Evergreen Shipping Agency Corp. v. Djuric Trucking, Inc.
2013 Ind. App. LEXIS 439
| Ind. Ct. App. | 2013Background
- Evergreen owned intermodal freight containers and alleged Djuric failed to return them, seeking >$34,000 in per diem charges.
- Both parties were subject to the Uniform Intermodal Interchange and Facilities Access Agreement (UIIA), which permits recovery of prevailing-party attorney fees under the UIIA but requires written signed addenda for certain charges.
- At summary judgment, Evergreen relied on the UIIA and manager affidavit but produced no separate written addendum or agreement establishing Djuric’s liability for per diem; Djuric submitted an affidavit denying any separate agreement.
- Trial court granted summary judgment for Djuric (finding no agreement establishing per diem liability) and denied Evergreen’s summary judgment.
- Djuric initially sought attorney’s fees under Indiana Code § 34-52-1-1 (frivolous claim statute) and was denied; on appeal that denial was affirmed. Two weeks after appellate certification, Djuric moved for fees under the UIIA as the prevailing party.
- Trial court awarded Djuric ~ $12,000 in attorney’s fees under the UIIA; Evergreen appealed arguing res judicata and waiver.
Issues
| Issue | Plaintiff's Argument (Evergreen) | Defendant's Argument (Djuric) | Held |
|---|---|---|---|
| Whether res judicata bars Djuric’s UIIA-fee claim | Prior final judgment denying fees (and appellate affirmance) precludes any later fee award | The prior proceedings adjudicated different fee theories; UIIA-based fees accrued only after prevailing-party determination and thus were not or could not have been decided earlier | Res judicata does not bar the UIIA fee claim |
| Whether Djuric waived its right to seek UIIA fees by not raising them earlier | Djuric should have sought fees (or moved to correct errors) immediately after summary judgment | A motion to correct errors is not the place to assert a new theory; UIIA fees accrued only after the judgment identifying the prevailing party | No waiver; Djuric did not waive its UIIA fee claim |
| Whether Evergreen was surprised or prejudiced by Djuric’s UIIA fee motion | The timing and late assertion of the UIIA theory surprised and prejudiced Evergreen | The UIIA specifically provided for prevailing-party fees; Evergreen had notice and an opportunity to respond and even got a continuance | No prejudice; fee motion was timely litigated on notice |
| Whether trial court erred in awarding fees under UIIA | Award was foreclosed by earlier denial of fees and appellate decision | UIIA independently authorizes prevailing-party fees, properly invoked after prevailing-party determination | Fee award affirmed |
Key Cases Cited
- Hilliard v. Jacobs, 957 N.E.2d 1043 (Ind. Ct. App.) (discussing res judicata components)
- MicroVote General Corp. v. Ind. Election Comm’n, 924 N.E.2d 184 (Ind. Ct. App.) (res judicata principles)
- Dawson v. Estate of Ott, 796 N.E.2d 1190 (Ind. Ct. App.) (distinguishing claim and issue preclusion)
- Mid-States Gen. & Mech. Contracting Corp. v. Town of Goodland, 811 N.E.2d 425 (Ind. Ct. App.) (issues waived if raised first on appeal)
- Allstate Ins. Co. v. Hammond, 759 N.E.2d 1162 (Ind. Ct. App.) (motion to correct errors is not for asserting new claims)
- Noblesville Redev. Comm’n v. Noblesville Assoc. Ltd. P’ship, 674 N.E.2d 558 (Ind.) (procedural limits on motions to correct errors)