Mitchell v. Mitchell

STATON, Judge,

dissenting.

My dissent is limited to the Majority’s reversal regarding the award of attorney fees. The concept of obdurate behavior is to award attorney fees where a party has brought an action which is vexatious and oppressive in the extreme. The Majority has embraced the most common application of this concept by limiting it to a defendant'who has been sued. Here, it is quite’ obvious that the defendant, Flossie, has caused the action to be filed by her incessant devious behavior. If the exception to the American rule, obdurate behavior, is to have any intrinsic meaning, it must be applied to the party who has actually caused the action to be filed. Here, the party entitled to attorney fees is the plaintiff.

The Majority Opinion states: “The trial court also found that Flossie acted willfully, intentionally, and in bad faith in failing to provide the requested items and that Flossie’s behavior was obdurate.” Op. at 1086. The Majority reversed the attorney fee award of the trial court. I would affirm the trial court and this is why:

1. After Pamela’s Father’s death in 1987, the estate was not closed until February 1,1991 because of Flossie’s refusal to share family pictures, videos and home movies. The closure of the estate was only effected when Flossie, a second childless spouse, entered into an agreement to let Pamela copy the sentimental items listed.
2. Almost two and a half years later, June 28, 1993, Flossie had not made any effort to deliver the items listed in the agreement. Pamela was forced by Flossie’s vexatious and oppressive behavior to bring an action to enforce the agreement.
3. It took almost a year after the action was filed to obtain Flossie’s deposition. As Pamela points out in her brief: “These efforts met with strenuous resistance from FLOSSIE, through her attorney, including the filing of a Motion for Sanctions against PAM’s attorney, which motion was ultimately denied. [Record at pp. 106, 207]”. *1091Appellee’s Br. at p. 4. (Emphasis in original).
4. The April 7, 1994 deposition of Flossie produced many of the family picture, videos and the list in Flossie’s handwriting óf a hundred people that she had previously stated did not exist.
5. Too, the trial judge had before him the deposition of Betty Jernigan who stated that Flossie had told her in 1981 that she would “get Pam” when Lester died.

Admittedly, the obdurate conduct exception has always been applied to attorney fees where the plaintiff has brought an oppressive and vexatious action. Northwest Calf Farms, Inc. v. Poirier, 499 N.E.2d 1165, 1169-70, (Ind.Ct.App.1986), trans. denied; Wernke v. Halas, 600 N.E.2d 117, 123-24 (Ind.Ct.App.1992). But, it is not beyond one’s imagination to conceive the plaintiff being oppressed and vexed by the defendant to a point that the plaintiff has no other alternative but to bring an action and incur considerable legal expense. Rare as this circumstance may be, the trial judge clearly saw the need to apply the sanction of obdurate behavior. I would affirm the entire judgment of the trial court.