Paul Gillock and Kathy Gillock v. City of New Castle, Indiana
999 N.E.2d 1043
| Ind. Ct. App. | 2013Background
- Paul and Kathy Gillock sued the City of New Castle alleging negligent design/maintenance of storm drainage that damaged their property; complaint filed July 13, 2012.
- The City served interrogatories and document requests August 30, 2012; Gillocks did not respond.
- The City moved to compel on March 18, 2013; the trial court ordered responses within ten days or sanctions.
- The Gillocks continued to take no discovery action; the City moved to dismiss under T.R. 41(E) and 37(B).
- On the day of the dismissal hearing (May 24, 2013), the Gillocks moved to dismiss with prejudice; the court granted the dismissal.
- The City then sought attorney’s fees under Ind. Code § 34-13-3-21; the trial court awarded $2,144.05. The Gillocks appealed; the City sought appellate fees which the court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff’s suit warranted attorney’s fees under I.C. § 34-13-3-21 (frivolous/unreasonable/groundless or bad faith) | Complaint pled negligence and was filed on statute-of-limitations deadline; dismissal was to avoid further costs after investigation | Gillocks ignored discovery and a court order for nearly a year, so the claim was unreasonable/groundless and prosecuted in bad faith | Affirmed: trial court implicitly found claim unreasonable/groundless and prosecuted in bad faith given the Gillocks’ complete failure to act; attorney’s fees proper |
| Whether appellate attorney’s fees should be awarded under App. R. 66(E) | Appeal contests the fee award; not in bad faith | City argues appeal is meritless and seeks fees for appeal | Denied: appeal was not utterly devoid of plausibility; appellate fees not warranted |
Key Cases Cited
- Smyth v. Hester, 901 N.E.2d 25 (Ind. Ct. App. 2009) (articulates the American Rule and exception framework for awarding attorney’s fees)
- R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453 (Ind. 2012) (treats a trial court order granting fees without findings as an implicit legal conclusion tied to the prevailing party’s petition)
- Wolfe v. Eagle Ridge Holding Co., 869 N.E.2d 521 (Ind. Ct. App. 2007) (defines frivolous claim standards)
- Wyatt v. Wheeler, 936 N.E.2d 232 (Ind. Ct. App. 2010) (defines unreasonable claim standard)
- Buschman v. ADS Corp., 782 N.E.2d 423 (Ind. Ct. App. 2003) (defines groundless claim standard)
- Kahn v. Cundiff, 543 N.E.2d 627 (Ind. 1989) (discusses counsel’s duty to investigate and promptly dismiss meritless claims)
- Poulard v. Laporte Cnty. Election Bd., 922 N.E.2d 734 (Ind. Ct. App. 2010) (standard for awarding appellate fees under App. R. 66(E): extreme restraint; fees only when appeal is utterly devoid of plausibility)