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Price v. Charles Brown Charitable Remainder Unitrust Trust

Court of Appeals of Indiana

March 18, 2015

David E. Price, Price & Associates, LLC, and Price & Collins, LLP, Appellants-Defendants,
v.
Charles Brown Charitable Remainder Unitrust Trust, Charles Brown, and Charlotte Brown, Appellees-Plaintiffs

Page 1169

Appeal from the Spencer Circuit Court. The Honorable Lucy Goffinet, Special Judge. Cause No. 74C01-0905-TR-18.

ATTORNEYS FOR APPELLANTS: Jeremy B. Morris, Danny E. Glass, Fine & Hatfield, P.C., Evansville, Indiana.

ATTORNEY FOR APPELLEES: Kevin R. Patmore, Patmore Law Office, Santa Claus, Indiana.

Sharpnack, Senior Judge. Baker, J., and Riley, J., concur.

OPINION

Page 1170

Sharpnack, Senior Judge

Statement of the Case

[¶ 1] In this interlocutory appeal, David E. Price, Price & Associates, LLC, and Price & Collins, LLP (collectively, Price), seek review of the trial court's denial of their motion for summary judgment. We affirm and remand.

Issue

[¶ 2] Price raises one issue, which we restate as: whether Price is entitled to judgment as a matter of law.[1]

Facts and Procedural History

[¶ 3] Charles Brown hired Price, a lawyer, to assist him in creating a trust. Price's firm drafted a trust agreement. Brown executed the agreement on March 9, 1995, creating the " Charles Brown Charitable Remainder Unitrust Trust" (the Trust). Appellants' App. p. 28. Brown's brother was the first trustee, but he was replaced by Brown's daughter. On January 1, 2000, Brown named Price as trustee of the Trust.

[¶ 4] In 2006, the United States Department of Justice (DOJ) initiated a criminal case against Brown in the United States District Court for the Southern District of Indiana. In 2007, the DOJ amended the indictment to add charges against Price. The DOJ alleged that Brown and Price conspired to defraud the Internal Revenue Service, violated the prudent investor rule in making Trust investments, engaged in self-dealing from the Trust, distributed funds from the Trust contrary to statute,

Page 1171

and diverted Trust funds for personal use. The DOJ further alleged that Brown and Price filed false tax returns in an attempt to underreport income.

[¶ 5] On March 7, 2008, Brown and Price, through their attorneys, executed a Joint Defense Agreement (JDA) with an effective date of September 19, 2007. The stated purpose of the JDA was to allow Brown and Price to bolster their defenses against the criminal charges by sharing " information which is privileged and/or confidential in nature" " without waiver of any applicable privilege or other protection against disclosure." Id. at 152. The JDA further provided that Brown and Price believed:

[T]he law permits those who are pursuing a common interest to share and exchange information in a common effort to prepare for litigation in which they are parties, and to enhance their respective counsels' ability to provide informed legal advice, without thereby waiving any privilege or confidentiality with respect to such information.

Id. at 152-53.

[¶ 6] Brown and Price agreed to " share and exchange documents, factual information, oral statements, mental impressions, expert reports, correspondence, memoranda, summaries or reports of interviews with prospective witnesses, investigative reports, deposition summaries, deposition preparation materials and drafts of pleadings or other litigation documents and other materials, in whatever form ('Joint Defense Materials')." Id. at 153. Further, " the exchange pursuant to this Agreement of Joint Defense Materials will not waive any applicable privilege or protection from disclosure. The joint ...


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