Lisa B. Gonzalez v. R. Stanton Evans
15 N.E.3d 628
| Ind. Ct. App. | 2014Background
- Lisa Gonzalez subpoenaed R. Stanton Evans (a non‑party and business partner of Gonzalez’s ex‑husband) for nearly 1,000 pages of business records as part of her motion to modify a divorce property settlement for alleged fraudulent nondisclosure.
- The subpoena to Evans stated under Ind. Trial Rule 34(C)(3) that a non‑party is entitled to payment for damages resulting from responding. Gonzalez requested production within 30 days.
- Evans compiled the documents by mid‑November 2012 (after ~5 hours of work) but delayed production while demanding prepayment of attorney fees/security (initially $2,000; Gonzalez offered $500). Evans never moved to quash or for a protective order.
- Gonzalez filed a motion to compel; the trial court conditionally granted it but required prepayment of $500 to Evans and deferred determination of attorney fees. Evans later filed a verified petition and fee audit seeking ~$8,289.33.
- The trial court held a hearing only on Evans’s fee affidavit (Gonzalez did not cross‑examine or submit an affidavit of her own fees) and awarded Evans $8,289.33. Gonzalez appealed.
Issues
| Issue | Plaintiff's Argument (Gonzalez) | Defendant's Argument (Evans) | Held |
|---|---|---|---|
| Whether trial court properly ordered Gonzalez to pay $8,289.33 in attorney fees to Evans for responding to her non‑party subpoena | Gonzalez argued Evans was not entitled to fees for months of delay and resistance; only limited fees directly related to compliance are recoverable and Evans unreasonably withheld documents after compiling them | Evans argued Trial Rule 34(C)(3) permits recovery of damages (including attorney fees) for reasonable resistance and for attorney work related to responding; he contended his resistance was reasonable absent prepayment | Court held Evans was not entitled to fees for his months‑long resistance after documents were compiled; non‑party may recover fees strictly related to complying and attorney review, but Evans’s award exceeded that; reversed and remanded to calculate fees limited to compliance/document review costs |
| Whether trial court erred by not holding a hearing to decide Gonzalez’s request for attorney fees on her motion to compel | Gonzalez argued Trial Rule 37(A)(4) entitles a moving party to fees when a motion to compel is granted and the court must hold a hearing to determine whether the opponent’s resistance was substantially justified | Evans argued circumstances made fee award unjust or Gonzalez waived any entitlement by failing to present evidence earlier | Court held Gonzalez waived her claim to an award because she never sought a hearing, never submitted a fee affidavit, and did not present evidence at the later hearing; affirmed denial of Gonzalez’s fees |
Key Cases Cited
- International Bus. Mach. Corp. v. ACS Human Servs., LLC, 999 N.E.2d 880 (Ind. Ct. App. 2013) (interpreting Trial Rule 34(C)(3) and holding non‑parties may recover some costs but must prove entitlement; no fee award where resistance was not “reasonable”)
- Lorapex, LLC v. MPI Release Tech., LLC, 964 N.E.2d 806 (Ind. 2012) (restates American Rule on attorney fees and exceptions)
- Penn Cent. Corp. v. Buchanan, 712 N.E.2d 508 (Ind. Ct. App. 1999) (defines “substantially justified” resistance in discovery contexts)
- Drake v. Newman, 557 N.E.2d 1348 (Ind. Ct. App. 1990) (trial court must hold hearing on fee entitlement under Rule 37(A)(4) when motion to compel is granted)
- Chustak v. Northern Indiana Pub. Serv. Co., 288 N.E.2d 149 (Ind. 1972) (discovery rules promote liberal discovery with minimal court involvement)