Filed: 5/3/2019 8:06 PM

Monroe Circuit Court 6

Monroe County, Indiana

STATE OF INDIANA ) MONROE CIRCUIT COURT NO. 6

) SS:
MONROE COUNTY ) CAUSE NO. 53C06-1804-PL-0755

MICHAEL O. CAIN and

LINDA A. RAYMOND,

Plaintiffs and Counterclaim

Defendant,

LOUIS MATAYA,

Intervening Plaintiff and Counterclaim

Defendant,

vs.

WILLIAM J. HUFF, II REVOCABLE

TRUST DECLARATION, dated June 28, 2011, and
NICOLE E. HUFF REVOCABLE
TRUST DECLARATION, dated June 28, 2011,

Defendants and Counterclaim Plaintiff.

VERIFIED MOTION FOR THE RECOVERY OF

DAMAGES AND ATTORNEY FEES

COMES NOW the Defendants, the William J. Huff, II Revocable Trust Declaration,

dated June 28, 2011, and the Nicole E. Huff Revocable Declaration, dated June 28, 2011

(“Defendants”), in person and by counsel, Thomas R. Malapit, Jr., of McKINNEY &

MALAPIT LAW, and pursuant to Rule 65(C) of the Indiana Rules of Trial Procedure, files

this Verified Motion for the Recovery of Damages and Attorney Fees and states as

follows:

1. That Plaintiffs Michael O. Cain and Linda A. Raymond filed their Complaint

for Declaratory Judgment and Injunctive Relief on April 18, 2018 and a hearing was set

on their Motion for Preliminary Injunction on May 3, 2018.

 2. This Court entered an Order on May 7, 2018 granting the Plaintiffs’ request

for a preliminary injunction and ordered that “Plaintiffs shall file a bond or undertaking with

the Clerk of the Court in the sum of $10,000.00 to be applied to the payment of such cost

and damages as may be incurred by Defendants if it is found that Defendants were

wrongfully enjoined or restrained.”

3. Defendants appealed this Court’s order and after an oral argument, the

Court of Appeals of Indiana issued an order on March 11, 2019, vacating the preliminary

injunction and remanding the case back to this Court.

4. Trial Rule 65(C) provides in relevant part: “[n]o restraining order or

preliminary injunction shall issue except upon the giving of security by the applicant, in

such sum as the court deems proper, for the payment of such costs and damages as may

be incurred or suffered by any party who is found to have been wrongfully enjoined or

restrained.” Ind. R. Trial P. 65.

5. Defendants believe they have incurred charges for attorney fees in excess

of Two Hundred Dollars ($200,000.00) in defense of this matter and request that Plaintiffs

Cain and Raymond be ordered to pay those costs, as provided in Trial Rule 65(C).

6. The recovery of attorney fees, including appellate attorney fees, is provided

for and supported by Bigley v. MSD of Wayne Twp. Sch., 881 N.E.2d 77 (Ind. Ct. App.

2008).

7. Defendants further assert that they have incurred damages in the loss of

use of their land, loss of value to their timber, disease and spoilage of their timber, travel

expenses, and other costs and damages that they believe exceed Two Hundred

2
Thousand Dollars ($200,000.00), and again request that Plaintiffs Cain and Raymond be

ordered to pay those costs, as provided in Trial Rule 65(C) and supporting case law.

I AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE FOREGOING

STATEMENTS ARE TRUE AND ACCURATE TO THE BEST OF MY KNOWLEDGE AND

BELIEF.

_______________________________
Thomas R. Malapit, Jr.

WHEREFORE, the Defendants respectfully request that the Court set a hearing

on this Motion, grant them the relief requested therein, and for all other relief just and

proper in the premises.

Respectfully Submitted,

McKINNEY & MALAPIT LAW

________________________________
Thomas R. Malapit, Jr., Atty. #19839-48
201 N. High Street
Muncie, IN 47305
T: (765) 896-8964
Attorney for Defendants

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing document has been served on the following

persons, via e-service on this the 3rd day of May, 2019.

Michael L. Carmin
Daniel M. Cyr
Carmin Parker PC
_______________________________
Thomas R. Malapit, Jr.