Indiana Business Dispute Lawyers for Commercial Litigation & Appeals

As a prevailing party, am I entitled to an award of attorney’s fees?

Indiana follows the “American Rule” which provides that each side pays its own attorney’s fees, absent a contractual agreement or statute to the contrary. In the context of commercial disputes, it is common for the parties to agree that the prevailing party is entitled to recover its attorney’s fees. However, without this contractual agreement, attorney’s fees are generally not recoverable. In addition, the award of attorney’s fees that are awarded is left to the discretion of the trial court. The court can award an amount it determines is reasonable, even if the amount of attorney’s fees incurred is actually greater. Moreover, courts generally refuse to enforce contractual provisions requiring the losing party to pay a percentage of the judgment awarded as attorney’s fees. Instead, courts require a certain, established criteria to determine the amount of the award.

Can all orders be appealed?

An order from the trial court which resolves all issues as to all parties constitutes a final judgment, which can be appealed as a matter of right. Most other orders are called interlocutory orders. A limited number of interlocutory orders can be appealed as a matter of right, such as those requiring the payment of money, the sale of real property or the grant or refusal to grant the appointment of a receiver. Outside a limited number of interlocutory orders which are appealable as of right, all other interlocutory orders can be appealed only with the permission of both the trial court and the Court of Appeals.

Now that I won my lawsuit, the judgment defendant will pay me . . . right?

A prevailing plaintiff is awarded a judgment, which is a court order requiring the judgment defendant to pay a certain amount. However, the court which issued the judgment will not enforce it for you. Many judgment defendants fail or refuse to pay the judgment. Accordingly, the judgment creditor can either execute against the judgment defendant’s assets or seek to garnish the assets of the judgment defendant which are in the possession of third parties. Additionally, the judgment creditor can force the judgment defendant to testify under oath regarding its available assets in a proceedings supplemental hearing.

What is an appeal and how does the process work?

When the trial court issues a final judgment, the losing party (the appellant) is entitled to seek review of the decision from the Indiana Court of Appeals. The prevailing party (the appellee) is entitled, but not required, to defend the judgment on appeal, though failing to defend the judgment generally increases the likelihood of reversal. The process is commenced by the appellant filing a Notice of Appeal with the Clerk of the Court of Appeals. This Notice must be filed within 30 days from the entry date of the final judgment, or the right to appeal is forfeited, with limited exceptions. Thereafter, the parties file briefs with the Court of Appeals, which will either issue its decision based on the briefs, or hold an oral argument if it believes the argument will assist the decision-making process. The ruling from the Court of Appeals is final unless the Indiana Supreme Court grants further review at the request of the losing party. Although there is no deadline for the Court of Appeals to reach its decision, it generally issues an opinion within four to six months of the appeal commencing.

What is prejudgment attachment?

After judgment is entered, the judgment creditor is allowed to seize and sell certain property belonging to the judgment defendant under a process called execution. Generally, execution is not allowed prior to the plaintiff obtaining its judgment. However, when the defendant is a foreign corporation or nonresident, or when there is evidence establishing the defendant has removed or is about to remove assets which would otherwise be subject to execution outside Indiana, the plaintiff can request an order requiring that the assets be immediately turned over while the lawsuit moves forward.

What is prejudgment garnishment?

Unlike prejudgment attachment which is used to seize property of the defendant in the defendant’s possession, the prejudgment garnishment process is used to seize property of the defendant in the possession of third parties.