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Attorney fees affirmed in trucking dispute; COA declines to bar such awards

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An appellate panel Tuesday affirmed an award of attorney fees under a standard industry agreement and declined an invitation to strip Indiana trial courts of the ability to enter such judgments.

The Indiana Court of Appeals affirmed Lake Superior Judge Calvin D. Hawkins’ award of about $12,000 in legal fees to a trucking company that successfully defended a lawsuit a shipper filed claiming that its trailers weren’t returned in a timely manner and it was therefore entitled to per diem expenses.

In Evergreen Shipping Agency Corp., v. Djuric Trucking, Inc., 45A03-1302-CC-40, the panel rejected Evergreen’s claim that the award of legal fees was barred by the doctrine of res judicata because Djuric failed to win a claim for attorney fees sought under the Indiana frivolous lawsuit statute. Djuric did, however, prevail on the merits in the case brought by Evergreen.

Here, Djuric sued for legal fees provided under the Uniform Intermodal Interchange and Facilities Access Agreement, an industry standard accord that applies to more than 90 percent of shipping arrangements in the United States.

“Djuric’s ability to recover under the UIIA could not have been determined in the prior action,” Judge Nancy Vaidik wrote for the panel. “The UIIA allows the prevailing party to recover reasonable attorney’s fees. In the prior action, the trial court had to determine who the prevailing party would be. Only after Djuric was found to be the prevailing party could it seek attorney’s fees pursuant to the UIIA.

“Djuric could not have reasonably argued that the trial court erred by failing to award it attorney’s fees based on a theory Djuric had not yet asserted. We cannot say that Djuric waived its claim for attorney’s fees under the UIIA,” Vaidik wrote in the unanimous opinion joined by judges John Baker and Ezra Friedlander.

In a concluding footnote, the panel also rejected a sweeping request from the shipping company.

“Evergreen asks this Court to adopt a new rule divesting trial courts of jurisdiction to award attorney’s fees in circumstances like this,” Vaidik wrote. “We decline to do so.”



 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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