Appeal moot, but attorney fees allowed

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals dismissed an appeal as moot but awarded the defendant appellate attorney fees and costs because the plaintiff engaged in procedural and substantive bad faith during the appeals process.

In Samuel Lesjak v. New England Financial, No. 29A02-0706-CV-499, Lesjak appealed the trial court's order that he arbitrate a claim filed against him by New England Financial in a forum other than the National Association of Securities Dealers. Lesjak worked for New England Securities as a broker/dealer. He registered with NASD to be able to buy and sell securities to the public. The agreement he signed when he was hired stated Lesjak would agree to arbitrate through NASD any dispute or claim that may arise between himself and New England Securities.

Lesjak had an assistant, whose salary was reimbursed by New England Securities. After Lesjak quit, the company sought the return of past payments to Lesjak for his assistant's salary in the sum of more than $24,000.

New England Financial filed a complaint against Lesjak to recoup the money. A letter attached to the complaint stated New England Financial is not a legal entity and is the service mark for New England Life Insurance Co. The complaint never stated which company was suing Lesjak.

Lesjak tried to arbitrate the claim through NASD, but New England Financial opposed it. The trial court ordered the parties to submit the matter to NASD arbitration, but eventually granted New England Financial's motion for a stay of proceedings because New England Financial is not a member of NASD and cannot arbitrate through them. The court ordered Lesjak to arbitrate the matter through another forum besides NASD. Lesjak appealed, and New England Financial was granted a motion to hold the appeal in abeyance. New England Financial explained that NASD, now the Financial Industry Regulatory Authority, agreed to arbitrate the claim and this appeal should not move forward.

Lesjak filed a motion in opposition to holding the appeal in abeyance and sought a request for damages. He contended that because New England Financial acted with both procedural and substantive bad faith he should be awarded damages.

New England Financial missed the date on which to file a brief and was not granted an extension. The company filed its brief a week later and filed a motion to include documents outside of the clerk's record in its appendix.

The core issue of the appeal - whether the trial court properly ordered the matter be arbitrated, but not before NASD - is moot because arbitration is under way, wrote Chief Judge John Baker. However, the appellate court denied New England Financial's motions for extension of time to file its brief and to include documents outside of the clerk's record in its appendix. New England Financial was told it was required to file its brief by Nov. 13, 2007, and no extensions would be granted.

Chief Judge Baker wrote that based on New England Financial's actions during litigation of this case and the appeal, New England Financial clearly engaged in both procedural and substantive bad faith during the appeal, if not the entire litigation. The company fought for months to not arbitrate the claim and claimed arbitration with NASD would be impossible because New England Financial was not an NASD member, but the company then suddenly said arbitration would be accepted.

Lesjak has spent more than $19,000 in attorney fees seeking arbitration. He has established he is entitled to appellate attorney fees and costs pursuant to Appellate Rule 66(E) because of New England's bad faith during this appeal.

The case is remanded to the trial court for a calculation of the amount of attorney fees and costs Lesjak is entitled to and for the trial court to consider if Lesjak is entitled to attorney fees for New England Financial's conduct prior to this appeal.

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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.