Larry W. Hollerbach and Jerri A. Hollerbach v. Kerri English and Steven English (mem. dec.)
82A01-1609-PL-2289
| Ind. Ct. App. | Mar 15, 2017Background
- Steven and Kerri English sued Larry W. Hollerbach Jr. and Jerri Hollerbach alleging damage to the paved portion of a private lane from heavy equipment use.
- Hollerbachs denied the claim, counterclaimed for costs and attorney’s fees under Ind. Code § 34-52-1-1, and later sent a letter asserting the suit was frivolous.
- Hollerbachs served discovery; Englishes’ responses were incomplete, unsigned, and produced inaccessible documents.
- Hollerbachs moved to compel discovery; the trial court granted the motion, ordered completion of discovery, but did not award fees or schedule a hearing.
- Hollerbachs moved for summary judgment asserting the Englishes’ claim was time-barred and requesting attorney’s fees; the trial court granted summary judgment in part (on statute of limitations) but denied the request for attorney’s fees.
- Hollerbachs appealed, arguing the trial court erred by not holding hearings on (1) entitlement to attorney’s fees under Ind. Code § 34-52-1-1 and (2) Rule 37(A)(4) expenses following the motion to compel.
Issues
| Issue | Plaintiff's Argument (Englishes) | Defendant's Argument (Hollerbachs) | Held |
|---|---|---|---|
| Whether trial court erred by not holding a separate hearing on Hollerbachs’ request for attorney’s fees under Ind. Code § 34-52-1-1 | Implicitly defended that no separate hearing was required; opposed award | Hollerbachs: statute and their summary judgment filing entitled them to a hearing on attorney’s fees (entitlement and/or amount) | Court: No error — statute does not require a separate hearing; fees were litigated as part of summary judgment and court ruled on the request when it denied fees |
| Whether trial court erred by not holding a hearing under Ind. Trial Rule 37(A)(4) after granting motion to compel discovery | Englishes: did not request a hearing or challenge the absence | Hollerbachs: Rule 37(A)(4) requires a hearing after a granted motion to compel to determine expenses | Court: No error — party seeking a hearing must request it; purpose of hearing benefits the losing party to show substantial justification; no hearing requested, and Hollerbachs did not appeal denial of fees |
Key Cases Cited
- R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453 (Ind. 2012) (post-judgment fee petitions are commonly entertained)
- Gonzalez v. Evans, 15 N.E.3d 628 (Ind. Ct. App. 2014) (party waives fee claim by failing to request hearing or submit affidavits)
- Huber v. Montgomery Cnty. Sheriff, 940 N.E.2d 1182 (Ind. Ct. App. 2010) (trial court must provide hearing before awarding fees on discovery sanction)
- Drake v. Newman, 557 N.E.2d 1348 (Ind. Ct. App. 1990) (hearing required to determine whether noncompliance was substantially justified)
- Alexin, LLC v. Olympic Metals, LLC, 53 N.E.3d 1184 (Ind. Ct. App. 2016) (paper-record summary judgment may allow de novo review of legal issues)
- Wolfe v. Eagle Ridge Holding Co., LLC, 869 N.E.2d 521 (Ind. Ct. App. 2007) (review framework: facts for clear error, legal conclusions de novo, fee award for abuse of discretion)
- Piatek v. Beale, 994 N.E.2d 1140 (Ind. Ct. App. 2013) (issues not properly stated may be forfeited on appeal)