ILNews

COA dismisses attorney's appeal

Jennifer Nelson
December 11, 2009
Keywords
Back to TopE-mailPrintBookmark and Share

The Indiana Court of Appeals dismissed an attorney's interlocutory appeal of the order he pay attorney's fees as a discovery sanction because the attorney didn't timely file his appeal.

In Warren Johnson v. The Estate of Timothy P. Brazill, Brian J. Zaiger; Judy Hester; and David A. Anderson and Anderson & Associates, No. 29A02-0902-CV-126, attorney David Anderson represented Warren Johnson in his claim against the estate of deceased attorney Timothy P. Brazill. Johnson claimed Brazill hadn't repaid a loan to him, but it was later discovered Johnson owed Brazill money based on a promissory note.

Anderson tried to introduce certain e-mails sent between Brazill and Johnson that he got from one of Brazill's former law partners, but the trial court denied entering them as evidence. Anderson then tried getting the e-mails through a subpoena from Judy Hester, who was the last member of the Smyth Brazill Hester law firm before it split.

Hester then filed a motion to intervene in the action and sought attorney's fees for what she said were Anderson's continued discovery abuses. On Sept. 22, 2008, the trial court granted Hester's motion and ordered Johnson and Anderson to pay her nearly $2,500 in fees. The court also ordered the estate to submit an attorney fees affidavit within 10 days of the order. On Oct. 20, 2008, the trial court denied Anderson's motion to reconsider and ordered him to pay nearly $4,500 in attorney's fees to the estate. On Nov. 7, 2008, the trial court vacated its finding against Johnson, but upheld the ruling against Anderson. The court reaffirmed its findings against Johnson again in a Dec. 30, 2008, clarification.

Anderson filed a notice of appeal Jan. 22, 2009.

The parties didn't raise the timeliness of Anderson's appeal as an issue, but the Court of Appeals found Anderson's Jan. 22 appeal was untimely and dismissed the case. Anderson appealed from the Dec. 30 order, but he should have filed his appeal within 30 days of the Sept. 22 order if he wanted to challenge the award of fees to Hester, ruled the appellate court. With regards to the estate, Anderson should have filed his appeal within 30 days of the Oct. 20 order that dictated the amount of fees to go to the estate.

Instead, Anderson filed motions to reconsider, which the trial court denied, and asked the trial court to clarify its order, which it did Dec. 30. Even though the orders were modified with regards to Johnson and another attorney, the order that Anderson pay attorney's fees to Hester and the estate was constant and should have been appealed prior to Jan. 22, 2009.

"Otherwise, a party ordered to pay money could repeatedly move the court to reconsider or clarify its original order, and if the trial court then modified that order in a way that did not affect the moving party's obligations under the original order, that party could then appeal from the trial court's order denying the motion to reconsider," wrote Judge Paul Mathias. "This could allow a party to potentially delay compliance with the trial court's order, which is precisely what Trial Rule 53.4 is designed to prevent."

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

  3. I always wondered why high fence deer hunting was frowned upon? I guess you need to keep the population steady. If you don't, no one can enjoy hunting! Thanks for the post! Fence

  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

ADVERTISEMENT