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Lawyer entitled to $1.05 million default judgment

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The Indiana Court of Appeals affirmed a default judgment in favor of an Indiana attorney because an Illinois attorney demonstrated "contumacious disregard" for a trial court's orders.

In David J. Fitzpatrick d/b/a David J. Fitzpatrick and Associates v. Kenneth J. Allen and Associates, P.C., No. 64A03-0811-CV-545, Illinois attorney David Fitzpatrick challenged the trial court's decision to enter default judgment in Indiana attorney Kenneth J. Allen's favor for $1.35 million in attorney fees. Allen, Fitzpatrick and attorney Mitchell Iseberg entered into a fee-sharing contract in which Fitzpatrick would handle a couple's products liability claim in an Illinois court and Allen would handle the medical malpractice suit filed by the couple. The agreement stipulated the attorneys would be paid 33 1/3 percent of any judgments or settlements in the couple's favor - Allen would receive 50 percent and Fitzpatrick and Iseberg would split the remaining 50 percent.

At some point during the litigation, Fitzpatrick proposed a different fee-sharing agreement and Allen rejected it. The next day, the couple terminated Allen's representation regarding the products liability case but retained him for the medical malpractice suit. The products liability case settled, but Fitzpatrick refused to disclose the amount. In August 2004, the trial court ordered disclosure of the settlement amount; Fitzpatrick refused and eventually the trial court entered a default judgment in favor of Allen. By this time, Allen had withdrawn from representing the couple in the medical malpractice suit.

Fitzpatrick eventually disclosed the products liability suit settled for $8.1 million, and the trial court entered judgment in favor of Allen, basing the award on 50 percent of the $2.7 million, which is 33 1/3 percent of the settlement amount.

Fitzpatrick argued that Indiana law prefers to give parties their day in court, but Indiana Trial Rule 37 doesn't require a trial court to impose a lesser sanction before dismissing an action or entering default judgment when a disobedient party has displayed contumacious disregard for a court's orders, wrote Judge Nancy Vaidik. Fitzpatrick had plenty of opportunities to disclose the settlement amount, but did not, despite the 2004 order that the information was discoverable.

The trial court was also correct in ordering a judgment in favor of Allen based on the fee agreement contract and not quantum meruit damages. Fitzpatrick's argument that the Indiana Rules of Professional Conduct 1.5(e) prohibits Allen from collecting more than quantum meruit damages is misplaced, the appellate court ruled.

"The flaw in Fitzpatrick's argument is that he focuses upon Allen's level of participation in the products liability suit alone," the judge wrote.

Instead of examining what Allen did under the products liability case, one should examine the broad agreement encompassing both suits. Allen performed the work required of him under the parties' contract.

The trial court did err in awarding Allen $1.35 million by failing to take into account $600,000 that had been awarded to an attorney who worked on the couple's case and was dismissed after the couple hired Fitzpatrick. The Court of Appeals remanded for the trial court to enter a new judgment ordering Fitzpatrick to pay $1.05 million in damages, plus costs and interest, to Allen.

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  1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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