Appeal from the Marion Superior Court, Civil Division, Room No. 7, the Honorable J. V. Boles, Special Judge, Presiding, No. S784-793. No. 4-785-A-212 in the Court of Appeals.
Dickson, J., Givan and Pivarnik, JJ., concur. DeBRULER, J., Dissents. Shepard, C.j., Dissents with opinion.
ON CIVIL PETITION TO TRANSFER
As in two other cases[Footnote 1] which we are deciding contemporaneously, this case likewise presents the issue of appellate attorney fees pursuant to Appellate Rule 15(G) of the Indiana Rules of Procedure. Upon this sole issue, we grant transfer. We decline to address the remaining issues and summarily affirm the Court of Appeals in these matters pursuant to Appellate Rule 11(B)(3).
The Court of Appeals affirmed the trial court's grant of summary judgment and ordered defendants to pay appellee's attorney fees and expenses pursuant to AR 15(G), Lesher v. Baltimore Football Club (1986), Ind. App., 496 N.E.2d 785. The decision appears to have been based upon a finding that appellants' contentions lacked merit. The court stated:
Quite frankly, we are annoyed at having to devote our time and energy to an absolutely meritless claim for un-negotiated interest.
496 N.E.2d at 793. There was no indication that the court found bad faith, frivolity, harassment, vexatiousness, or purpose of delay.
To the contrary, the appeal was expeditiously presented, the record and briefs were concise, and the issues were addressed with plausible argument.
For the reasons more expensively presented in Orr v. Turco Manufacturing Co. (1987), Ind., No. 29S04-8708-CV-769, we hold that the Court of Appeals abused its discretion in awarding punitive appellate attorney fees, which are hereby denied.
In all other respects, the decision of the Court of Appeals is summarily affirmed.
GIVAN and PIVARNIK, JJ., concur. DeBRULER, J., Dissents. SHEPARD, C.J., Dissents with opinion.
SHEPARD, C.J., Dissenting.
In this case, the Court of Appeals was moved to award fees to an appellee because it determined that an appellant filed a meritless appeal. This Court has declared that doing so was an abuse of discretion and vacated the order of fees, apparently concluding ...