                                                                              FILED
                                                                          Jul 03 2018, 9:15 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
Larry L. Barnard                                           Nathaniel Lee
Grant A. Liston                                            Jennifer Lee
Carson Boxberger LLP                                       Lee Cossell & Crowley, LLP
Fort Wayne, Indiana                                        Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

William R. Harr and                                        July 3, 2018
Finster Courier, Inc. d/b/a                                Court of Appeals Case No.
Elite Express,                                             49A02-1711-CT-2595
Appellants-Defendants/Cross-Appellees,                     Appeal from the Marion Superior
                                                           Court
        v.                                                 The Honorable John F. Hanley,
                                                           Judge
Julian Hayes and Tracey Hayes,                             Trial Court Cause No.
Appellees-Plaintiffs/Cross-Appellants.                     49D11-1510-CT-35449




Robb, Judge.




Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018                           Page 1 of 24
                                Case Summary and Issues
[1]   Following an accident between two semi-tractor trailers, a lawsuit commenced

      between the two drivers, Julian Hayes (“Hayes”) and William R. Harr, and

      Harr’s employer, Finster Courier, Inc., d/b/a/ Elite Express (collectively,

      “Defendants”). The Defendants attempted to remove the case to federal court

      contending the parties were citizens of different states and that the amount in

      controversy exceeded $75,000. Hayes objected to removal, arguing such action

      was premature and that the amount in controversy did not exceed $75,000.

      The district court determined it lacked subject matter jurisdiction and remanded

      the case to state court. Following a jury verdict in state court of $187,500 in

      favor of Hayes, the Defendants filed a motion to correct error and asked the

      trial court to modify the judgment to $75,000 based on the doctrines of judicial

      estoppel, waiver, and judicial admission. The trial court denied the

      Defendants’ motion and the Defendants now appeal, raising the sole issue of

      whether the trial court erred in denying their motion to correct error. Hayes

      cross-appeals, arguing the appeal is frivolous and requesting attorneys’ fees.

      Concluding the trial court did not err in denying the Defendants’ motion to

      correct error and that Hayes is not entitled to attorneys’ fees, we affirm.



                             Facts and Procedural History
[2]   On July 23, 2015, two semi-tractor trailers collided on Interstate 465 causing

      injury to one of the drivers, Julian Hayes. On October 26, 2015, Hayes filed

      suit in the Marion Superior Court against the other driver, William Harr, and

      Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018   Page 2 of 24
      Harr’s employer, Finster Courier, Inc., d/b/a/ Elite Express.1 Almost

      immediately, Defendants filed a notice of removal alleging diversity of

      citizenship under 28 U.S.C. § 1332. 28 U.S.C. § 1332 provides, in relevant part:


                 (a) The district courts shall have original jurisdiction of all civil
                 actions where the matter in controversy exceeds the sum or value
                 of $75,000, exclusive of interest and costs, and is between--


                         (1) citizens of different States . . . .


[3]   The Defendants alleged that the district court possessed diversity jurisdiction

      because “the amount in controversy exceeds the sum or value of Seventy-Five

      Thousand Dollars ($75,000), exclusive of interest and costs,” and that Harr is a

      citizen of Pennsylvania, Finster is incorporated in New Jersey, and Hayes is a

      citizen of Indiana. Appellees’ Appendix, Volume II at 5-6. Upon the

      Defendants’ motion, the case was removed to the United States District Court

      for the Southern District of Indiana, Indianapolis Division. On December 16,

      2015, Hayes filed a motion to remand, arguing removal was “pre-mature in not

      having conducted discovery to investigate the amount of this claim or even

      inquire as to Plaintiff’s demand.” Appellants’ Corrected Appendix, Volume II

      at 52. Hayes alleged that the district court lacked subject matter jurisdiction:




      1
          The complaint was subsequently amended to add Tracy Hayes, Hayes’ wife, as a plaintiff.


      Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018                       Page 3 of 24
              3. Plaintiff further provides that diversity jurisdiction is not met
              in this matter because the amount in controversy does not exceed
              Seventy-Five Thousand Dollars ($75,000.00).


              ***


              6. On December 16, 2015, Plaintiff submitted his first demand to
              Defendants in the amount of Seventy-Two Thousand, Five
              Hundred Dollars ($72,500.00). [Exhibit "I"].


              7. Therefore, even if the citizenship of the parties is diverse, the
              requirements of diversity jurisdiction under 28 U.S.C. §1441 are
              not met because the amount in controversy does not exceed
              Seventy-Five Thousand Dollars ($75,000.00).


      Id. at 52-53.


[4]   At the time of removal, Hayes had been released to return to work full time but

      was receiving ongoing medical treatment and had accumulated around $3,500

      in medical bills. His workers compensation claim was still being processed.

      The same day Hayes filed the motion to remand, he also submitted a settlement

      demand for $72,500. In response, the Defendants sent a letter stating that they

      would agree to remand the case if Hayes would “provide[] assurance that he

      would not execute on any potential judgment over $75,000,” and included a

      proposed covenant not to execute. Id. at 77. Hayes responded that “WE [sic]

      cannot agree to any agreement without payment. Are you offering the $75,000?

      If so, send a check.” Id.




      Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018        Page 4 of 24
[5]   On December 29, Defendants objected to remanding the case, arguing the

      amount in controversy was clearly over $75,000 because Hayes refused to sign

      the proposed covenant. Id. at 78. On January 20, 2016, the district court

      granted Hayes’ motion to remand, determining that it lacked subject matter

      jurisdiction because it is the removing party’s burden to establish by a

      preponderance of the evidence that each requirement of 28 U.S.C. § 1332 has

      been met and “Defendants have made no effort whatsoever to explain why they

      had a good faith belief, at the time of removal, that the amount in controversy

      exceeded $75,000.” Id. at 78-79.


[6]   With the case back in Marion Superior Court, Defendants filed a motion to

      limit entry of judgment. The basis of the Defendants’ motion was the district

      court’s grant of Hayes’ motion to remand in which Hayes asserted the district

      court lacked subject matter jurisdiction “because the amount in controversy

      does not exceed $75,000.” Id. at 46. Defendants therefore argued that, “Under

      the doctrine of judicial estoppel, any judgment entered in favor of the Plaintiffs

      in this case must be limited to $75,000.00.” Id. at 47. Defendants included in

      their motion to limit entry of judgment what they purported to be a “true and

      exact copy of the [district] Court’s Order . . . marked as Exhibit ‘C.’” Id.

      However, Defendants’ Exhibit C omitted page 5 of the district court’s order in

      which the district court discussed the Defendants’ failure to meet their burden

      of proof regarding each requirement of 28 U.S.C. § 1332.


[7]   On July 31, 2017, Hayes moved to strike the Defendants’ motion to limit

      damages. Hayes cited the omitted page of the district court’s order and argued

      Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018    Page 5 of 24
      “the [district] Court order clearly demonstrates that the Defendants failed to

      meet their burden to demonstrate all of the elements necessary for federal court

      jurisdiction.” Id. at 64. In a supplemental response to the Defendants’ motion

      to limit entry of judgment, Hayes stated that since the removal action, a

      physician had determined that Hayes had an 8% permanent impairment and

      that his medical expenses totaled over $21,000. These facts, coupled with

      Hayes’ “ongoing and incomplete” treatment, Hayes argued, caused the current

      value of the case to be “substantially higher today than at the time this lawsuit

      was filed.” Id. at 87. Therefore, while Hayes “would have gladly accepted

      $72,500.00” at the time of removal, “the value has increased and the

      Defendant[s] owe more than the original amount in controversy.” Id. at 88.


[8]   A jury trial was conducted on August 8 and 9, 2017. The jury returned a

      verdict for Hayes in the amount of $187,500 and the trial court subsequently

      denied Defendants’ motion to limit entry of judgment to $75,000 and

      Defendants’ motion to correct error regarding the same. In so doing, the trial

      court explained:


              This Court remains troubled by the notion that a party may
              represent to the U.S. District Court that the amount in
              controversy in a case is less than the jurisdictional requirement,
              and then, once remanded, that it exceeds that amount. However,
              neither party has pointed to any precedent which expressly
              prohibits such a practice. The parties submitted this matter to a
              jury in this Court for determination. The jury, as the trier of fact,
              determined that the Plaintiffs’ damages totaled One Hundred
              Eight-Seven [sic] Thousand Five Hundred and 00/100 Dollars



      Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018    Page 6 of 24
               ($187,500.00). The Court finds that the jury’s verdict should not
               be disturbed.


       Order at 4.


[9]    Defendants now appeal and Hayes cross-appeals for an award of attorneys’

       fees, costs, and post-judgment interest, alleging that Defendants filed the

       underlying “frivolous appeal, which is meritless and . . . filed in bad faith, for

       purposes of harassment, and delay.” Response Brief of Appellee at 25.



                                   Discussion and Decision
                           I. Defendants’ Appeal: Jury Award
[10]   Defendants allege the trial court erred in denying their motion to correct error

       and refusing to modify the verdict entered by the jury to $75,000 under the

       doctrines of judicial estoppel, waiver, and/or judicial admission.


                                         A. Standard of Review
[11]   We review rulings on motions to correct error for an abuse of discretion.

       Walker v. Kelley, 819 N.E.2d 832, 836 (Ind. Ct. App. 2004). An abuse of

       discretion occurs if the trial court’s decision was against the logic and effect of

       the facts and circumstances before the court or if the court misapplied the law.

       Id. However, to the extent a motion to correct error presents purely questions

       of law, we review such questions de novo. Indiana BMV v. Charles, 919 N.E.2d

       114, 116 (Ind. Ct. App. 2009).



       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018     Page 7 of 24
                                           B. Judicial Estoppel
[12]   Defendants allege that trial court erred in denying their motion to correct error

       and failing to modify the verdict entered by the jury to $75,000 under the

       doctrine of judicial estoppel.


[13]   This court has previously explained,


               Judicial estoppel is a judicially created doctrine that seeks to
               prevent a litigant from asserting a position that is inconsistent
               with one asserted in the same or a previous proceeding. Judicial
               estoppel is not intended to eliminate all inconsistencies; rather, it
               is designed to prevent litigants from playing “fast and loose” with
               the courts. The primary purpose of judicial estoppel is not to
               protect litigants but to protect the integrity of the judiciary. The
               basic principle of judicial estoppel is that, absent a good
               explanation, a party should not be permitted to gain an
               advantage by litigating on one theory and then pursue an
               incompatible theory in subsequent litigation. Judicial estoppel
               only applies to intentional misrepresentation, so the dispositive
               issue supporting the application of judicial estoppel is the bad-
               faith intent of the litigant subject to estoppel.


       Price v. Kuchaes, 950 N.E.2d 1218, 1227-28 (Ind. Ct. App. 2011) (citation

       omitted), trans. denied.


[14]   In turn, Hayes argues judicial estoppel is inapplicable for four reasons: (1)

       Hayes’ motion to remand in federal court was not a pleading; (2) Hayes did not

       repudiate an earlier position; (3) the removal action was not part of the

       proceeding before the state trial court; and, (4) that at the time of removal,




       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018     Page 8 of 24
       Hayes’ statement of the amount in controversy was not a material

       misrepresentation.


[15]   First, Hayes asserts that judicial estoppel is “completely inapplicable here

       because Hayes’ motion to remand is not a pleading under the state or federal

       rules.” Br. of Appellees at 19. Although our supreme court has described

       judicial estoppel as precluding “a party from repudiating assertions in the

       party’s own pleadings,” PSI Energy, Inc. v. Roberts, 829 N.E.2d 943, 957 (Ind.

       2005), aff’d on reh’g, 834 N.E.2d 665, we are unaware of—and Hayes has failed

       to provide us with—authority limiting the doctrine of judicial estoppel to

       pleadings. To the contrary, we have consistently applied the doctrine of judicial

       estoppel to matters outside of pleadings. See Hay v. Baumgartner, 903 N.E.2d

       1044, 1049 (Ind. Ct. App. 2009) (holding party was judicially estopped from

       stipulating to issuance of preliminary injunction and then complaining such

       injunction was wrongfully entered); Robson v. Texas E. Corp., 833 N.E.2d 461,

       466 (Ind. Ct. App. 2005) (“Judicial estoppel is applicable when a bankrupt

       debtor fails to disclose a cause of action as an asset in bankruptcy proceedings

       and then pursues the omitted cause of action in a subsequent proceeding.”),

       trans. denied; Lumbard v. Farmers State Bank, 812 N.E.2d 196, 201 (Ind. Ct. App.

       2004) (holding party was judicially estopped from complaining of defects with

       one piece of evidence while repeatedly referencing document containing the

       same defect).


[16]   Second, Hayes contends that he “never repudiated his assertion to the District

       Court that the removal is premature.” Br. of Appellees at 19. The Defendants’

       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018   Page 9 of 24
argument regarding judicial estoppel, however, involves Hayes’ claim that the

amount in controversy did not exceed $75,000, not Hayes’ claim that removal

was premature. Indeed, at least at first glance, Hayes’ motion to remand is

seemingly inconsistent. On one hand, Hayes stated that the Defendants’

motion for removal was “pre-mature in not having conducted discovery to

investigate the amount of this claim or even inquire as to [Hayes’] demand,”

while on the other hand, Hayes stated that “the amount in controversy does not

exceed $75,000, [and] as such the requirements of diversity jurisdiction are not

met.” Appellants’ Corrected App., Vol. II at 52. Twice more in the motion to

remand, Hayes asserted:


        3.    Plaintiff further provides that diversity jurisdiction is not
        met in this matter because the amount in controversy does not
        exceed Seventy-Five Thousand Dollars ($75,000.00).


        [and]


        7.     Therefore, even if the citizenship of the parties is diverse,
        the requirements of diversity jurisdiction under 28 U.S.C. §1441
        are not met because the amount in controversy does not exceed
        Seventy-Five Thousand Dollars ($75,000.00).


Id. at 52-53. However, when viewed in the context of Hayes’ argument that

removal was “pre-mature in not having conducted discovery,” id. at 52, and

that Defendants had failed to meet their burden, Hayes’ statements could

reasonably be read to mean that the amount in controversy did not presently

exceed $75,000—not that it would never exceed $75,000.


Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018       Page 10 of 24
[17]   Later, Hayes argued that additional evidence and further medical treatment had

       caused the current case valuation to be “substantially higher today than at the

       time this lawsuit was filed” and that although he “would have gladly accepted

       $72,500.00” at the time of removal, “the value has increased and the

       Defendant[s] owe more than the original amount in controversy.” Id. at 87-88.

       Hayes did, therefore, at least partially repudiate his statement that the amount

       in controversy did not exceed $75,000.


[18]   Third, Hayes appears to argue that judicial estoppel does not apply because the

       “removal action before the District Court was not part of the proceeding before

       the state trial court.” Br. of Appellee at 19. This is of no matter. As noted,

       judicial estoppel is designed to prevent litigants from playing “fast and loose”

       with the courts and is designed to protect the judiciary, not individual litigants.

       Price, 950 N.E.2d at 1227. We see no logical reason that judicial estoppel

       should be limited to representations made in the same litigation or to the same

       tribunal and we are unaware of precedent so limiting the doctrine. See, e.g.,

       Walton v. Bayer Corp., 643 F.3d 994, 1003 (7th Cir. 2011) (noting that because

       judicial estoppel’s purpose is to deter fraud in litigation, judicial estoppel should

       prevent a party from taking a position in state court counter to the position it

       used to obtain remand in federal court); Alaska Seaboard Partners Ltd. P’ship v.

       Hood, 949 N.E.2d 1247, 1255 (Ind. Ct. App. 2011) (holding judicial estoppel

       barred company from taking a position in a state action counter to the position

       of a related company in a California state action); Robson, 833 N.E.2d at 473

       (concluding genuine issues of material fact remain regarding judicial estoppel


       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018   Page 11 of 24
       where plaintiffs omitted a cause of action in previous bankruptcy proceedings

       and later pursued the action in state court).


[19]   Fourth and finally, Hayes contends that because his statement regarding the

       amount in controversy was not a material misrepresentation at the time of

       removal, judicial estoppel is inapplicable. On this point, we agree.


[20]   As we have previously explained, “[j]udicial estoppel only applies to intentional

       misrepresentation, so the dispositive issue supporting the application of judicial

       estoppel is the bad-faith intent of the litigant subject to estoppel.” Robson, 833

       N.E.2d at 466. And, we have noted that the “basic principle of judicial estoppel

       is that, absent a good explanation, a party should not be permitted to gain an

       advantage by litigating on one theory and then pursue an incompatible theory

       in subsequent litigation.” Id. (emphasis added).


[21]   At the time of Hayes’ representations regarding the amount in controversy,

       Hayes’ medical bills totaled only $3,500 and Hayes submitted his first demand

       to the Defendants in the amount of $72,500. See Grinnell Mut. Reinsurance Co. v.

       Haight, 697 F.3d 582, 585 (7th Cir. 2012) (noting that although settlement

       negotiations are not admissible at trial, they can be considered “to show the

       stakes” when determining the amount in controversy). Although Hayes was

       receiving ongoing medical treatment, it was not until after the case was




       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018   Page 12 of 24
       remanded that Hayes added his wife’s claim and he learned that he suffered an

       8% permanent impairment. 2


[22]   Defendants removed this action without filing interrogatories as to the specific

       monetary damages claimed, or otherwise investigating the specific monetary

       amount. Therefore, in conjunction with his representations regarding the

       amount in controversy, Hayes argued that removal “was pre-mature in not

       having conducted discovery to investigate the amount of this claim or even

       inquire as to Plaintiff’s demand.” Appellants’ Corrected App., Vol. II at 52.

       Accordingly, we have no reason to believe that Hayes intentionally

       misrepresented the amount in controversy or that Hayes acted in bad faith.


[23]   Ongoing medical treatment and growing medical expenses, however, are not

       uncommon in personal injury actions. For this reason alone, plaintiffs should

       be cautious of proclaiming that the amount in controversy does not exceed

       $75,000—lest they be held to their word. In this regard, we share the trial

       court’s concern “that a party may represent to the U.S. District Court that the

       amount in controversy in a case is less than the jurisdictional requirement, and

       then, once remanded, that it exceeds that amount.” Order at 4. Under certain

       circumstances, judicial estoppel would serve to prevent a plaintiff from making




       2
         Although we have no reason to believe that Hayes’ subsequent addition of his wife’s claim was due to
       broader litigation strategy to keep his claim out of federal court, we place little significance on this fact due to
       its potential for abuse.

       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018                               Page 13 of 24
       representations to defeat diversity jurisdiction and then claiming otherwise in

       subsequent litigation. Such facts, however, are not presently before us.


[24]   We have explained that judicial estoppel is not meant to be a technical defense

       to “derail potentially meritorious claims” and that we must give “due

       consideration to all of the circumstances of a particular case.” Morgan Cty.

       Hosp. v. Upham, 884 N.E.2d 275, 280 (Ind. Ct. App. 2008), trans. denied. Here,

       the Defendants filed a motion to remove the case to federal court based on

       diversity jurisdiction. As such, it was the Defendants who bore the burden to

       demonstrate by a preponderance of the evidence that the amount in controversy

       exceeded $75,000. Walker v. Trailer Transit, Inc., 727 F.3d 819, 824-25 (7th Cir.

       2013). But, as the district court concluded, the Defendants utterly failed to

       meet their burden of proof:


               . . . Here, Defendants have made no effort whatsoever to explain
               why they had a good faith belief, at the time of removal, that the
               amount in controversy exceeded $75,000, exclusive of interest
               and costs. Indeed, their only statement in the Amended Petition
               for Removal regarding the amount in controversy is that “the
               amount in controversy exceeds the sum or value of Seventy-Five
               Thousand Dollars ($75,000.00), exclusive of interest and costs.”
               Defendants do not point to any evidence to support their
               statement.


               Further, Mr. Hayes specifically argues in the Motion to Remand
               that Defendants did not complete any pre-lawsuit discovery, and
               that removal was premature without such discovery. But
               Defendants do not respond to Mr. Hayes’ argument at all, and
               still do not present any evidence in their response brief to support
               their belief that the amount in controversy exceeded $75,000,

       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018   Page 14 of 24
                exclusive of interest and costs, at the time of removal. Instead,
                Defendants rely solely on post-removal events which, as
                discussed above, are irrelevant to the Court’s analysis regarding
                whether removal was proper in the first place. Mr. Hayes has
                challenged Defendants’ assertion that the amount in controversy
                exceeds $75,000, exclusive of interest and costs, and Defendants
                have failed to meet their burden of showing by a preponderance
                of evidence — evidence existing at the time of removal — that
                the amount in controversy requirement is met.


                ***


                . . . Defendants had every opportunity to explain why they
                believed at the time of removal that the amount of controversy
                exceeded $75,000, exclusive of interest and costs, but chose not
                to do so. Accordingly, the Court finds that the removal was
                improper and that remand to the Marion Superior Court is
                necessary.


       Appellants’ Corrected App., Vol. II at 69-71 (citations to record omitted).


[25]   Interestingly, Defendants omitted the page containing the vast majority of the

       foregoing text from their motion to limit judgment to $75,000.3 Nevertheless, as




       3
         In Defendants’ motion to limit judgment to $75,000, Defendants state that “A true and exact copy of the
       [district] Court’s Order is attached hereto and marked as Exhibit ‘C.’” Appellants’ Corrected App., Vol. II at
       47. Exhibit C, however, contained only pages 1-4 and 6 of the district court’s order, omitting page 5 with the
       discussion regarding the Defendants’ failure to meet their burden of proof. Id. at 54-58. The exhibit therefore
       misrepresented to the trial court the reasoning of the district court’s order by incorrectly suggesting that the
       case was remanded because of Hayes’ statement of the amount in controversy, not the Defendants’ failure to
       meet their burden. We note also that Hayes brought this omission to the Defendants’ attention in an email
       prior to filing his response, id. at 72, and yet the Defendants did not amend their motion to include the order
       in its entirety.
       We are deeply troubled by the Defendants’ all too convenient omission and we remind counsel of Indiana
       Professional Conduct Rule 3.3(a)(3) requiring candor to the tribunal and precluding a lawyer from knowingly
       providing evidence the lawyer knows to be false. “[T]he accuracy of documents and instruments utilized by

       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018                           Page 15 of 24
       the order makes clear, the district court remanded the case because of the

       Defendants’ failure to satisfy their burden—not Hayes’ statement regarding the

       amount in controversy. After all, federal courts determine the amount in

       controversy on the date the suit was filed in state court and at the time of

       removal. See, e.g., Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir. 1993). Thus,

       even if “the plaintiff after removal, by stipulation, by affidavit, or by

       amendment of his pleadings, reduces the claim below the requisite amount, this

       does not deprive the district court of jurisdiction.” St. Paul Mercury Indem. Co. v.

       Red Cab Co., 303 U.S. 283, 292 (1938).


[26]   Judicial estoppel is limited to instances where “the allegations or admissions

       must have been acted on by the court.” Tobin v. McClellan, 225 Ind. 335, 347,

       73 N.E.2d 679, 684 (1947). We addressed this element in Allstate Ins. Co. v.

       Dana Corp., emphasizing that “[a]n essential part of the doctrine [of judicial

       estoppel] is that it prohibits a party from presenting a position contrary to one

       upon which it previously prevailed.” 737 N.E.2d 1177, 1193 (Ind. Ct. App.

       2000), vacated in part on other grounds and summarily aff’d, 759 N.E.2d 1049 (Ind.

       2001). Here, although Hayes’ position was technically successful, that success

       was due to the Defendants’ failure—not Hayes’ post-removal representations.

       After conducting further discovery or issuing interrogatories as to Hayes’




       a tribunal in a proceeding is of the utmost importance to the administration of justice and . . . fraudulent
       alteration of such documents by an officer of the court is therefore severe misconduct.” Matter of Fisher, 684
       N.E.2d 197, 200 (Ind. 1997).

       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018                           Page 16 of 24
       specific monetary damages, Defendants could have removed the case again.4

       They chose, however, not to do so.


[27]   To the extent Defendants rely on federal courts applying judicial estoppel in

       similar contexts, we find such cases distinguishable. Two of the cases involve

       pre-removal limitations of damages, as opposed to post-removal representations

       regarding the amount in controversy. Ratliff v. Merck & Co., Inc., 359 F.Supp.2d

       571, 576 (E.D. Ky. 2005); Adoff v. Protus IP Solutions, Inc., 2009 WL 3380328

       (D. Md. 2009). In the third case, the district court considered a stipulation by

       affidavit attached to the plaintiff’s motion to remand that “total damages

       claimed in this action are $54,000.” Fenger v. Idexx Labs., Inc., 194 F.Supp.2d

       601, 604 (E.D. Ky. 2002). The district court concluded that the doctrine of

       judicial estoppel would apply to prevent the plaintiff from later claiming a

       different amount of damages because it had adopted “the position urged by the

       plaintiff.” Id. at 605. Here, the district court did not adopt Hayes’ argument

       and Hayes’ representations regarding the amount in controversy are dissimilar

       to an express limitation of damages by a stipulation in an affidavit.5




       4
        28 U.S.C. §1446(b)(3) allows a defendant to file a notice of removal within thirty days after the receipt of “a
       copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the
       case is one which is or has become removable.” Removal is subject to the one-year limitation of 28 U.S.C.
       §1446(c).
       5
         Moreover, although the Sixth Circuit has apparently permitted such consideration, the Seventh Circuit has
       repeatedly rejected such practice. See Matter of Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992); see also Back
       Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011) (“[E]vents after the date of
       removal do not affect federal jurisdiction, and this means in particular that a declaration by the plaintiff
       following removal does not permit remand.”)

       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018                            Page 17 of 24
[28]   Concluding Hayes did not intentionally misrepresent the amount in controversy

       and that the district court did not act upon such representation, we therefore

       decline to apply the doctrine of judicial estoppel to the facts before us.


                                                   C. Waiver
[29]   Next, Defendants argue the trial court erred in denying their motion to correct

       error to modify the judgment to $75,000 under the doctrine of waiver. We

       disagree.


[30]   Waiver is an intentional relinquishment of a known right. T-3 Martinsville LLC

       v. U.S. Holding, LLC, 911 N.E.2d 100, 116 (Ind. Ct. App. 2009), trans. denied.

       Waiver involves “both knowledge of the existence of the right and the intent to

       relinquish it.” Westfield Nat. Ins. Co. v. Nakoa, 963 N.E.2d 1126, 1132 (Ind. Ct.

       App. 2012), trans. denied.


[31]   For this argument, Defendants rely exclusively on Jeffery v. Cross Country Bank,

       131 F.Supp.2d 1067 (E.D. Wis. 2001). There, one day before the defendant

       removed the case to federal court, the plaintiff filed an amended complaint

       expressly stating that the amount in controversy did not exceed $75,000. Upon

       a motion to remand, the district court concluded that the plaintiff had waived

       her right to recover an amount greater than $75,000 because her statement was

       both timely and a “clear and unequivocal relinquishment of her right to seek

       more than $75,000 in damages.” Id. at 1070. Here, Hayes’ representations

       were neither timely, nor “clear and unequivocal.” Id.



       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018      Page 18 of 24
[32]   As discussed in the context of judicial estoppel, it is a defendant’s burden to

       establish the amount in controversy at the time of removal. Gould, 1 F.3d at

       547. Although we have no doubt that a plaintiff is entitled to waive his or her

       right to recover more than the minimum amount in controversy, In Re Brand

       Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997), such

       waiver must occur prior to removal, In Re Shell Oil Co., 970 F.2d 355, 356 (7th

       Cir. 1992). Here, Hayes’ representations were made after the Defendants had

       removed the case and due to the context of Hayes’ argument regarding the

       Defendants’ failure to meet their burden and removal being premature, we are

       not convinced that Hayes intended to relinquish a known right.


                                         D. Judicial Admission
[33]   Finally, Defendants argue the trial court erred in denying their motion to

       correct error to modify the judgment to $75,000 under the doctrine of judicial

       admission. Again, we disagree.


[34]   Judicial admissions are voluntary and knowing concessions of fact by a party or

       a party’s attorney occurring at any point in a judicial proceeding. Stewart v.

       Alunday, 53 N.E.3d 562, 568 (Ind. Ct. App. 2016). “The party must testify

       clearly and unequivocally to a fact peculiarly within his knowledge in order for

       it to be considered a judicial admission.” Id. Judicial admissions may be

       contained in stipulations, pleadings in the case being tried, admissions made in

       open court, and admissions made pursuant to a request for admissions. Id.




       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018   Page 19 of 24
[35]   Defendants allege Hayes made a judicial admission where he repeatedly stated

       the amount in controversy did not exceed $75,000, while Hayes contends his

       argument was in the context of “then-existing facts” and that he never admitted

       that the “value of the case could never exceed $75,000.” Br. of Appellees at 24.

       As we explained in Heyser v. Noble Roman’s Inc., “A statement which contains

       ambiguities or doubt is not to be regarded as a binding admission.” 933 N.E.2d

       16, 19 (Ind. Ct. App. 2010), trans. denied. Due to the context of Hayes’

       argument regarding the Defendants’ failure to meet their burden and removal

       being premature, we conclude Hayes’ statement contains an ambiguity and

       cannot therefore be regarded as a binding judicial admission.


[36]   Quite simply, the Defendants failed to meet their burden of proof before the

       district court and then attempted to cap Hayes’ damages because of it. We

       therefore conclude the trial court did not err in denying the Defendants’ motion

       to correct error.


                   II. Plaintiffs’ Cross-Appeal: Attorneys’ Fees
[37]   Hayes cross-appeals for an award of attorneys’ fees, costs, and post-judgment

       interest, alleging that Defendants filed the underlying “frivolous appeal, which

       is meritless and . . . filed in bad faith, for purposes of harassment, and delay.”

       Br. of Appellees at 25.


[38]   We may “assess damages if an appeal, petition, or motion, or response, is

       frivolous or in bad faith. Damages shall be in the Court’s discretion and may

       include attorneys’ fees.” Ind. Appellate Rule 66(E). Our discretion to award

       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018   Page 20 of 24
       attorneys’ fees is limited to instances when “an appeal is permeated with

       meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of

       delay.” Ballaban v. Bloomington Jewish Cmty., Inc., 982 N.E.2d 329, 339-40 (Ind.

       Ct. App. 2013). Due to the potential chilling effect upon the right to appeal, we

       must use “extreme restraint” when exercising this power. Id. at 340. And, “[a]

       strong showing is required to justify an award of appellate damages and the

       sanction is not imposed to punish mere lack of merit but something more

       egregious.” Id.


[39]   Claims for appellate attorneys’ fees are classified into substantive and

       procedural bad faith claims. Id.


               To prevail on a substantive bad faith claim, the party must show
               that “the appellant’s contentions and arguments are utterly
               devoid of all plausibility.” Procedural bad faith, on the other
               hand, occurs when a party flagrantly disregards the form and
               content requirements of the rules of appellate procedure, omits
               and misstates relevant facts appearing in the record, and files
               briefs written in a manner calculated to require the maximum
               expenditure of time both by the opposing party and the reviewing
               court. Even if the appellant’s conduct falls short of that which is
               “deliberate or by design,” procedural bad faith can still be found.


       Id. (citations omitted).


[40]   Hayes first claims that the Defendants’ appeal is frivolous because the “nub of

       this appeal is the District Court’s removal/remand,” and it is “exceedingly

       frivolous for [the Defendants] to ask the Indiana Court of Appeals to essentially

       overrule the District Court’s remand order.” Br. of Appellees at 26. The

       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018    Page 21 of 24
       Defendants’ appeal, however, clearly asks that we review the trial court’s denial

       of their motion to correct error—not the district court’s order. The Defendants

       then provided a cogent argument and cited relevant authority in their attempt to

       apply the doctrines of judicial estoppel, waiver, and/or judicial admission to

       limit the entry of judgment.


[41]   Hayes next claims that the district court retained jurisdiction to rule on whether

       Hayes’ argument before the federal court was binding on the eventual jury

       verdict in state court. Although the district court retained the authority to rule

       on “collateral matters,” Wisconsin v. Hotline Indus., Inc., 236 F.3d 363, 365 (7th

       Cir. 2000), the issue presented here was whether Indiana law served to limit the

       entry of judgment under the doctrines of judicial estoppel, waiver, and/or

       judicial admission. This, of course, is a matter well within our purview. See

       e.g., League of Women Voters of Indiana, Inc. v. Rokita, 929 N.E.2d 758, 763 (Ind.

       2010) (“A federal court’s interpretation of Indiana law is not binding on Indiana

       state courts.”). Although we concluded that the Defendants’ arguments

       ultimately failed, such arguments were plausible and therefore do not justify

       punitive sanctions. See Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151, 153 (Ind.

       1987) (holding “plausible argument for clarification, modification or reversal of

       existing law” does not justify punitive sanctions).


[42]   Hayes also alleges the Defendants committed procedural bad faith throughout

       this litigation. Scattered throughout several pages of broad assertions and

       hyperbole, it appears Hayes alleges the Defendants committed procedural bad

       faith by: (1) waiting to admit fault on the eve of trial; (2) “constant teetering on

       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018   Page 22 of 24
       the value of the case”; (3) taking “immediate and premature removal, followed

       by a bargain for remand in exchange for a cap on damages”; (4) attempting to

       place a cap on Hayes’ damages; (5) failing to assert a damages cap as an

       affirmative defense; (6) concealing facts and a misleading use of the law; (7)

       utilizing an improper basis for appeal; (8) initiating this appeal to delay the

       payment of the portion of the judgment over $75,000; and (9) being

       intentionally “extremely uncooperative.” Br. of Appellees at 29-32.


[43]   To the extent Hayes alleges the Defendants utilize an improper basis for appeal,

       for reasons discussed above, see supra ¶ 40-41, we disagree. Similarly, we are

       unpersuaded by Hayes’ perfunctory assertion that “[a]t minimum, this appeal

       was filed to delay payment of the portion of the judgment over $75,000.” Br. of

       Appellees at 29. The rest of Hayes’ claims regarding procedural bad faith

       involve instances occurring before the trial court. Our discretion to award

       attorneys’ fees under Appellate Rule 66(E) is limited to instances when an

       appeal is permeated with meritlessness, bad faith, frivolity, harassment,

       vexastiousness, or purpose of delay. These claims would be properly

       considered through an appeal of the trial court’s denial of Hayes’ motion for

       costs, not a cross-appeal for attorneys’ fees pursuant to Appellate Rule 66(E).

       Hayes did not appeal such denial. Accordingly, Hayes has failed to

       demonstrate procedural bad faith and although this case has been particularly

       litigious, the Defendants do not bear such responsibility alone. We therefore

       deny Hayes’ request for attorneys’ fees.




       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018   Page 23 of 24
                                                Conclusion
[44]   For the reasons set forth above, we conclude the doctrines of judicial estoppel,

       waiver, and/or judicial admission are inapplicable on the facts before us. We

       therefore affirm the judgment of the trial court and deny Hayes’ request for

       appellate attorneys’ fees.


[45]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1711-CT-2595 | July 3, 2018   Page 24 of 24
