Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Popovich v. Indiana Dep't of State Revenue

Tax Court of Indiana

March 7, 2016

NICK POPOVICH, Petitioner,
v.
INDIANA DEPARTMENT OF STATE REVENUE, Respondent

          ATTORNEY FOR PETITIONER: JAMES K. GILDAY, GILDAY & ASSOCIATES, P.C., Indianapolis, IN.

         ATTORNEYS FOR RESPONDENT: GREGORY F. ZOELLER, INDIANA ATTORNEY GENERAL; JOHN P. LOWREY, DEPUTY ATTORNEY GENERAL, Indianapolis, IN.

         ORDER ON RESPONDENT'S REQUEST FOR EXPENSES PURSUANT TO INDIANA TRIAL RULE 37(A)(4)

         Martha Blood Wentworth, Judge.

         The Indiana Department of State Revenue argues that it is entitled to expenses in the amount of $5,175.25 for successfully defending against Nick Popovich's second motion to compel. See generally Popovich v. Indiana Dep't of State Revenue (Popovich II), 7 N.E.3d 419 (Ind.Tax Ct. 2014), reh'g denied. The Court agrees.

         BACKGROUND[1]

         In December of 2011, Popovich subpoenaed the Department's designated Trial Rule 30(B)(6) witness, directing him to bring several pages of original documentation to a deposition. Less than 24 hours before the deposition, the Department emailed Popovich to explain that it would bring only copies of the requested documentation to the deposition because the original documents could not be removed from its offices. That same afternoon, Popovich stated that he would file another motion to compel if the Department did not bring at least 27-pages of specified original documentation to the deposition. When the Department's witness appeared at the deposition without any original documents, Popovich promptly adjourned the deposition. Approximately two weeks later, in January of 2012, Popovich filed his second motion to compel the production of original documents.

         On April 24, 2012, after conducting a hearing, the Court denied Popovich's second motion to compel because Popovich did not document his attempts to resolve the matter informally as required by Indiana Trial Rule 26(F). See Popovich II, 7 N.E.3d at 422-23. Popovich subsequently filed a motion to reconsider, arguing that the Department's obdurate behavior throughout the discovery process had made complying with Trial Rule 26(F) futile. On June 2, 2014, the Court denied that motion. See Popovich v. Indiana Dep't of State Revenue (Popovich III), No. 49T10-1010-TA-00053, 13 N.E.3d 954, at *2 (Ind.Tax Ct. 2014).

         On October 22, 2014, the Court conducted a hearing on the Department's request for expenses as required by Indiana Trial Rule 37(A)(4). Additional facts will be supplied as necessary.

         LAW

         Indiana Trial Rule 37(A)(4) concerns the awarding of expenses for successfully defending against discovery enforcement motions. The Rule, in relevant part, states:

If [a] motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

Ind. Trial Rule 37(A)(4) (emphasis added). Thus, when a discovery enforcement motion, like Popovich's second motion to compel, is denied, a presumption arises that the Court will also order the reimbursement of the prevailing party's reasonable expenses. See Penn Cent. Corp. v. Buchanan, 712 N.E.2d 508, 511 (Ind.Ct.App. 1999), trans. denied; Georgetown Steel Corp. v. Chaffee, 519 N.E.2d 574, 576 (Ind.Ct.App. 1988), trans. denied. This award of expenses is mandatory, subject only to a showing that the losing party's conduct was substantially justified or that other circumstances make an award of expenses unjust. Penn Cent., 712 N.E.2d at 511. " [A] person is 'substantially justified' in seeking to compel or in resisting discovery, for purposes of avoiding the sanctions provided by [Trial Rule 37(A)(4)], if reasonable persons could conclude that a genuine issue existed as to whether a person was bound to comply with the requested discovery." Id. at 513.

         ANALYSIS AND DISCUSSION

         The issue before the Court is whether the Department is entitled to be reimbursed for expenses incurred in successfully defending against Popovich's second motion to compel. The resolution of this issue depends on the answers to the following questions: 1) whether Popovich was substantially justified in filing the second motion to compel; and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.