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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. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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