In Smith v. Trilogy Health Services, Cause No. 67A05-1006-PL-644, a memorandum decision uncitable as authority under App. R. 65(D), the Indiana Court of Appeals today demonstrated what can happen when an appellee does not file an appellate brief. Needless to say, the appellant won the appeal.
In this case, a discovery dispute arose when a plaintiff did not provide discovery responses in a timely manner. Defense counsel spoke with plaintiff’s counsel regarding that delay. After that phone call, plaintiff’s counsel believed that the parties had reached an agreement that the discovery responses would be due on February 25, 2010. However, he received a fax from defense counsel indicating that Trilogy intended to file a motion to compel discovery by February 25, 2010, and would seek sanctions and the denial of Smith’s right to object to production and waiver of claims of privilege. That motion was eventually filed and the Court awarded the defendant $1,000 in attorney’s fees as a sanction.
The plaintiff appealed and the defendant failed to file an appellate brief. When reversing the award of sanctions, the Court described the phone call in question as follows:
The defendant would likely have disagreed with this characterization of that conversation. However, the Court explained why it was characterizing the content of that conversation in a footnote.
Given the rest of the Court’s discussion, I am not convinced that this fact played a critical role in the Court’s analysis. However, it could in a different case. While parties should always consider whether the cost of filing an appellee’s brief is justified, they should understand the ramifications of not filing such a brief.
Lesson:
- An appellate court may consider the facts in the appellant’s statements of facts as true, if the appellee does not file a brief.
