The American Judicial System is generally based on the premise that each party pays his or her own attorneys fees unless there is a statute or contract that otherwise rules-in fact, this practice is known as the American Rule.
However, there can be instances in lower courts where one party is able to recover attorney fees from the other. For example, in family law, if one parent has denied the other parenting time for no proper reason, it is possible for the denied parent to request and possibly receive attorney fees.
The thought process behind this practice is that had it not been for the one parent denying the other parenting time, the denied parent would not have had to go to court and advance the fees for litigation over an issue caused unilaterally by the other parent.
Therefore, there are several exceptions to the American Rule that would allow parties to recover attorney fees. However, in the Court of Appeals, it is quite difficult to recover attorney fees.
The public policy behind this decision is that it might cause potential appellants to not appeal for fear that if they lose (again-after they have already lost in the trial court), they will be financially responsible for both their own attorney fees and the attorney fees of the prevailing party.
It is not impossible to recover attorney fees on the appellate level, however. In a 2010 case involving probate of a family will, two brothers, one an attorney outside of Indiana, filed an appeal to the probate court’s dismissal of their motion.1
The Court found that the brothers had waived several of their arguments in the lower court, and lacked the ability to appeal those issues. Further, most issues that were appropriate for appeal were not properly constructed or supported.
The Court found that there were several aggressive claims with no support and the brothers did not cite the record of evidence from the probate court. The Court held the brothers were not in compliance with the appellate rules.
Based on this non-compliance, the Court found that the brothers had engaged in procedural bad faith in the Indiana Court of Appeals in bringing forward their appeal inappropriately. The Court remanded to the probate court to determine appropriate attorneys fees for the estate from this appeal and held that attorneys fees should be assessed against the brothers.
The payment of attorneys fees by the opposing party is fairly uncommon in trial court and very uncommon in the Court of Appeals. However, moving forward on an appeal in bad faith can be a basis for same.
As always, be knowledgeable and discuss proper arguments with your attorney. One may not appreciate a trial court’s ruling, but an appeal may be improper if not made in good faith and executed following the rules and regulations of the Court of Appeals.
Dixon & Moseley, P.C. practices law throughout the state of Indiana. This blog post was written by Bryan L. Ciyou, Esq. and Jessica Keyes.
