barbara W. Wall, Esquire GANNE-rr Co., INc. 7950 Jones Branch McLean, Virginia 22107

Plaintiff, Jeffrey M. Miller, by counsel, and pursuant to Trial Rule 34(C) of the Indiana

Rules of Trial Procedure, requests that The Indianapolis Star (the "Star"), a non-party to this cause

of action, produce for inspection and copying by the attorney for Jeffrey M. Miller, Kevin W. Betz,

BETZ & ASSOCIATES, One Indiana Square, Suite 1660, Indianapolis, Indiana 46204, within

thirty (30) days of service after receiving this request the following documents.

I. Definitions And Instructions Applicable To Requests For Production

A. "Documents" means documents as that term is used in Rule 34 of the Indiana Rules

of Trial Procedure, including without limitation any written, printed, recorded or photographic

matter or sound reproduction, and specifically including but not limited to contracts, agreements,

1

letters, correspondence, electronic mail memoranda, telegrams, handwritten notes, books, records,

orders, security agreements, financing statements, mortgages, checks, drafts, sales records, invoices,

bills, working papers, diaries, charts, papers, notes, indices, lists, inventories, computer printouts,

accounting records, ledger sheets, statements, analyses, forecasts, instructions, manuals, pamphlets,

brochures, flyers, announcements, schedules, written memorials of personal or telephone

conversations or meetings or conferences and all other interoffice and interoffice communications,

_ teletypes, correspondence, worksheets, minutes, data processing cards, photographs, films, or any

other writing however produced or reproduced or any tape, computer diskettes, or electronic sound

recording. the _event that the original or non-identical copy of a document is not available,

"documents" means an identical copy of an original or a copy of a non-identical copy. Any

document bearing notations, markings or writings of any kind differing from the original shall not

be treated as an original document.

B. "Relate to" or "relating to" means all information which directly or indirectly

involves or concerns, treats, discusses, alludes, or pertains to the general subject matter identified in

the request.

C. "Communication" 'means any communication however made, including but not

limited to, correspondence, contact, discussion, or any other kind of oral, written or electronic

exchange between two or more persons including, but not limited to, all telephone conversation,

face-to-face conversations, meetings, electronic mail, telecopy, on-line services, visits, conferences,

internal and external discussions, and documents however the same was transcribed, sent or given.

D. . "Person" means any individual, corporation, partnership, joint venture, firm,

association, proprietorship, agency, board, authority, commission, or any other entity.

E. When the context herein makes it appropriate, each singular word shall include its

plural, and each plural word shall include its singular.

F. All documents covered in this request shall be produced in a manner, with

appropriate markings or other forms of identification, to allow the Plaintiff to identify the source of

2

•

the document produced, the file in which it is maintained, and the individual or entity keeping

custody of such file.

- a- - If you - claim that any document covered by this request is subject to a privilege or

should not be produced for any other reason, your response to this request shall state the following

for each such document:

(1) Its date, subject matter, number of pages and attached material or appendices;

,. The author(s), preparer(s), addressor and addressee, identified by title and

employer;

(iii) A description (e.g., letter, memorandum, etc.);

(iv) Its recipient and/or addressee;

(v) All individuals who at any time received or reviewed a copy of the document

or any portion thereof;

(vi) --The nature of the privilege asserted and the paragraph of this request to which

the document relates. In the case of any document relating in any way to a meeting or any

other conversation, all those persons present (whether or not they were participants) in the

meeting or conversation are to be identified by title and employer;

(vii) If any information or data is withheld because such information or data is

stored only electronically or on magnetic tape, it is to be identified by the subject matter of

the information or data, the storage mode, and the place or places where such information is

maintained; and

(viii) You are requested to respond to this Request consistent with the requirements

imposed by the Indiana Rules of Trial Procedure.

H. "You" or "your" refers to The Indianapolis Star, and the attorneys, agents or

representatives of The Indianapolis Star.

3

Betz, Atty. No. 14188-82 Maddox, Atty. No. 26522-4 s for Plaintiff Jeffrey M. Miller

II. Document Requests

REQUEST NO. 1: Any and all records, documents, including electronic information or

documents and/or digital information of all kinds, log files, reports, notes or any other

documentation, relating to' the posting and/or identity of "DownWithTheColts," the individual who

posted a comment on the article titled "Junior Achievement faces questions, audit" (dated March

19, 2010) posted on IndyStar.com. A copy of this article with comments is attached hereto as

"Exhibit A."

RESPONSE:

The response to this Request for Production of Documents and Records may be made by

submitting to its-terms or by proposing different terms, or by objecting specifically or generally to

this Request for Production of Documents and Records by serving a written response to the Plaintiff

in care of the undersigned attorney within thirty (30) days after receipt of this Request as permitted

by Trial Rule 45(B) of the Indiana Rules of Trial Procedure. Your failure to respond to this Request

or to object to it or to move to quash it as provided by the applicable Indiana Rules of Trial

Procedure within thirty (30) days from its receipt will subject you to a Motion for Sanctions

pursuant to Trial Rule 37 of the Indiana Rules of Trial Procedure.



4


CERI ICATE OF SERVICE


following by First Class United States Mail, this 24 th day of June, 2010:


Philip A. Whistler, Esquire Erik C. Johnson, Esquire Dominique A. Price, Esquire IcE MruER, LLP One American Square, Suite 2900 Indianapolis, IN 46282-0200

5

Junior Achievement faces questions, audit

By Robert King

Posted: March 19, 2010

Junior Achievementof Central Indiana', an organization that tries to teach students how to manage money effectively, is facing a series of questions about its own financial affairs --questions about missed payments to contractors on a building project and unaccounted-for grant money.

As alesult, the Central Indiana Community Foundation has halted payment on the remainder of a $2 million grant it had awarded to Junior Achievement for an expansion project at JA's headquarters at 7345 N. Keystonel Ave. Those payments won't resume, foundation President Brian Payne said Thursday, until an independent auditor can sort out what's become of the $765,000 in grant payments that Junior Achievement has already received.

Four contractors contacted the

haven't been paid by Junior Achievement — some for months -- for their work to expand the building and make it ready to house an expansion of Ivy Tech Community College's culinary arts program this fall.

Ivy Tech was to receive $1 million from the Central Indiana Community Foundation to furnish the building, but that expansion is being delayed until Junior Achievement's accounting problems are worked out and construction can resume.

Jennifer Burk said that when she took over as Junior Achievement's CEO and president in July, it was her understanding that the expansion project was being managed and overseen by the Experiential Learning & Entrepreneurship Foundation, which owns the building. Burk said it wasn't until November that the Central Indiana Community Foundation informed her that the expansion was Junior Achievement's responsibility. Ivy Tech spokesman Jeff Fanter said the college understood its lease to be with Experiential Learning.

Work on the expansion is visible. But

http://www.indystar.com/fdcp/?1270561171974

http://www.indystar.com/apps/pbcs.d11/article?AlD---20103190345

Page 1 of 2

INDYSTAR*COM

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INDYSTAR*COM Burk could not say Thursday how close it was to completion, exactly how the $765,000 previously awarded had been spent and how many contractors hadn't been paid.

Burk said the Experiential Learning foundation, led by Gary Aletto, was set up primarily to raise money for Junior, Achievement. Three JA board members, including Burk, automatically have seats on the foundation's board.

Aletto could not be reached Thursday for comment.

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DownWithTheCotts wrote:

This is not A's responsibility. T <a href="lappsipbos.dlYsection' A.

indyfan001 wrote:

Did you take this story straights A <a href="tapps/pbos.dllisection' A.

Comments for

Junior Achievement faces questions, audit

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This is not JA's responsib lity. They need to look at the FORMER president of JA and others on the ELEF board. The "missing" money can be found in their bank accounts. 3/23/201011:48:06 AM

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Did you take this story straight from the Indianapolis Business Journal? 3/19/2010 527:07 AM

EXHIBIT

Rule 45. Subpoena (A) For Attendance of Witnesses - Form - Issuance.

(1) Every subpoena shall: (a) state the name of the court; (b) state the title of the action (without naming more than the first named plaintiffs and defendants in the complaint and the case number); and (c) command each person to whom it is directed to attend and give testimony at a time and place therein specified.

(2) The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it or his or her attorney, who shall fill it in before service. An attorney admitted to practice law in this state, as an officer of the court, may also issue and sign such subpoena on behalf of

(a) a court in which the attorney has appeared for a party; or (b) a court in which a deposition or production is compelled by the subpoena, if the deposition or

production pertains to an action pending in a court where the attorney has appeared for a party in that case. (13) For production of documentary evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion. made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may

(1) quash or modify the subpoena if it is unreasonable and oppressive or _ _ (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. (C) Service. A subpoena may be served by the sheriff or his deputy, a party or any person. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person. Service may be made in the same manner as provided in. Rule 4.1, Rule 4.16 and Rule 5(B). (D) Subpoena for taking depositions - Place of examination.

(1) Proof of service of a notice to take a deposition as provided in Rules 30(3) and 31(A) constitutes a sufficient authorization for the issuance by the clerk of court for the county in which the deposition is to be taken of subpoenas for the persons named ordescribed therein. The subpoena may command the person to whom it is directed to produce designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(B), but in that event the subpoena will be subject to the provisions of Rule 26(C) and subdivision (B) of this rule.

(2) An individual may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the state may be required to attend only in the state and county wherein he is served with a subpoena, or within forty [40] miles from the place of service, or at such other convenient place as is fixed by an order of court. A non-resident plaintiff

-

may be required to attend at his own expense an examination in the county of this state where the action is commenced or in a county fixed by the court. (B) Subpoena for a hearing or triaL At the request of any party subpoenas for attendance at a hearing or trial shall be issued by the clerk of court of the county in which the action is pending when requested, or, in the case of a subpoena for the taking of a deposition, by the clerk of court of the county in which the action is so pending or in the county in which the deposition is being taken. An attorney admitted to practice law in this state, as an officer of the court, may also issue and sign such subpoenas on behalf of the court in which the action is pending or a court of the county in which the deposition is being taken, if the hearing, deposition or production pertains to an action pending in a court where the attorney has appeared for a party in that case. A subpoena may be served at any place within the state; and when permitted by the laws of the United States, this or another state or foreign country, the court upon proper application and cause shown may authorize the service of a subpoena outside the state in accordance with and as permitted by such law. (F) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued, or court of the county where the witness was required thereunder to appear or act. The attendance of all witnesses when duly subpoenaed, and to whom fees have been paid or tendered as required by law may be enforced by attachment. (G) Tender of fees. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person who shall be required to attend outside his county of residence as provided in section (C), and by so tendering to him the fees for one [1] day's attendance and the.mileage allowed by law. Such tender shall not be required to be made to a party who is subpoenaed or to an officer, employee, agent or representative of a party which is an organization, including the estate or any governmental organization, who is being examined upon any matter connected in any way with his employment or with duties to the organization. (H) Proof of service of subpoena - Fees. When a subpoena is served by the sheriff or his deputy, his return shall be proof of service. When served by any other person the service must be shown by affidavit. No fees or costs for the service of a subpoena shalt be collected or charged as costs except when service is made by the sheriff or his deputy.

I EXHIBIT

C


COUNTY OF MARION )

IN THE MARION SUPERIOR COURT

CAUSE NO: 49D14-1003-PL-014761

•••:1 VS.

, '

etzeuiTcjux:


Defendants.

JEFFREY M. MILLER; CYNTHIA S. MILLER; PERFORMANCE PROFESSIONALS, INC.,

Plaintiffs,

AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL

Jeffrey M. Miller, Cynthia S. Miller and Performance Professionals, Inc. file this

Amended Complaint for Damages and Demand for Jury Trial (the "Amended Complaint") as

follows:

I. INTRODUCTION

1. This is an action brought by JEFFREY M. MILLER ("Mr. Miller"); CYNTHIA S.

MILLER ("Ms. Miller"); and PERFORMANCE PROFESSIONALS, INC. ("Performance")

(collectively "Plaintiffs") against JUNIOR ACHIEVEMENT OF CENTRAL INDIANA, INC.

("JACF'); JENNIFER BURK ("Ms. Burk"), Individually and in her Official Capacity; CENTRAL

INDIANA COMMUNITY FOUNDATION, INC. ("CICF"); and BRIAN PAYNE ("Mr. Payne"),

Individually and in his Official Capacity (collectively "Defendants").

2. This is an action against Defendants for defamation, as well as tortious interference sip eti,441

with a business and/or contractual relationship, intentional infliction of emotional distress and loss

of consortium. The Plaintiffs seek damages based on these claims because the Defendants

wrongfully, in bad faith and with malice made unfounded statements that Mr. Miller

misappropriated funds. These unfounded and untrue statements cost Mr. Miller a job opportunity

as well as caused great damage to his reputation. Ms. Miller has suffered a loss of consortium and

Performance has been caused great financial damage as a result of Defendants' acts against Mr.

Miller.

II. JURISDICTION

3. This Court has subject matter jurisdiction to decide these state law claims. This

Court also has personal jurisdiction over the parties who are Marion County, Indiana residents.

III. VENUE

4. Mr. Miller is currently a resident of Indianapolis, Marion County, Indiana.

5. Ms. Miller is currently a resident of Indianapolis, Marion County, Indiana.

6. Performance, an Indiana corporation, is currently located in Indianapolis, Marion

County, Indiana with its principal office at 948 Tamarack Circle N. Drive, Indianapolis, Indiana

46260.

7. JACI is currently located in Indianapolis, Marion County, Indiana with its principal

office at 7435 North Keystone Avenue, Indianapolis, Indiana 46204.

8. Ms. Burk is currently a resident of Indianapolis, Marion County, Indiana.

9. CICF is currently located in Indianapolis, Marion County, Indiana with its principal

office at 615 North Alabama Street, Suite 119, Indianapolis, Indiana 46204.

10. Mr. Payne is currently a resident of Indianapolis, Marion County, Indiana.

2

11. This cause of action arose in Indianapolis, Indiana, which is located in Marion

County. Thus, the instant cause of action is properly venued in Marion Superior Court.

IV. PLAINTIFF

12. At all times relevant to this action, Mr. Miller resided in Indianapolis, Marion

County, Indiana.

13. At all times relevant to this action, Ms. Miller resided in Indianapolis, Marion

County, Indiana.

14. At all times relevant to this action, Performance was located in Indianapolis, Marion

County, Indiana with its principal office at 948 Tamarack Circle N. Drive, Indianapolis, Indiana

46260.

V. DEFENDANTS

15. At all times relevant to this action, JACI was located in Indianapolis, Marion

County, Indiana.

16. At all times relevant to this action, Ms. Burk was the President and Chief Executive

Officer of JACI and employed by JACL

17. At all times relevant to this action, CICF was located in Indianapolis, Marion

County, Indiana.

18. At all times relevant to this action, Mr. Payne was the President of CICF and

employed by CICF.

VI. STATEMENT OF FACTS

19. Mr. Miller was hired as the President and CEO of JACI in September of 1994.

20. Mr. Miller held this position with JACI for nearly fifteen (15) years before retiring

in December of 2008.

3

21. Prior to his role at JACI, Mr. Miller served for two (2) years as President and CEO

of Junior Achievement of the Michigan Edge, Inc., located in Jackson, Michigan and also served

for two (2) years as President and CEO of Junior Achievement of South Florida, located in Fort

Lauderdale, Florida.

22. Mr. Miller publicly announced his retirement as the President and CEO of JACI on

July 7, 2008.

23. Mr. Miller retired from JACI on December 31, 2008.

24. Mr. Miller, however, continued in his role as the President of the Experiential

Learning and Entrepreneurship Foundation ("ELEF") until February of 2010, a position he had

held since 1994. ELEF is a separate organization that supports JACI.

25. Ms. Burk was a member of the JACI Board for ten (10) years, from approximately

1999-2009. She also served as interim President and CEO of JACI from January 1, 2009 to June

30, 2009. On July 1, 2009, Ms. Burk became the President and CEO of JACI.

26. Ms. Burk also became a member of the ELEF Board on January 1, 2009.

27. In May of 2008, after two (2) years of cultivation and negotiation, a three-way

collaborative project was announced between JACI, Ivy Tech Community College ("Ivy Tech")

and ELEF. Mr. Miller had developed this project and secured donations which constituted several

years of work with Ivy Tech and the Eugene Glick family.

28. The terms of the collaboration provided for ELEF to construct the Culinary and

Hospitality School ("Culinary School") on the JACI campus and for Ivy Tech to lease the Culinary

School from ELEF once the Culinary School was fully constructed and furnished with the latest

culinary equipment

29. The Culinary School project was to be primarily funded by the CICF/Glick Fund

4

(which is managed by the CICF), as well as the Helping Fund and other various contributions.

30. Contributions for the Culinary School were made directly to JACI. With the

knowledge and authorization of JACI's Board, these contributions were transferred to ELEF for

disbursement on Culinary School construction expenses.

31. The CICF/Glick Fund Grant ("CICF/Glick Grant") was a joint grant to JACI and

Ivy Tech with $2.0 million dollars going to JACI and $1.0 million dollars going to Ivy Tech.

32. JACI assigned the CICF/Glick Grant to ELEF so ELEF could receive and disburse

the funds for the Culinary School.

33. The CICF/Glick Grant was to be disbursed once the CICF/Glick Fund received

invoices for qualified construction/project expenses of the Culinary School.

34. Payments for construction/project expenses of the Culinary School from the

CICF/Glick Grant were to be processed on a monthly basis by ELEF until the CICF/Glick Grant of

$2.0 million was expended toward the $4.0 million construction project.

35. The Helping Fund Grant was a $2.0 million dollar pledge made in 1997 to the JA

endowment fund (which was held by ELEF). Because of spending by JACI from the Helping Fund

Grant, the balance of this pledge from the Helping Fund Grant in 2008 was $1.3 million dollars.

The Culinary School was to be funded in part by this $1.3 million remaining in the Helping Fund

Grant.

36. With funding in place and the building team selected, construction of the Culinary

School began in August of 2009.

37. Construction of the Culinary School stopped indefinitely in approximately January

of 2010 because the CICF/Glick Fund stopped providing the funding for the invoices submitted by

ELEF, even though the $2 million grant amount had not been expended.

5

38. Even though Mr. Miller had provided valid and accurate construction invoices for

all monies disbursed by the CICF/Glick Fund for the Culinary School construction project, Ms.

Burk and Mr. Payne claimed that Mr. Miller somehow misappropriated the funds.

39. Ms. Burk also made the same claim to the Helping Fund, and the Helping Fund

stopped its contributions to the Culinary School project.

40. Ms. Burk believed that the funds pledged to the Culinary School should instead be

paid to JACI's general operating fund.

41. Without any basis in fact, Ms. Burk and Mr. Payne have made defamatory

statements about Mr. Miller and his fifteen-year tenure at JACI and at ELEF.

42. During a JACI Executive Committee meeting on October 22, 2009, Ms. Burk stated

that Mr. Miller had been "very dishonest" about funds she believed should be available to JACI.

This was false.

43. In the fall of 2009, Ms. Burk also told Sharon Lents, the former JA Chief Operating

Officer ("COO"), that "Jeff Miller's House of Cards is about to fall down." Again, this statement

was false.

44. A member of the JACI Executive Committee also stated in December of 2009 that

JACI's difficult economic situation was not Ms. Burk's fault, but that Ms. Burk inherited it from

Mr. Miller. This is also false.

45. In March of 2010, Ms. Burk stated that she was distancing JACI from Mr. Miller

and ELEF, implying that Mr. Miller had misappropriated funds. There is no reasonable basis for

Ms. Burk to make such defamatory and false statements.

46. In early 2010, Mr. Miller was in discussions with individuals in the Mayor of

Indianapolis Greg Ballard's office, including Michael Huber (Director of Enterprise Development

6

— now Deputy Mayor) and Chris Cotterill (Chief of Staff), regarding the position of Senior Policy

Advisor.

47. Mr. Miller's job description, title and salary for the Mayor's Office had been agreed

upon between Mr. Miller and Mr. Cotterill.

48. An announcement regarding Mr. Miller's position with the Mayor's Office was

scheduled for the end of February of 2010.

49. Mr. Miller, however, did not receive this position with the Mayor's Office because

of Ms. Burk's and Mr. Payne's defamatory statements and interference.

50. Mr. Cotterill withdrew the offer of employment to Mr. Miller based on statements

made by Mr. Payne to Mr. Cotterill regarding alleged misappropriation of funds by Mr. Miller. Mr.

Payne made such statements based on representations from Ms. Burk.

51. Mr. Payne informed Mr. Cotterill that concerns had arisen regarding Mr. Miller and

the way the CICF/Glick Grant funds were inappropriately moved around at JACI and/or ELEF.

52. Ms. Miller suffers from a loss of consortium as a result of Defendants' defamation

and intentional infliction of emotional distress upon her husband, Mr. Miller.

53. The defamatory statements made by Ms. Burk and Mr. Payne have materially

damaged Mr. Miller and Mr. Miller's and Ms. Miller's consulting business, Performance, a

business which Mr. Miller and Ms. Miller formed upon retirement from JACI.

VII. STATEMENT OF CLAIMS

COUNT I (Defamation Per Se)

54. Plaintiffs incorporate the allegations of paragraphs 1 through 53 above, and, in

addition, state that Defendants' conduct in this matter constitutes defamation per se.

55. The actions of Defendants as described herein are without privilege, legal

7

justification or excuse.

56. Defendants communicated unfounded statements regarding misappropriation of

funds by Mr. Miller to the Mayor's Office, as well as other unfounded statements regarding Mr.

Miller's tenure at JACI.






with malice.


professional and personal reputation, as well as injury to Performance.

60. Defendants' communication and conduct regarding Mr. Miller constitutes

defamation per se.

COUNT II (Defamation Per Quod)


addition, state that Defendants' conduct in this matter constitutes defamation per quod.

62. Defendants communicated unfounded and false statements regarding

misappropriation of funds by Mr. Miller to the Mayor's Office, as well as other unfounded

statements regarding Mr. Miller's tenure at JACI.



8




with malice.


professional and personal reputation, as well as injury to Performance.

66. In the event that the Defendants' communications and conduct toward Mr. Miller

are not found to be defamation per se, then Defendants' communication and conduct toward Mr.

Miller constitutes defamation per quod.

COUNT III (Tortious Interference with Business and/or Contractual Relationships)

67. Plaintiffs incorporate the allegations of paragraphs 1 through 66 above and, in

addition, state that the conduct of the Defendants in this matter intentionally interfered with Mr.

Miller's business and/or contractual relationship with the Mayor's Office and with Performance.

68. The Defendants were aware of Mr. Miller's business relationship and potential

contractual job opportunity with the Mayor's Office.

69. The Defendants' defamatory statements to individuals in the Mayor's Office

regarding Mr. Miller's alleged misappropriation of funds constitutes intentional interference with

the business and/or contractual relationship between Mr. Miller and the Mayor's Office.

70. There was no justification for the Defendants' illegal interference.

71. As a result of the Defendants' interference with Mr. Miller's business and/or

contractual relationship with the Mayor's Office, Mr. Miller has suffered damages.

72. Further, Performance, a business which Mr. Miller and Ms. Miller formed upon

retirement from JACI, has been financially damaged as a result of Defendants' actions.

9

73. The Defendants were aware of Mr. Miller's and Ms. Miller's business relationship

with Performance.

74. The Defendants' defamatory statements regarding Mr. Miller's alleged

misappropriation of funds constitutes intentional interference with the business relationship

between Mr. Miller, Ms. Miller and Performance.

75. As a result of the Defendants' interference with Mr. Miller's and Ms. Miller's

business relationship with Performance, Mr. Miller, Ms. Miller and Performance have suffered

damages.

COUNT IV (Intentional Infliction of Emotional Distress)


addition, state that Defendants' conduct in this matter constitutes intentional infliction of emotional

distress.

77. Defendants' actions in this matter constitute extreme and outrageous conduct.

78. Defendants' intentional conduct caused severe emotional distress to Mr. Miller.

79. Defendants are subject to liability for Mr. Miller's emotional distress.

COUNT V (Loss of Consortium)


addition, state that Defendants' conduct in this matter caused Ms. Miller to suffer a loss of

consortium.

81. Defendants are liable to Mr. Miller in this matter.

82. Ms. Miller suffered damages and/or a loss because of the injury to Mr. Miller.

83. Ms. Miller is and was at all relevant times married to Mr. Miller. • • -

10

84. Defendants' actions against Mr. Miller were the proximate cause of any damages

and/or loss sustained by Ms. Miller.

VIIL PRAYER FOR RELIEF

WHEREFORE, Plaintiffs Jeffrey M. Miller, Cynthia S. Miller and Performance

Professionals, Inc. pray for judgment in their favor and against Defendants and that the following

be awarded:

a. Order Defendants to make whole Mr. Miller, Ms. Miller and Performance by

providing compensation for past and future pecuniary losses resulting from the

unlawful practices described above, in amounts to be determined at trial.

b. Order Defendants to make whole Mr. Miller by providing compensation for past


above, including emotional pain, suffering, inconvenience, loss of enjoyment of life,

and humiliation, in amounts to be determined at trial.

c. Order Defendants to make whole Ms. Miller by providing compensation for past


above, including loss of consortium, in amounts to be determined at trial.

d. Order Defendants to pay Mr. Miller, Ms. Miller and Performance punitive damages

for their malicious and reckless conduct described above, in amounts to be

determined at trial.

e. Order Defendants to pay Mr. Miller damages for any and all injuries to his career,

profession and personal reputation.

11

f. Award Mr. Miller, Ms. Miller and Performance the cost of this action including

reasonable attorney fees and any such other relief as the Court may deem just,

proper and equitable.

IX. RESERVATION OF RIGHTS

Pursuant to the rules of pleading and practice, Mr. Miller, Ms. Miller and Performance

reserve the right to assert additional violations of federal and state law.

X. JURY TRIAL

Mr. Miller, Ms. Miller and Performance demand trial by jury on all issues so triable.


Ilk LA_:" ilk I A . Betz, A No. 14188-82

. Maddox, Atty. No. 26522-49 eys for Plaintiff Jeffrey M. Miller, Cynthia S.

r and Performance Professionals, Inc.


12



following by First Class United States Mail, this 2°d day of September, 2010:

Heather L. Wilson, Esquire Darren A. Craig, Esquire Frost Brown Todd, LLC 201 North Illinois Street, Suite 1900 Indianapolis, Indiana 46204



eta kit A/.1 A. Maddox

13

FILED FEB 2 ,, tni

CIPPri UtiaP CLLR OMR MARION CIRCUITCOURT

RECEIVED FEB 2 8 2011

STATE OF INDIANA IN THE MARION SUPERIOR COURT ) SS:

COUNTY OF MARION ) CAUSE NO: 49D14-1003-PL-014761

JEFFREY M. MILLER; CYNTHIA S. MILLER;

Plaintiffs,

VS.


Defendants.

ORDER COMPELLING DISCOVERY

This matter came before the Court upon Plaintiffs' Motion for Order Compelling Non-Party

Discovery, -and the Court, having considered the same and being duly advised, hereby finds that the

Motion should be GRANTED.

Non-Party The Indianapolis Star is hereby ORDERED to produce immediately the following:

1. Any and all records, documents, including electronic information or documents and/or digital information of all kinds, log files, reports, notes or any other documentation, relating to the posting and/or identity of "DownWithTheColts," the individual who posted a comment on the article titled "Junior Achievement faces questions, audit" (dated March 19, 2010) posted on IndyS tar.com .

Dated: FEB 23 2011

Judge, Marion Superior Court No. 14

DISTRIBUTION TO:

Kevin W. Betz, Esquire Jamie A. Maddox, Esquire BETz + BLEVINS One Indiana Square, Suite 1660 Indianapolis, Indiana 46204

Jan M. Carroll, Esquire BARNES & THORNBURG, LLP 11 South Meridian Street Indianapolis, Indiana 46204-3535



James S. Stephenson, Esquire Ian L. Stewart, Esquire STEPHENSON, MORROW & SEMLER 8710 N. Meridian Street, Suite 200 Indianapolis, Indiana 46260

1 1 1 . Q.

EXHIBIT

E.

Rule • 3 .APPELLATE PROCEDURE

date the record of the proceedings is .filed with the clerk of the Supreme Court and -Court :of Appeals. Prior thereto, the appellate tribunal may, whenever necessary, exercise limited jurisdiction. in raid of its appellate jurisdiction. Upon the tiling,Ot thexeCord.of proceedings, the-appellant shall .pay a. filing fee of two hundred fifty ($250) dollars. . The fee is not applicable in a case prosecuted as. a pauper cause: or -on . behalf of a governinental unit. . (13) Time. Within Which the; ;Appeal Must: Be

Submitted. In all appeals and reviews, _except Ahese -from interlocutory -orders, the -record of ..the,.preeeed-ings must be filed' with the clerk of. the .-Snprenie -Court and .Court of. Appeals Within .ninety...1901-days from the : date the praecipe isfiled. In appeals...and reviews. of interlocutory .orders,- the reeord.- -of. . the proceedings shall be . filed no, later :than ,thirty, (30) -days from the date the praecipe is .filed.. ,However, if the statute under which the. appeal er reView.i .s. taken fixes a shorter time, the time fixed by the 4401W shall prevail. . , . Amended effective Feb. 16, .1989; amended . 1991, effective Jan. 1, 1992; amended effective Jan. 24, 1992; amended effective . Feb. 11, 1992. ".

Rule 4. Consideration of Appeals (A) Appeals From Final Judgments. Appeals

may be taken by either party from•all final judgments or circuit, superior, probate, criminal, juvenile, county, and where provided by statute for municipal Courts. When a Motion to Correct Error is used, .a ruling or order by the trial court granting or denying the same shall be deemed a final judgment, and an appeal may be taken therefrom. The Supreme Court shall have exclusive jurisdiction of:

(1) Admissions to practice law; (2) The discipline and disbarment of attorneys ad-

mitted to the practice of law; . . (3) Matters arising with reference to the unautho-

rized practice of law; . (4) The discipline, removal and retirement of jus-

tices and judges of the State of Indiana; (5) Supervision of the exercise of jurisdiction by the

other courts of the State, including the issuance of writs of mandate and prohibition;

(6) Issuance of writs necessary or appropriate in aid of its jurisdiction;

(7) An appeal in a criminal case in which a sentence of death, life imprisonment or a minimum term of greater than fifty (50) years for a single offense is imposed, and an appeal from the denial of pOst-convic-tion relief in which the sentence was death;

(8) Appealable cases where a state or federal stat-ute has been declared unconstitutional in whole .or in part;

(9) When an appeal is filed in the office of the clerk, in the Court of Appeals, appellant or appellee may

petition the Supreme Court to transfer such MI appeal -to - the: Supreme Court upon a showing, under oath, that•the.appeal involves -a substantial question of law of great public importance and that . an emergency exists for a speedy determination. The Supreme Court in its discretion may grant said petition and thereby take jurisdietionuf such appeal.

(B) [Appeals to Court: of Appeals.] In all other cases, appeals 'shall be taken to the Court of Appeals, notwithstanding any law; 'statute or rule providing for direct appeal to the Supretne Court of Indiana. Also, appeal from interlocutory orders shall be taken to the Court of Appeals in the following cases:

(1) For -the • payment 'of money or to compel the execution of anyinstrutnent of writing', or- the deliv-ery or assignment of any securities; evidence of debt, documents' or thinka in action;

{2) For the delivery of the possession of real property or the sale thereof; •

(3) Granting; :or refusing .to grant, or dissolving or overruling motions. to dissolve preliminary in-junctions; or the appatitment of receivers;

(4) Orderii- and judgnients upon writs of habeas corpus not otherwise authorized to be taken directly to the Supreme "Court;

(5) Transferring or refusing in transfer a case pursuant to Trial Rule 75;

(6) Any other interlocutory order, if the trial court certifies and the court on appeal or a judge thereof finds on petition that:

(a) The 'appellant will suffer substantial ex-pense, damage or injury if the order is erroneous and the determination thereof is withheld until after judgment; or. .

(b) The order involves a. substantial question .of law, the early determination of which will pro-mote a mere orderly disposition of the case, or

(c) The remedy by appeal after judgment is otherwise inadequate. The petition: under sub-sectlon (6) of subdivision (B.) of this rule shalt not stay proceedings in the trial court unless the trial court judge or the court on appeal or 'a judge thereof shall so:•rder, and such order may be made conditional upon the furnishing of a bond or security protecting the appellee against loss in-curred thereby, if any.

Any law, statute or rule or part thereof in conflict-with the provisiona'-set forth hereinabove are superseded by these rules, and the portions in conflict with these rules are hereby held vacated, set aside and held. for naught.

-(C)- Appeals -From Agency DecisionsJ:The Court of Appeals shall -have jurisdiction 'to entertain actions in -aid of its appellate jurisdiction and to review final decisions of the Workers' Compensation. Board; the Department of Workforce Development, the Utility Regulatory Commission, and the - Civil Rights Com-

272

APPELLATE =PROCEDURE Rule 7.1

mission, and review • final decisions of administrative bodies, boards, and persons as provided by statute for the Appellate. Court and Court of Appeals.: It sha11 be unnecessary ,.to . file . an assignment ..of errors, in the Court of .Appeals to assert that the ..decision of ..any . board, agency, or _other. administrative .body contrary to law. issues and grounds for,,,ap .. appropriately . preserved before ! the board, agency or other administrative body may be initially addressed. in the appellate brief.. . .

(D) Transfer :of Appeals. Whenever, in the opini.. ion of: the Chief Justice of the State, there...is...' disparity between the cases in the .Court of Appeals. and the Supreme Court or , between the districts in the Court . of Appeals,. the Chief Justice may order a transfer of such. cases on appeal from one. court . to,the other court or from one .district.to the other, in .order to overcome sUch.disParity and expedite the determination of appeals. . • •

(E) Dismiss • of Appeals. No appeal. will • be• dis-missed as of right because .the case was not. finally disposed of in the court„below as to.all issues, and parties, 'but upon suggestion or discovery of such a situation : the. appellate tribunal may, in its discretion, suspend consideration untlidisposition is made of such issues, or it may pass upon such adjudicated issues as are severable without prejudice to parties who. may be aggrieved by subsequent proceedings in the court below. . • • . •

(F) Order . in Which Appeals -Considered. All. causes - shall be entered on the docket of the court on appeal in 'the order in which .they. are filed. Appeals in criminal and habeas corpus, cases, cases.originating before. the Utility Regulatory ,,(ommission .and the Workers' Compensation Board,. and all other :'cases entitled to precedence . by operation of law shall be advanced on the docket for. the consideration of the court. On written application of either party, other causes which involve the constitutionality of anylaw, the public revenue, public health, the settlement of trusts. or estates, Or which are otherwise of general public concern, may likewise be advanced by 'order of the court after they are hilly briefed. . Causes ad-vanced as - aforeSaid .shall be entitled to precedence' in the consideration of the court Amended Aug. 9, 1971, effective Jan. 1, 1972; amended Nov. 24, 1975, effective Jan. 31, 1976; amended Nov. 3, 1981, effective Jan. 1, 1982; amended Dec.. 19, 1985, 'effective Jan. 1, 1986; amended Nov. 14; 1988, effective Jan. 1989; amended effective Feb. .16, 1989; amended Nov. 30, 1989, effective Jan. 1, 1990; amended Oct. 30, 1992 ;. effective Jan.. 1, 1993; amended May 9, 1994, effective July 1, 1994; amended Dec. '15, 1995, .effective Feb. 1, 1996.. • Amended Nov. 26, 1997. effective Jan. 1, 1998. 'amended Dec: 4, 1998, effective Jan. - 1, 1999.

Rule.5. Joint and:consolidated appeals

may jointly appeal, or may join in appeal: after filing separate...appealS. • They may thereafter proceed on: appeal as - a single appellant.

(B:) Consolidation on ApOeal.• When two (2) or More actions 'have been consolidated for the purpose of trial - in the court:belovi Or where on appeal two (2) or more actions: involve a cormnon question of law Or fact, the court On appeal•may, on its•own motion or on' petition,: order ,a consolidation of any :part or all the records or proceedings on appeal, -in. the -furtherance of convenience and avoidance :of unnecessary cost and delay.

Without being limited.. hereto; such court may spe-cifically..1prOvide for the !omission of any exhibits •or, pleadings which are duplicitous in. nature,.: as well transcripts of orders and original,or copies .of; bills of. exceptions and .exhibits to the extent . that they, are duplicated in anyone or More of the actions consoli . dated therewith.

Rule 6.— Appeal bonds Bond. (A), Copt Bond. All appeals prosecuted without a

bond.sufficient to,se,cure the payment of costs may be dismissed .upon. motion and a sufficient showing by affidavit that the appellant is a non-resident of the state, unless a bond sufficient to cover costs shall.be filed within a time fixed .by the court. Notice shall .be given as in the case of other motions, Notice of the. order made upon such motion shall be given by the clerk to the party lir his attorney. • • •

(A) Bonds in Appeals. .No..appeal bond shall be . from . necessary to perfect .an appeal from any judgment Or

appealable interlocutory order. Enforcement of a jUdgmerit or appealable interlocutory order, however, will be suspended during appeal upon the giving of an adequate bond• with. approved sureties. The: trial court 'or judge -thereof shall' have jurisdiction to fix and approve the bond and order a stay pending an appeal as well as prior to the appeal. If the stay is denied by the trial court or judge thereof, the appellate tribunal May reconsider the application at any time after .deni-al . upon a proper shoWing by certified copies of the trial court's action and grant or deny the same and fix the bond.' 'Provided, however, no bond shill be re-quired from a governmental organisation as provided . in Trial Rule. 62(E).: ; .• .Nothing...herein . be con-strued.as giving a right to stay, •y giving such bond, any judgment. or. order .which cannot now be. stayed and suspended by the giving °fan. appeal bond. , Amended effective Sept; 21, 1971:

Role 71. Form of the Record of the'Proceedings Part I: Submission of Record in Paper Based '

Format (A) Binding. The record of the proceedings shall;

ri

be placed in an appropriate cover and fastened or (A) Joint Appeals. If two (2) or more persons are entitled to appeal from a judgment or order and their bound at the top. It is recommended that post bind, : interests are such as to make joinder practicable, they ers be used for this purpose. . ,

273