COA dismisses attorney's appeal

Jennifer Nelson
December 11, 2009
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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."


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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.