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. George Grant ripped the mask off of Planned Parenthood in this fantastic read clear back in the 90's. http://www.amazon.com/Grand-Illusions-Legacy-Planned-Parenthood/dp/1581820577 Time has rendered this abortion industry goliath neither kinder nor gentler.

  2. Because one post with all of their names just would not do? https://www.youtube.com/watch?v=EvGJvzwKqg0

  3. Hello Jackie, Please go to 'LILLY BLACK" GRANDPARENTS RIGHTS ADVOCATES NATIONAL DELEGATION of the USA. I have a post there where i will be requesting a meeting with the Indiana Senators. We all know there is power in numbers. Please say you will go or you can private message me. WE MUST NEVER GIVE UP ON OUR GRANDCHILDREN. WE ARE GETTING CLOSER.We have to stop this EMOTIONAL & MENTAL ABUSE. PLEASE JOIN ME IN THIS IMPORTANT FIGHT! THANK YOU JACKIE

  4. Hello KRISTI PAYNE, Please go to 'LILLY BLACK" & send a friend request into the INDIANA-GRANDPARENTS RIGHTS ADVOCATES NATIONAL DELEGATION of the USA.I have a post there i will be requesting a meeting with the Indiana Senators in October. We all know there is power in numbers, PLEASE say you will go!THIS EMOTIONAL & MENTAL ABUSE OF OUR GRANDCHILDREN HAS TO STOP!!!! WE CAN'T GIVE UP NO MATTER HOW MUCH WE ARE BEATEN DOWN. WE ARE GETTING CLOSER!!!!! PLEASE HELP ME BE A VOICE!!! THANK YOU KRISTI PAYNE

  5. Hello Cheryl, Please go to 'LILLY BLACK" & send a friend request into the INDIANA-GRANDPARENTS RIGHTS ADVOCATES NATIONAL DELEGATION of the USA.I have a post there i will be requesting a meeting with the Indiana Senators in October. We all know there is power in numbers, PLEASE say you will go!THIS EMOTIONAL & MENTAL ABUSE OF OUR GRANDCHILDREN HAS TO STOP!!!! WE CAN'T GIVE UP NO MATTER HOW MUCH WE ARE BEATEN DOWN. WE ARE GETTING CLOSER!!!!! THANK YOU CHERYL

ADVERTISEMENT