Cox v. Ubik

• Court: Indiana Appellate Court
• Writing for the Court: HOFFMAN; STATON; GARRARD; GARRARD
• Citation: Cox v. Ubik, 424 N.E.2d 127 (Ind. App. 1981)
• Decision Date: 30 July 1981
• Docket Number: No. 3-980A292,3-980A292
• Parties: Olliphene COX, Appellant (Plaintiff Below), v. Michael UBIK and Joseph Winters, Appellees (Defendants Below).

Page 127

424 N.E.2d 127

Olliphene COX, Appellant (Plaintiff Below), v. Michael UBIK and Joseph Winters, Appellees (Defendants Below).

No. 3-980A292.

Court of Appeals of Indiana, Third District.

July 30, 1981.

James J. Nagy, Eichhorn, Eichhorn & Link, Hammond, for appellant (plaintiff below).

Timothy F. Kelly, Randall J. Nye, Robert F. Parker, Beckman, Kelly & Smith, Hammond, for appellee Michael Ubik (defendant below).

HOFFMAN, Presiding Judge.

Plaintiff-appellant, Olliphene Cox (Cox) appeals a trial court award of costs to defendant-appellee Michael Ubik of $3,500 including attorney fees and deposition expenses. Cox contends that the award of costs was contrary to law. This Court will consider the following issues:

(1) whether the trial court erred in awarding attorney fees to the defendant;

(2) whether there was sufficient evidence to support the trial court finding of bad faith;

(3) whether the trial court erred in awarding deposition expenses to the defendant; and

(4) whether the procedure for awarding costs in Ind. Rules of Procedure, Trial Rule 54(D) was correctly followed.

This appeal arose from a negligence suit filed by plaintiff Cox against defendants Michael Ubik and Joseph Winters as a result of injuries sustained in an auto accident which occurred on the morning of February 11, 1976. At trial, Cox claimed that Ubik's car collided with the rear of her car and thereby caused her collision with a retaining wall and with Winters' auto. A jury verdict was returned in favor of the defendants and judgment was entered accordingly on December 7, 1979. On March 25, 1980 defendant Ubik filed a motion to assess costs with the trial court alleging bad faith on the part of Cox in failing to dismiss Ubik from the negligence action and requesting that Cox be taxed with Ubik's attorney fees and deposition expenses. Cox did not reply to the motion and on April 28, 1980 the trial court entered the following order:

"Comes now the Court and now grants defendant Michael Ubik's Motion to Assess to Costs which motion was heretofore filed March 25, 1980. Plaintiff has made no reply in writing to said motion. The Court, in hearing the testimony of Plaintiff at the Jury Trial concludes that plaintiff is guilty of bad faith in not dismissing Michael Ubik from this action prior to trial and that because of such behaviour was necessary for defendant to incur expenses and attorney's fees. Court hereby taxes costs of attorney's fees and deposition costs against plaintiff Olliphene Cox in the amount of $3,500.00."

Cox timely filed her motion to correct errors and, on the denial thereof, perfected this appeal.

Cox's first argument is that the trial court erred in awarding attorney fees to Ubik in this action. She maintains that there is no statutory authority for ordering a losing party in a negligence suit to pay the counsel fees of an opposing party. Moreover, Cox correctly observes that there is no agreement between the parties here regarding attorney fees. Therefore, Cox argues that the trial court could not award attorney fees as part of the costs.

Costs may be awarded as of course to a prevailing party in a negligence suit pursuant to Ind. Rules of Procedure, Trial Rule 54(D). ¹ The term "costs" in a statute, however, has been held not to include attorney fees. State v. Holder et al.; Rentchler et al. (1973), 260 Ind. 336, 295 N.E.2d 799. This is consistent with the general rule in Indiana that each party must pay his own counsel fees in the absence of a statute or agreement providing otherwise. Trotcky v. Van Sickle (1949), 227 Ind. 441, 85 N.E.2d 638.

This general rule has been subjected to several exceptions in recent years. In St. Joseph College et al. v. Morrison, Inc. (1973), 158 Ind.App. 272, 302 N.E.2d 865, this Court held that, in the absence of a statute or agreement regarding attorney fees, a trial court may use its inherent equitable powers to allow such fees where a party has acted in bad faith (the "obdurate behaviour" exception); where a court wants to insure that the beneficiaries of an action are the ones to share the expenses of that action (the "common fund" exception); and where the court compensates a private party who has brought suit to effectuate a strong legislative policy (the "private attorney general" exception). Id. at 279-280, 302 N.E.2d at 870.

See also, Umbreit v. Chester B. Stem, Inc. (1978), Ind.App., 373 N.E.2d 1116; City of Indianapolis, etc. v. Central R. Co. (1977), Ind.App., 369 N.E.2d 1109.

Since neither the "common fund" exception or the "private attorney general" exception apply to the case at hand, only the "obdurate behaviour" exception is at issue here.

In St. Joseph, supra, this Court stated that, in order to constitute bad faith or obdurate behaviour for the purpose of awarding attorney fees, conduct must be "vexatious and oppressive in the extreme." Id. 158 Ind.App. at 280, 302 N.E.2d at 871. The reasons for such a strict standard are twofold. First, allowance of attorney fees, absent statute or agreement, is an exception to a longstanding rule in Indiana that litigants must pay their own counsel fees. See, Trotcky v. Van Sickle, supra. Second, the nature of an attorney fee award under the bad faith exception is punitive, designed to reimburse a prevailing party who has been dragged into baseless litigation and thereby subjected to great expense. See, Hall v. Cole (1973) 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702. Where, however, a trial court finds that this strict standard has been met, it is clear that Indiana law permits the trial judge to exercise his discretion in awarding attorney fees to the prevailing party. In the case at hand, the trial judge specifically found that Cox acted in bad faith by failing to dismiss defendant Ubik. Cox argues that this finding is not supported by sufficient evidence.

Initially, Cox maintains that deposition evidence used at trial by the defendants' attorneys in an attempt to impeach Cox's testimony could not be considered by the trial judge in making his bad faith determination. Cox bases her argument on the fact that the deposition was not published and therefore not introduced into evidence. Although there is nothing to indicate that the trial judge relied on the deposition, this issue will not be addressed here. Even if the deposition is excluded, there was sufficient evidence from which the trial court could conclude that the plaintiff acted in bad faith.

This Court has held that, under Ind. Rules of Procedure, Trial Rule 52(A), a trial court can make findings on its own motion and such findings bind the appellate court as though they were requested. Kizer v. Davis (1977), Ind.App., 369 N.E.2d 439. Moreover, where a trial court makes findings of fact and conclusions of law, this Court will set aside that judgment only if it is clearly erroneous. Lawrence v. Ball State University Bd. (1980), Ind.App., 400 N.E.2d 179. The trial court judgment is presumed to be correct and the appellant has the burden of showing error. On review, this Court grants great deference to the trial court's ability to judge the credibility of the witnesses and to weigh the evidence. As such, this Court will not rejudge the credibility of the witnesses or reweigh the evidence but will view that evidence in a light most favorable to the trial court's decision including any reasonable inferences drawn from that evidence. State v. King (1980), Ind.App., 413 N.E.2d 1016. Consequently, the trial court decision will be accepted if it is supported by evidence of probative value. Matter of Leckrone (1980), Ind.App., 413 N.E.2d 977.

There was sufficient evidence in this case from which the trial court could find that the plaintiff acted in bad faith by failing to dismiss defendant Ubik from the suit. Cox admitted that she could not remember ever telling anyone prior to the trial that Ubik had hit her car. Cox also stated that she had changed her story of the accident with regard to Ubik's involvement during the nearly three-year time span since the accident, claiming that her memory had improved during that time. In addition, Ubik introduced testimony by the police officer at the scene of the accident that Cox never mentioned being hit by Ubik; that Cox stated that the accident was caused when she hit a patch of ice, skidded and hit the retaining wall; and that there was no evidence to indicate that a third party, Ubik, was involved in the accident. In fact, the record discloses that the plaintiff's own testimony is the only evidence indicating that Ubik hit the plaintiff's car...