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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT