ILNews

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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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