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Tuesday, May 16, 2006
Ind. Decisions - Court of Appeals issues one today
In Gary M. Potter v. Richard John Houston, a 15-page opinion, Judge Friedlander writes:
Gary Potter brings this appeal stemming from a series of actions he filed regarding an easement granted in favor of Richard Houston and Houston’s predecessors. Potter raises one issue: Is “timbering” an agricultural use of land? Houston raises one issue on appeal: He requests appellate attorney’s fees based upon Potter’s alleged frivolous appeal that is “a part of a pattern of abusive filings made on behalf of [Potter] constituting bad faith.” We affirm the judgment, and we remand the cause for an award of attorney’s fees to Houston. ***Potter’s appellate arguments and arguments made in his motion to strike a portion of Houston’s brief are illogical and puerile. Potter has steadfastly ignored unfavorable factual determinations and rulings. The course of the proceedings, including numerous attacks on orders and judgments that can be fairly characterized as collateral, is difficult to sort out. One overarching theme is clear: Potter’s motions and arguments ignore the import of the trial court’s orders and are calculated to cause great expenditure of time and money by Houston in attempting to enjoy the use of the easement. In so doing, Potter has caused a great outlay of resources by Houston, his counsel, multiple trial courts, and this court on review. For all these reasons, we find Potter’s appeal to be frivolous and without merit. See Montgomery v. Trisler, 814 N.E.2d 682 (Ind. Ct. App. 2004). Enough is enough.
Potter’s conduct comes at a cost. He has committed both procedural and substantive bad faith. Accordingly, the cause is remanded for a determination of appellate attorney’s fees to be awarded to Houston. Judgment affirmed, and the cause is remanded for calculation of appellate attorney’s fees to Houston.
Posted by Marcia Oddi on May 16, 2006 09:21 AM
Posted to Ind. App.Ct. Decisions