Johnson v. Estate of Brazill

• Decision Date: 11 December 2009
• Docket Number: No. 29A02-0902-CV-126.,29A02-0902-CV-126.
• Citation: 917 N.E.2d 1235
• Parties: Warren JOHNSON, Claimant/Counterdefendant, v. The ESTATE OF Timothy P. BRAZILL, Deceased, Brian J. Zaiger, Personal Representative, Appellee-Defendant/Counterclaimant, Judy Hester, Appellee-Intervenor, David A. Anderson, and Anderson & Associates, P.C., Appellants-Respondents.
• Court: Indiana Appellate Court

917 N.E.2d 1235

Warren JOHNSON, Claimant/Counterdefendant, v. The ESTATE OF Timothy P. BRAZILL, Deceased, Brian J. Zaiger, Personal Representative, Appellee-Defendant/Counterclaimant Judy Hester, Appellee-Intervenor David A. Anderson, and Anderson & Associates, P.C., Appellants-Respondents.

No. 29A02-0902-CV-126.

Court of Appeals of Indiana.

December 11, 2009.

David A. Anderson, Goodin Abernathy, Indianapolis, IN, Attorney for Appellant.

Jeffrey C. McDermott, Matthew R. Stryzynski, Krieg DeVault LLP, Carmel, IN, Attorneys for Appellee, The Estate of Timothy P. Brazill.

Judy G. Hester, Brazill Hester, P.C., Indianapolis, IN, Appellee pro se.

OPINION

MATHIAS, Judge.

The Hamilton Superior Court ordered attorney David A. Anderson and the law firm of Anderson & Associates, P.C. (collectively "Anderson") to pay attorney fees to the Estate of Timothy P. Brazill ("the Estate") and attorney Judy G. Hester ("Hester"), as a discovery sanction. Anderson now brings this interlocutory appeal and argues that the trial court's award of attorney fees to the Estate was improper and that Hester could not properly be awarded attorney fees because she was acting pro se. Concluding sua sponte that Anderson failed to timely bring this interlocutory appeal, we dismiss.

Facts and Procedural History

Anderson represented Warren Johnson ("Johnson") in his claim against the Estate. The decedent, Timothy P. Brazill ("Brazill") had been Johnson's attorney. Johnson claimed that he had loaned Brazill a total of $235,000. The Estate initially admitted owing Johnson $117,500, but later discovered a promissory note executed on August 21, 1995, which the Estate claimed established that Johnson in fact owed Brazill $275,000. The Estate then filed a counterclaim against Johnson claiming that Johnson owed $157,500 on the balance of the promissory note. To support Johnson's claims, Anderson attempted to introduce into evidence certain emails sent between Brazill and Johnson. Anderson initially obtained copies of the emails at issue from one of Brazill's former law partners, James W. Smyth ("Smyth").¹ The trial court eventually determined that these emails could not be introduced into evidence, and Anderson then attempted to obtain these emails from Hester as the last remaining member of the Smyth Brazill Hester law firm.

When Hester balked at Anderson's initial broad request, he sent her a subpoena for the emails. On March 3, 2008, Hester filed a motion to intervene in the action and to seek attorney fees for what she claimed were Anderson's continued discovery abuses. On March 13, 2008, the trial court granted Hester's motion to intervene and ordered Johnson to respond by March 24, 2008. The trial court's order on this matter was mailed to Anderson but was returned as undeliverable. Regardless, Johnson filed a response to Hester's motion on March 11, 2008. On March 17, 2008, the Estate also filed a motion seeking attorney fees for Anderson's alleged discovery abuses. Johnson filed a response to the Estate's motion on March 21, 2008.

On September 22, 2008, the trial court entered an order granting Hester's motion for attorney fees, concluding:

IT IS THEREFOR ORDERED that [Johnson] and [Anderson] are ordered to pay the attorney fees of [Hester] in the amount of $2,472.50 within 30 days of this order, which order shall operate as a judgment against Johnson and Anderson if the same is not paid in full by the expiration of those 30 days.

Appellant's App. p. 350. Also on September 22, 2008, the trial court granted the Estate's request for fees, but ordered the Estate to "submit to the Court [an] Attorney Fees Affidavit within 10 days of the date of this Order." Id. At 345. The Estate subsequently submitted such an affidavit on October 1, 2008.

On October 10, 2008, Anderson and Johnson² filed a motion to reconsider the award of attorney fees to the Estate. In this motion, Anderson argued that the trial court's award was improper because he was not afforded a hearing on the matter, that the fees awarded were unreasonable, and that Anderson's actions were insufficient to support an award of attorney fees. On October 20, 2008, the trial court entered an order stating in relevant part, "[the] Court ... does now find that the Motion to Reconsider should be and is hereby DENIED and that the prior Order of the Court dated September 22, 2008 should be affirmed. Court does now GRANT attorneys fees and costs in the amount of $4,475[.]" Appellant's App. p. 367.

On October 22, 2008, Anderson and Johnson filed a motion to reconsider the award of attorney fees to Hester, wherein Anderson again argued that the award was improper because he was not afforded a hearing and that his actions were insufficient to support an award of fees. On November 7, 2008, the trial court entered an order stating in relevant part:

"The Court ... does now find that such Motion to Reconsider should be and is hereby DENIED except that the Court does vacate the finding against [Johnson]. The Court in review of the pleadings and the hearings in this cause, finds that the abuse of the discovery process was caused by the actions of the attorney and not by the client. The client, in this factual instance, cannot be held liable for the failure to follow the Trial Rules and proper procedure. ... All items not modified by this Order concerning the Order of September 22, 2008 remain in full force and effect."

Appellant's App. p. 393.

On November 20, 2008, Meunier filed a motion asking that he not be held responsible for any attorney fees to the Estate because he was not responsible for the actions which led to the award of such fees. The trial court granted this motion in an order dated November 25, 2008, which stated, "the October 20, 2008 Order Awarding Attorney Fees in Favor of the Estate hereby reconsiders [sic] said award of attorney fees as to [Meunier] only and modifies said Order by vacating the award of attorney fees against [Meunier]." Appellant's App. p. 399.

As a result, the award of attorney fees remained unchanged as to Anderson. However, Anderson did not pay the attorney fees to either the Estate or Hester, both of whom then sought to obtain such fees through proceedings supplemental. Thereafter, on December 30, 2008, the trial court issued an order addressing several issues then pending before the court, including the issues of attorney fees. In this regard, the trial court's order stated:

5. That concerning RULING ON HESTER'S VERIFIED MOTION FOR ATTORNEY'S FEES [entered on] September 22, 2008, which was modified by the JUDGE'S ENTRY OF NOVEMBER 7, 2008, [Hester] advises that attorney fees in the amount of $2,472.50 have not been paid as ordered. Discussions are had and [Anderson] contends that such Ruling is not a final judgment and therefore did not have to be paid. Counsel orally moves for the Court to clarify such Ruling. [The] Court having reviewed such Ruling, now FINDS and ORDERS that [Anderson] shall immediately pay such attorney fees to [Hester] in the amount of $2,472.50. Judgment is hereby entered for [Hester] and against [Anderson] in the amount of $2,472.50.

6. That concerning ORDER AWARDING ATTORNEYS' FEES IN FAVOR OF THE ESTATE filed October 20, 2008, the Estate advises that attorney fees in the amount of $4,475.00 have not been paid as ordered. The Court entered on November 25, 2008[an] ORDER GRANTING MOTION TO RECONSIDER AWARD OF ATTORNEY FEES AGAINST [MEUNIER] ONLY. [Anderson] contends that such Order is not a final judgment and therefore did not have to be paid. Counsel orally moves for the Court to clarify such Order. [The] Court having reviewed such Order, along with related pleadings, does now modify the ORDER AWARDING ATTORNEYS' FEES IN FAVOR OF THE ESTATE filed on October 20, 2008 to vacate the finding against [Johnson] in that the actions were not of [Johnson] but that of [Anderson]. The Court does now FIND and ORDER that [Anderson] shall immediately pay such attorney fees to the Estate in the amount of $4,475.00. Judgment is hereby entered for the Estate and against [Anderson] in the amount of $4,475.00.

Appellant's App. pp. 34-35. Anderson then filed a notice of appeal on January 22, 2009.

Discussion and Decision

Although neither party presents the timeliness of Anderson's appeal as an issue, the timeliness of an appeal is a jurisdictional matter which we should raise sua sponte if the parties do not. Young v. Estate of Sweeney, 808 N.E.2d 1217, 1219 (Ind.Ct.App.2004). Further, jurisdiction is a question of law which we review de novo. Id. After careful review of the procedural history of this case, we conclude that Anderson's current appeal is untimely, and we therefore dismiss this case.

We first note that an order requiring one party to pay attorney fees to another party as a discovery sanction is appealable as of right because it forces the party to pay money. State v. Kuespert, 425 N.E.2d 229, 232 (Ind.Ct.App.1981), trans. denied. Here, Anderson claims to appeal from the trial court's order of December 30, 2008. However, as set forth above, this order was not the first order of the trial court directing Anderson to pay attorney fees.

The first order regarding the payment of attorney fees was entered by the court on September 22, 2008. This order clearly directed Anderson to pay Hester attorney fees in the amount of $2,472.50. And this order was an interlocutory order appealable as of right pursuant to Indiana Appellate Rule 14(A)(1).³ Anderson did not appeal the September 22 order within thirty days. Interlocutory appeals as of right must be filed within thirty days of the entry of the interlocutory order. See App. R. 14(A). It is therefore clear that Anderson did not timely file an interlocutory appeal from the trial court's September 22 order.

Of course, Anderson did file a motion to reconsider the September 22 order. However, Indiana Trial Rule 53.4(A) plainly states that a motion to reconsider "shall not ... extend the...