LISA B. GONZALEZ, Appellant-Plaintiff,
R. STANTON EVANS, Appellee-Non-Party
[Copyrighted Material Omitted]
APPEAL FROM THE HAMILTON CIRCUIT COURT. The Honorable Paul A. Felix, Judge. Cause No. 29C01-0810-DR-1818.
ATTORNEYS FOR APPELLANT: RONALD J. WAICUKAUSKI, YVONNE BALLESTEROS, Price Waicukauski & Riley, LLC, Indianapolis, Indiana; JUDY M. TYRRELL, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: KEVIN W. BETZ, SANDRA L. BLEVINS, Betz Blevins, Indianapolis, Indiana.
BARNES, Judge. VAIDIK, C.J., and BAKER, J., concur.
Lisa Gonzalez appeals the trial court's order requiring her to pay $8289.33 in attorney fees to R. Stanton Evans and its failure to require Evans to pay any attorney fees to her. We affirm in part and reverse and remand in part.
The issues before us are:
I. whether the trial court properly ordered Gonzalez to pay $8289.33 in attorney fees to Evans in connection with his response to Gonzalez's subpoena; and
II. whether the trial court erred in not holding a hearing onGonzalez's request to be awarded attorney fees in connection with her motion to compel discovery from Evans.
Gonzalez was married to Hector Gonzalez. The two divorced in 2009, after the trial court approved their property settlement agreement and made it part of the dissolution decree. The agreement included representations from Hector stating he did not have, and never had, any interest in certain valuable business entities. Gonzalez claims she later learned that these representations were false and, therefore, Hector had many more assets at his disposal, undervalued the marital estate, and fraudulently induced her acceptance of the property settlement agreement. Gonzalez filed a motion to modify the dissolution decree's marital property distribution based on this new information.
In seeking further information related to Hector's business interests, on September 7, 2012, Gonzalez subpoenaed Evans, Hector's business partner in various endeavors. The subpoena contained seventeen separate requests for production of various documents related to Hector's involvement in thirty-one different business entities. As required by Indiana Trial Rule 34(C)(3) for subpoenas on non-parties, the subpoena informed Evans that he was " entitled to payment for damages resulting from your response" to the subpoena. App. p. 70. The subpoena requested production of the documents within thirty days.
On September 26, 2012, counsel for Evans wrote to Gonzalez's counsel, stating Evans believed " the Subpoena is very broad, intrusive and expansive and exceeds the acceptable bounds of discovery on a non-party." Id. at 73. The letter also stated that Evans would " move for protective order or to quash the Subpoena unless we are able to reach some agreement on the payment of attorneys' fees and costs necessary for Mr. Evans to respond to this overbroad and burdensome Subpoena." Id. Evans never moved for a protective order or sought to quash the subpoena, nor has there ever been any claim that Gonzalez sought privileged material. On
October 7, 2012, Evans obtained, with Gonzalez's consent, an extension of time to respond to the subpoena until October 25, 2012. When that date passed, Evans obtained a second extension of time to respond until November 16, 2012.
That date also passed with no production. Counsel for both parties then began communicating by phone and email regarding production of the documents. By mid-November 2012, however, Evans had already compiled the documents--nearly 1000 pages worth--after spending approximately five hours doing so. Gonzalez claims there was a verbal agreement that the documents would be delivered to a business for copying and scanning by November 16, 2012. Gonzalez agreed to pay the copying costs. However, the documents were not delivered. Emails sent between counsel for Gonzalez and Evans do not mention any demand by Evans to be paid attorney fees before the documents would be produced. Instead, counsel for Evans blamed delays in production upon emergency filings and an oral argument before this court in another case.
On December 5, 2012, counsel for Evans wrote counsel for Gonzalez demanding payment of $1500 in attorney fees and $500 to Evans for his time spent in complying with the subpoena before the documents would be turned over. The letter asserted that " this was made necessary by the over-breadth of the Subpoena." Id. at 95. It also stated that, if no agreement was reached regarding payment of this $2000, Evans would " immediately file a motion for protective order" and seek recovery of all attorney fees without limit; likewise, " If you proceed to file a Motion to Compel, then we will also seek protection from the Court and all fees associated with contesting that Motion."
Gonzalez agreed to pay Evans $500 for his time but refused to pay any attorney fees, and the documents were not delivered. Instead, on January 22, 2013, Gonzalez filed a motion to compel production of the documents, requesting an award of attorney fees along with production of the documents. Evans responded with a request that any granting of the motion to compel be conditioned upon Gonzalez's " prepayment of damages to be proximately incurred by Mr. Evans, including reasonable attorneys' fees incurred in reasonable resistance and in establishing such damages." Id. at 101. Evans did not seek to quash or limit the subpoena. On February 26, 2013, the trial court entered an order " conditionally granting" Gonzaelz's motion to compel and ordering Evans to produce the documents she requested, " within ten (10) days following ...