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Order that law firm pay attorney fees reversed

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The Indiana Court of Appeals reversed today an order awarding attorneys fees based on the actions of an Indianapolis law firm in a dispute involving the dissolution of another firm, finding the record didn't provide any insight into why the trial court granted the award.

In James W. Smyth v. Judy G. Hester and the Estate of Timothy P. Brazill; Plews Shadley Racher & Braun, as intervenor, No. 29A02-0803-CV-237, Plews Shadley Racher & Braun appealed the trial court order awarding attorney fees to Judy Hester and the Estate of Timothy P. Brazill. Hester, Brazill, and James Smyth practiced law together under the partnership Smyth Brazill Hester until Smyth advised the other two partners their partnership was over. A month later, Brazill died and Smyth and Hester were unable to agree as to how to end the partnership.

Smyth retained Plews as counsel to represent him in his complaint against Hester and Brazill's estate seeking damages, an accounting, and the appointment of receiver over SBH based upon alleged breach of fiduciary duties by Hester and Brazill. The estate also alleged breach of fiduciary duty and conversion against Smyth and requested an accounting and declaratory judgment. Hester counterclaimed against Smyth alleging breach of fiduciary duty, self-dealing, and conversion, and also requested for accounting.

The estate and Hester filed a motion for attorney fees and costs against Plews and Smyth because they believed Smyth and the firm were litigating a frivolous, unreasonable, and groundless claim in bad faith. The trial court found their actions in litigating the matters illustrated "their frivolous, unreasonable, and bad faith conduct in this case."

The Court of Appeals agreed in general with Plews' argument on appeal that the trial court order contained no finding of fact to support the judgment for attorney fees. None of the findings of fact contain a specific reference to a problematic litigation action and none of the conclusions of law reflect the legal authority and standard for an attorney fee award, wrote Judge Carr Darden.

"We acknowledge that the record may include some questionable litigation tactics that might support the trial court's exercise of its discretion to award attorney fees," the judge wrote. "However, our review in that regard is impaired by the fact that the order appealed does not provide us with any insight as to the trial court's reason for the award of attorney fees in this case, i.e., what the trial court found to be frivolous, unreasonable, and bad faith conduct. Accordingly, we remand to the trial court for further consideration and explanation of its judgment in that regard."

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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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