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08/24/87 LEWIS MAGGIO v. DR. M. R. LEE

Filed: August 24, 1987.

LEWIS MAGGIO, SR., ADMINISTRATOR OF THE ESTATE OF KATHLEEN MAGGIO, DECEASED; APPELLANT (PLAINTIFF BELOW),
v.
DR. M. R. LEE, APPELLEE (DEFENDANT BELOW)



APPEAL FROM THE JASPER CIRCUIT COURT, The Honorable E. Duane Daugherty, Judge, Cause No. C-474-83.

Staton, J., Garrard, P.j., Concurs. Sullivan, J., Concurs with separate opinion.

Author: Staton

STATON, J.

Lewis Maggio, Sr., as Administrator of the Estate of Kathleen Maggio, moved the trial court for a continuance of his wrongful death action against M. R. Lee, M.D. The trial court granted the continuance, but it entered an order imposing sanctions against Maggio in the amount of $3,000 "for the use and benefit of Defendant's Attorney," and directing Maggio to pay any additional attorney's fees incurred by Lee, not including the trial, at a rate of $65.00 per hour. Maggio appeals from this interlocutory order, pursuant to Ind. Rules of Procedure, Appellate Rule 4(B)(1). He raises three issues, which we consolidate and restate as follows:

I. Whether Trial Rule 53.5 provides for and allows the awarding of attorney's fees?

II. Whether T.R. 53 provides for and allows sanctions?

Because we reverse, we need discuss only issue I.

I.

Attorney's Fees

The trial court ordered Maggio to pay $3,000 for the use and benefit of Lee's attorney and further ordered him to pay any additional attorney's fees at the rate of $65.00 per hour. Maggio argues that these awards were improper, because T.R. 53.5 does not provide for the award of attorney's fees.

Indiana follows the "American Rule" regarding attorney's fees, so that each party is bound to pay its own attorney's fees unless there is specific statutory authority or contractual agreement to the contrary. Trotcky v. Van Sickle (1949), 227 Ind. 441, 445, 85 N.E.2d 638, 640. Maggio argues that T.R. 53.5 does not provide the specific statutory authority which the American Rule requires. We agree.

Trial Rule 53.5 reads in part as follows:

Upon motion, trial may be postponed or continued in the discretion of the court and shall be allowed upon a showing of good cause established by affidavit or other evidence. The court may award such costs as will reimburse the other ...


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