Thomas Dusek and Berkshire Implement Co Inc. v. Berkshire Liquidating Company f/k/a Berkshire Implement Co., Inc. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 08 2019, 9:57 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
Abraham Murphy Michael H. Michmerhuizen
Abraham Murphy Attorney at Law, Barrett McNagny LLP
LLC Fort Wayne, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas Dusek and Berkshire April 8, 2019
Implement Co Inc, Court of Appeals Case No.
Appellants-Defendants, 18A-PL-1681
Appeal from the
vs. Cass Superior Court
The Honorable
Berkshire Liquidating Company Rick Maughmer, Judge
f/k/a Berkshire Implement Co., Trial Court Cause No.
Inc., 09D02-1612-PL-42
Appellee-Plaintiff.
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1681 | April 8, 2019 Page 1 of 21
[1] Thomas Dusek and Berkshire Implement Co Inc (collectively “Dusek”) 1 appeal
the trial court’s ruling that found Dusek committed civil deception against
Berkshire Liquidating Company (“BLC”), f/k/a Berkshire Implement Co.,
Inc., and that ordered Dusek to pay damages and attorney fees, raising the
following issues:
I. Whether the trial court erred in finding that Dusek
knowingly and intentionally made false or misleading
statements with the intent to obtain BLC’s property and in
awarding the damages based on that finding;
II. Whether the trial court abused its discretion in awarding
$46,724.58 in attorney fees to BLC; and
III. Whether the trial court erred in denying Dusek’s motion
for continuance.2
[2] BLC raises a cross-appeal issue, contending that this appeal should be dismissed
because Dusek is in contempt.
[3] We affirm.
1
On occasion, we will identify the Appellants separately as clarity requires. In those situations, we will refer
to Appellant Dusek as “Dusek” and Appellant “Berkshire Implement Co Inc” as “Berkshire-2015,” the
designation the Appellants use in their brief.
2
Dusek also challenges the trial court’s conclusion that he committed fraud and slander of title. Because we
can determine the validity of the trial court’s judgment, including damages and attorney fees, by reviewing
only Dusek’s challenge to the trial court’s conclusion that he committed civil deception under Indiana Code
section 35-43-5-3, we do not address the issues related to fraud and slander of title.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1681 | April 8, 2019 Page 2 of 21
Facts and Procedural History
[4] In 1974, Clyde Berkshire (“Clyde” or “Clyde Berkshire”) formed a Cass County
Corporation called Berkshire Implement Company Inc., which later became
known as “Berkshire Liquidating Company,” which as we mentioned before,
“BLC” for purposes of this appeal. Appellants’ App. Vol. 2 at 106. BLC owned a
piece of real estate in Royal Center, Indiana. Id. Clyde ran BLC until 2015,
when he decided to wind up the business and sell the real estate at an auction
scheduled for August 10-11, 2015. Id. at 108. A few weeks before the auction,
Dusek incorporated Berkshire Implement Company Inc, prompting Clyde to
change the name of his corporation to Berkshire Liquidating Company. Id. at
94.
[5] Dusek showed up at the auction and tried to stop it. Id. at 55-56. He told the
representatives of BLC that BLC had been dissolved and that he owned the
rights to the name “Berkshire-Implement Co Inc.,” i.e., Berkshire-2015. Id.
The BLC representatives were shocked by this information. Id. at 56. The
auction proceeded, and Douglas Fox and Matthew Fox (“the Foxes”)
submitted the successful bid on the real estate with the parties agreeing in
principle to the sale. Id. at 110, 171. No purchase agreement was signed that
day. Id. at 129.
[6] On May 12, 2015, Dusek, as a representative of Berkshire-2015, filed an
Affidavit of Interest in Real Estate (“the Affidavit”),” in which he claimed that
Berkshire-2015 “has an interest, right and claim that affects the title” of the real
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estate. Appellee’s App. Vol. 2 at 20. The Affidavit also alleged that the Indiana
Secretary of State had “permanently revoked” BLC’s Certificate of Existence,
thereby prohibiting BLC from transacting any business in Indiana and that
under Indiana law a “dissolved corporation does not have the power to execute
the conveyance of real estate” and that any such conveyance would be “void
and [have] no effect.” Id. at 21. Brian Morrill, President of Cass County Title,
was later asked to provide title insurance for the real estate, but he declined
because the Affidavit created a cloud on the title. Appellants’ App. Vol. 2 at 99.
The Affidavit said nothing about Dusek’s desire to protect the name “Berkshire
Implement Co Inc”. Appellee’s App. Vol. 2 at 20-22.
[7] On November 24, 2015, about seven months after the auction, BLC and the
Foxes entered into a “Contract for Conditional Sale of Real Estate.” Ex. Vol. 3
at 25-35. The contract required the Foxes to pay monthly installments until
insurable title could be provided to the Foxes. Id. at 26. The contract also
provided that if BLC is unable to obtain title insurance, the Foxes may cancel
the contract and receive a refund of their $5,000.00 down payment. Id. at 33.
[8] On December 1, 2016, BLC filed a complaint to quiet title and for declaratory
relief and damages, alleging that Dusek, inter alia, committed civil deception,
fraud, and slander of title. Appellants’ App. Vol. 2 at 17-24. Each claim rested on
the Affidavit, in which Dusek had alleged an interest in the real estate. Id. at
21-22.
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[9] On February 9, 2017, BLC filed a motion for partial summary judgment,
requesting summary judgment only on the issue of whether Dusek had any
right, title, or interest in the real estate. Appellee’s App. Vol. 2 at 2. On April 20,
2017, Dusek, in his personal capacity, filed a Stipulation of Disclaimer of
Interest (“the Stipulation”), claiming that when he filed the Affidavit, he was
acting only in his capacity as president of Berkshire-2015, not in his personal
capacity. Appellants’ App. Vol. 2 at 59-60. However, the Stipulation did not
disclaim Berkshire-2105’s purported interest in the real estate. Id.
[10] On April 24, 2017, four days after Dusek filed the Stipulation, the trial court
granted BLC’s motion for partial summary judgment. Appellee’s App. Vol. 2 at
100. The trial court found, in part, that Dusek and Berkshire-2015 “do not
dispute any legal argument made by [BLC], nor do [Dusek and Berkshire-2015]
cite any legal authority or argument to support their contention that Berkshire-
2015 acquired rights or an interest in the Real Estate.” Id. at 104. Thus, the
trial court found that the title to the real estate should be quieted in favor of
BLC.3 Id.
[11] As discovery proceeded, BLC sought to depose Dusek. The deposition was
initially set for June 29, 2017, but BLC twice rescheduled the deposition at
Dusek’s request, with the parties finally settling on October 12, 2017 as the date
3
Even though the summary judgment ruling intended to quiet title in BLC’s favor, BLC still cannot deliver
clear title to the Foxes because relatives of Clyde Berkshire filed a lis pendens action against the real estate in
an action related to the estate of Clyde Berkshire. Appellants’ App. Vol. 2 at 101; Appellee’s Br. at 29 n.3.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1681 | April 8, 2019 Page 5 of 21
for the deposition. Id. at 108. On October 11, 2017, at 3:48 p.m., less than
twenty-four hours before the deposition, Dusek’s lawyer emailed BLC‘s lawyer,
stating that Dusek asked her to withdraw “effective immediately” and that she
was “not authorized to submit any discovery responses or represent [Dusek] in
a deposition.” Id. at 192. The next day, Dusek failed to appear for the
deposition in contravention of his subpoena. Id. at 110, 134.
[12] Because Dusek did not appear at the deposition, the trial court issued a rule to
show cause order on October 18, 2017, set a hearing for November 9, 2017, and
ordered Dusek to appear in person. Appellants’ App. Vol. 2 at 8. On November
8, 2017, new counsel filed a limited appearance for Dusek. Id. at 9. New
counsel appeared telephonically for Dusek for the show cause hearing, but
Dusek failed to appear. Id. Thus, the trial court issued a writ of body
attachment for Dusek and set a cash bond of $10,000.00. Id.4
[13] On February 23, 2018, the trial court set a pre-trial conference for March 8,
2018 and encouraged Dusek’s lawyer to file an unlimited appearance. Appellee’s
App. Vol. 2 at 197. If counsel did not file an unlimited appearance, the trial
court ordered Dusek and his lawyer to appear at a pretrial conference, or,
alternatively, Dusek’s lawyer was to certify that he advised Dusek that he
would be bound by any dates set at the pretrial conference. Id. The trial court
4
On November 14, 2017, the trial court entered judgment in favor of BLC and against Dusek for costs and
expenses in the amount of $6,383.78 related to Dusek’s the failure to appear for the deposition. Appellee’s
App. Vol. 2 at 195.
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also stated that the limited appearance of counsel would expire on May 1, 2018.
Appellants’ App. Vol. 2 at 64. Dusek did not appear at the pretrial conference,
and a bench trial was set for June 20, 2018. Id. On May 2, 2018, the trial court
noted that Dusek’s attorney was no longer Dusek’s attorney of record as of May
1, 2018, pursuant to the trial court’s February 23, 2018 order, and that Dusek
would be proceeding pro se. Id. at 9; Appellee’s App. Vol. 2 at 197.
[14] On June 7, 2018, thirteen days before the scheduled trial date, Andrew David
(“David”) appeared as Dusek and BLC-2015’s new counsel. Id. at 12. The
same day, David filed a motion to continue the bench trial that had been set for
June 20, 2018. Id.5 In support, David stated that he had just been retained, that
he needed time to ascertain the facts and consult with his clients, and that he
had a previously scheduled vacation for the date of the bench trial. Id. at 72.
The motion did not mention any medical conditions that Dusek may have been
suffering or travel restrictions created by his illness. Id.6 On June 11, 2018, the
trial court denied the motion to continue. Id. at 12. That same week, BLC
gave Dusek’s new counsel documentation to support BLC’s attorney fee
request. Id. at 147.
5 On June 4, 2018, three days before Dusek’s new counsel appeared and filed the motion for continuance,
Dusek filed an unverified pro se Notice Regarding Trial Order, which advised the trial court that he was not
prepared for trial and was seeking new counsel. Appellants’ App. Vol. 2 at 66-68. Dusek claimed he was
residing in Europe at the time and that he had a progressive health condition that made it difficult to travel,
that his health condition prevented him from researching and retaining counsel, and that he should have
better information about his health prognosis in September 2018. Id.
6
On June 11, 2018, counsel for Dusek filed a reply to BLC’s opposition to the motion to continue.
Appellants’ App. Vol. 2 at 77. The reply, which was not verified, did mention Dusek’s health problems. Id.
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[15] The bench trial occurred on June 20, 2018. Dusek’s attorney appeared, but
Dusek did not. Id. at 92. BLC’s counsel again provided Dusek documentation
supporting its attorney fee request. Id. at 147. Because it was unclear whether
this documentation was the same documentation that BLC had provided Dusek
the week before, the trial court asked Dusek’s counsel if he wanted to review
the documents; Dusek’s counsel said he did and that ten minutes would be
sufficient. Id.
[16] On June 22, 2018, the trial court issued its final order, which stated, in part:
This matter came before the court 20 June 2018 for hearing the
balance of an action to quiet title and damages. The court had
granted partial summary judgment in this matter 24 April 2017,
quieting title to the subject real estate in favor of [BLC]. . . . [T]he
court finds as follows:
....
5. [Dusek and Berkshire-2015] did knowingly and intentionally
make a false or misleading statement with intent to obtain . . .
[BLC’s] real estate.
6. Indiana Code [section] 34-24-3-1 relating to treble damages
and attorney fees is applicable to this case.
7. As a result of [Dusek and Berkshire-2015’s] actions, BLC is
awarded thirty-two thousand one hundred seventy-two dollars
($32,172.00) in damages against [Dusek and Berkshire-2015],
joint and several. (bank fees $363.00, property tax $1,734.88, LP
gas $1,177. 00, CPA fees $7,450.00, all multiplied by three).
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8. As a result of [Dusek and Berkshire-2015’s] actions, BLC is
awarded forty-six thousand seven hundred twenty-four dollars
and fifty-eight cents ($46,724.58) in attorney fees against the
defendants, joint and several. (MS $983.00, JCM $10,560.00, BM
$35,181.58).
....
Therefore the judgment entered this date in favor of [BLC] and
against [Dusek and Berkshire-2015] joint and several is
$78,896.58 plus costs and statutory interest at the rate of eight
percent.
Id. at 15-16. Dusek now appeals.
Discussion and Decision7
[17] Because neither party requested special findings nor did the trial court make
findings sua sponte, Dusek appeals from a general judgment. We will affirm a
general judgment if it can be sustained by any legal theory consistent with the
evidence. Conseco Fin. Servicing Corp. v. Friendly Vill. of Indian Oaks, 774 N.E.2d
87, 92 (Ind. Ct. App. 2002). We neither reweigh the evidence nor judge the
credibility of witnesses but consider only the evidence most favorable to the
judgment together with all reasonable inferences drawn therefrom. Id. Further,
7
We find that Dusek has waived his appeal of the trial court’s treble damage award for lack of cogent
argument. See Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016). His argument consists of one
sentence: “The trial court’s errors were further compounded when the trial court ordered treble damages,
which are not supported by the evidence.” Appellants’ Br. at 11. Dusek challenges the trial court’s purported
award of punitive damages to BLC. Although BLC’s complaint requested both treble damages and punitive
damages, the trial court awarded only treble damages. Appellants’ App. Vol. 2 at 15, 2-23. Thus, there is
nothing for us to review regarding punitive damages.
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we presume the trial court correctly followed the law. Id. We will affirm a
general judgment unless the uncontradicted evidence leads to a conclusion
opposite that reached by the trial court. Id.
I. BLC’S Cross Appeal
[18] Before we address Dusek’s claims, we first address BLC’s cross appeal, which
asks us to dismiss this appeal because Dusek is in “continued contempt.”
Appellee’s Br. at 19-21. In support, BLC observes that Dusek failed to appear at
a deposition, even though BLC had twice rescheduled the deposition at Dusek’s
request and that Dusek had been subpoenaed for the deposition. BLC also cites
Dusek’s failure to appear in court to show cause why he should not be held in
contempt for failing to appear at the deposition. Because Dusek failed to
appear, the trial court issued a writ of body attachment. Id. at 9; Appellee’s App.
Vol. 2 at 194.8 BLC contends that by these actions, Dusek has willfully defied
the mandates of the trial court and should not now ask us to compel the trial
court to “do his bidding when he himself has repeatedly flouted the authority of
the [t]rial [c]ourt.” Appellee’s Br. at 21.
[19] In support, BLC cites Michael v. Michael, 253 N.E.2d 261 (Ind. 1969), where the
trial court transferred custody from the father to the mother. After father
initiated his appeal of the change-of-custody order, he removed the child from
8
As of the date that BLC filed its brief, the writ of body attachment was still active. Appellee’s Br. at 5, 18, 20-
21.
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the state, and, soon after, the trial court found him in contempt. Id. at 262. The
Indiana Supreme Court dismissed the father’s appeal, not only because he
defied the trial court’s order but also, because by absenting himself from the
jurisdiction, he rendered any judgment by the Supreme Court ineffectual:
Here we have the appellant in the defiant position of removing
himself and the child from the state in violation of a court order
and still requesting appellate review from this Court. We can
hardly be expected to undertake review while appellant reserves
to himself the power to place himself beyond the law and render
wholly ineffectual any adverse determination we might make.
Id. at 262.
[20] We deny BLC’s request to dismiss Dusek’s appeal. We prefer to resolve cases
on substantive, not procedural grounds. In re D.J. v. Ind. Dep’t of Child Servs., 68
N.E.3d 574, 580 (Ind. 2017). Because Dusek’s contemptuous acts, though
troublesome, do not impinge on the substantive issues of this case, we address
Dusek’s claims on the merits, to the extent that he has properly preserved and
argued those issues on appeal.
II. Deception – Intent to Obtain the Real Estate
[21] Dusek argues that the trial court erred in finding that he committed civil
deception under Indiana Code section 35-43-5-3 (“the Deception Statute”)
because even if the evidence shows his statements in the Affidavit were
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knowingly or intentionally false,9 the evidence does not show that he made the
statement with the “intent to obtain the real estate.” Appellants’ Br. at 16.
[22] The Deception Statute, provides in part: “(a) A person who: . . . (2) knowingly
or intentionally makes a false or misleading written statement with intent to
obtain property . . . commits deception, a Class A misdemeanor.” Ind. Code §
35-43-5-3(a)(2) (emphasis added). The Deception Statute allows treble damages
for a person suffering pecuniary loss. Heartland Res., Inc. v. Bedel, 903 N.E.2d
1004, 1008 n.2 (Ind. Ct. App. 2009). A criminal conviction under the
Deception Statute is not required to recover in a civil action. Id. A plaintiff
need only prove the elements of the underlying crime by a preponderance of the
evidence. Id. Intent may be proven by circumstantial evidence. McCaskill v.
State, 3 N.E.3d 1047, 1050 (Ind. Ct. App. 2014).
[23] In arguing there was no evidence that he intended to obtain the real estate,
Dusek observes that he did not file a complaint to foreclose, quiet title, or gain
possession of the real estate. He also claims there is no evidence that he
contacted BLC to obtain the real estate, money, or anything of value from BLC.
Dusek characterizes his filing of the affidavit as “misguided” but denies that he
“intended to do harm to [BLC].” Appellants’ Br. at 17.
[24] Two cases guide our analysis. First, in American Heritage Banco, Inc. v.
McNaughton, 879 N.E.2d 1110, 1118 (Ind. Ct. App. 2008), we found that a
9
Notably absent from Dusek’s brief is any argument that his statements in the Affidavit were not false.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1681 | April 8, 2019 Page 12 of 21
lender made legally sufficient allegations to let its civil deception claim proceed,
where the lender had claimed that borrowers made false statements in loan
applications in order to obtain loans from the financial institution. We found
that such actions would establish intent to obtain property. Id. at 1118.
[25] Second, Heckler & Koch, Inc. v. German Sport Guns GmbH, 976 F. Supp. 2d 1020
(S.D. Ind. 2013), also addressed what constituted intent to obtain property
under the Deception Statute. In that case, the District Court found that a
complaint made a legally sufficient allegation about using false written
statements to obtain property, where the complaint alleged that a corporate
president had lied in a written settlement agreement by stating that his company
still owned the intellectual property rights to a certain gun, when in fact it did
not. Id. at 1034. The District Court ruled that this false statement constituted a
statement with intent to obtain property, specifically part or all of the
$300,000.00 the corporate president had procured during the negotiations that
led to the written settlement agreement. Id. at 1035. In allowing the lawsuit to
proceed, the District Court rejected the corporate president’s argument that
there was no evidence of his intent to obtain property because the $300,000.00
would not go to him but to his employer:
“The [corporate president] cite[s] no authority for the proposition
that a corporate officer cannot be guilty of deception under this
statute when the pecuniary benefits accrue to the company he
heads rather than himself, and it stands to reason that [the
corporate president] benefited at least indirectly from [the] . . .
$300,000[.00] settlement windfall.”
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Id.
[26] Here, the Affidavit establishes that Dusek intended to obtain the real estate.
The Affidavit recounts that, at the auction, one of Dusek’s representatives made
a false statement to the auctioneers, telling them that the Indiana Secretary of
State had “permanently revoked” and “administratively dissolved” BLC’s
Certificate of Existence/Authorization, thus preventing BLC from conducting
any business in Indiana, and if BLC sold the real estate, any such sale would be
“void and has no effect.” Appellee’s App. Vol. 2 at 21. Dusek made the same
allegations to the representatives of BLC. Appellants’ App. Vol. 2 at 52-53. The
Affidavit further evinces Dusek’s intent to obtain the real estate as it made false
statements by stating that Dusek had an interest, right, and claim that affects
the title of the real estate. Appellee’s App. Vol. 2 at 21. Further underscoring
Dusek’s intent to obtain the real estate, and not a desire to simply protect the
corporate name “Berkshire Implement Co., Inc.,” is that the Affidavit said
nothing about protecting the corporate name but instead focused solely on
Dusek’s rights to “enforce [his] interest, rights and claims against the title of the
Real Estate.” Id. at 22. Thus, the trial court justifiably inferred that Dusek
intended to obtain the real estate. See McCaskill, 3 N.E.3d at 1050.
[27] Dusek’s Stipulation does not persuade us to the contrary. The Stipulation
disclaimed only Dusek’s personal interest in the real estate; it did not disclaim
Berkshire-2015’s interest in the real estate. Appellants’ App. Vol. 2 at 59-60.
Further, as sole officer and employee of Berkshire-2015, it stands to reason that
Dusek would still benefit, at least indirectly, from the claim on the real estate,
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even after he filed the Stipulation. Id. at 68. We liken Dusek’s position as a
stakeholder to that of the corporate president in Heckler and Koch¸ who claimed
there was no evidence of intent to obtain property because the $300,000.00 he
negotiated in the settlement agreement inured to his employer, not himself
personally. The District Court’s rejection of this argument bears repeating as it
fits the circumstances here and thus undercuts Dusek’s argument that the
Stipulation shows that he did not intend to obtain the real estate:
The [corporate president] cite[s] no authority for the proposition
that a corporate officer cannot be guilty of deception under this
statute when the pecuniary benefits accrue to the company he
heads rather than himself, and it stands to reason that [the
corporate president] benefited at least indirectly from [the] . . .
$300,000[.00] settlement windfall.
Heckler & Koch, 976 F. Supp. 2d at 1035.
[28] This analysis is especially fitting here given Dusek’s total control of Berkshire-
2015. He was the sole officer and employee of Berkshire-2015. Appellants’ App.
Vol. 2 at 68. While it may have been a matter of speculation about how much
the corporate president in Heckler & Koch might have benefited from the
$300,000.00 he negotiated in settlement talks for his employer, it is much less
speculative that Dusek would benefit personally from the Affidavit’s claim that
he held an interest in the real estate, even after he filed the Stipulation. Thus, it
was reasonable for the trial court to conclude that Dusek made false written
statements with the intent to obtain the real estate.
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[29] Finally, Dusek is correct that he did not file a complaint to foreclose his interest
in the real estate or contact BLC to obtain the real estate or anything of value
from BLC. We reject this argument as an impermissible request to reweigh the
evidence. See Conseco Fin. Servicing Corp., 774 N.E.2d at 92. Therefore, the
evidence sufficiently established that Dusek intended to obtain the real estate
and, thus, that he committed civil deception under Indiana Code section 35-43-
5-3.
III. Attorney Fees
[30] Dusek contends the trial court abused its discretion in awarding $46,724.58 in
attorney fees to BLC. He faults the trial court for failing to make findings,
which he claims are required by Fortner v. Farm-Valley Applewood Apartments, 898
N.E.2d 393 (Ind. Ct. App. 2008) and In re Inlow, 735 N.E.2d 240 (Ind. Ct. App.
2000). He claims the trial court was required to find whether the fees were
reasonable under the criteria for reasonable fees found in Indiana Professional
Rule of Conduct 1.5(a). Dusek also contends that some of the attorney fees
assessed actually arose in a case involving the estate of Clyde Berkshire, in
which BLC’s law firm had also appeared. Dusek further alleges that the
affidavit for attorney fees submitted by BLC’s lawyer failed to provide the hours
worked.
[31] The award or denial of attorney's fees lies within the sound discretion of the
trial court and, absent an affirmative showing of error or abuse of discretion, we
must affirm the trial court. Malachowski v. Bank One, Indianapolis, N.A., 682
N.E.2d 530, 533 (Ind. 1997); Woude v. First Midwest Bank, 45 N.E.3d 847, 851-
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52 (Ind. Ct. App. 2015). We review both the decision to award attorney fees as
well as the amount of the fee, which must be supported by the evidence. City of
Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000, 1013 (Ind. Ct. App. 2011),
trans. Denied. A trial court shall award only those attorney fees that are
reasonable. Woude, 45 N.E.3d at 852. The Indiana Rules of Professional
Conduct provide guidance as to the factors to consider in assessing the
reasonableness of attorney fees. In re Order for Mandate of Funds, 873 N.E.2d
1043, 1049 (Ind. 2007); see also Woude, 45 N.E.3d at 852.
[32] Dusek has waived the issue of his attorney fees because he makes only general
claims about the award of attorney fees. He does not specify which fees are
inappropriate and does not explain why they are inappropriate. He has thus
failed to make a cogent argument and has waived this claim. See Basic v.
Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016); see also New v. Estate of New,
938 N.E.2d 758, 763 (Ind. Ct. App. 2010) (“We will not conduct research to
remedy deficiencies in the presentation of the case before this court.”). We will
not speculate about Dusek’s specific grounds for relief from the trial court’s
attorney fee award.
[33] Waiver notwithstanding, the trial court did not abuse its discretion in awarding
$46,724.58 in attorney fees to BLC. Dusek cites no authority for the
proposition that a trial court must make findings to support its attorney fee
award if neither party has requested findings. The cases that Dusek cites are
distinguishable. In Fortner, we reversed and remanded for a calculation of
attorney fees because there was no evidence regarding the hours worked or the
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hourly rate. 898 N.E.2d at 400. In Inlow, the parties requested findings
pursuant to Indiana Trial Rule 52. 735 N.E.2d at 246. Moreover, the trial
court in Inlow may or may not have used a multiplier based upon the
complexity of the case. Id. at 257. We held that where the parties requested
findings and where the case was complex, the trial court’s order did not provide
enough information to explain how it calculated attorney fees. Id. Here,
neither party requested findings, nor did the trial court use a multiplier is
assessing fees.
[34] Moreover, at the bench trial, the trial court considered the alleged deficiencies
in BLC’s proposed fees that Dusek alleges here, including his claims that some
of BLC’s fees actually arose from a different case involving the estate of Clyde
Berkshire, and that the affidavit for attorney fees submitted by BLC’s lawyer
failed to provide the hours worked. Dusek fails to acknowledge this, and his
challenge of the attorney fee award is not well taken. His failure to
acknowledge this evidence violates Indiana Appellate Rule of Procedure
46(A)(6)(b), which requires a party to present facts in accord with the
appropriate standard of review. Dusek was free, of course, to argue that despite
this evidence, the trial court’s attorney fee award was an abuse of discretion.
However, we find no abuse of discretion in the trial court’s disposition of the
attorney fee issue, and we affirm the trial court’s attorney fee award.
IV. Continuance
[35] Dusek alleges that the trial court abused its discretion in denying his motion for
continuance, which he filed thirteen days before trial, because he had just
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retained new counsel, who needed time to prepare for trial, including time to
receive and review documents that BLC contended would support its attorney
fee request. Appellants’ App. Vol. 2 at 72. New counsel also requested a
continuance because he had previously scheduled to be on vacation on June 20,
2018, the date of the bench trial. Id. Dusek also argues that he was prejudiced
by the denial of his motion for continuance because poor health prevented him
from attending the bench trial.
[36] We review a trial court’s decision to grant or deny a motion to continue for an
abuse of discretion. Powers v. Blunck, 109 N.E.3d 1053, 1055 (Ind. Ct. App.
2018). We may find an abuse of discretion when the moving party has shown
good cause for granting the motion yet the trial court has still denied the
request. Id. “However, no abuse of discretion will be found when the moving
party has not demonstrated that he or she was prejudiced by the denial, and the
withdrawal of an attorney does not automatically entitle a party to a
continuance.” Troyer v. Troyer, 867 N.E.2d 216, 219 (Ind. Ct. App. 2007)
(internal citations omitted). Whether good cause exists is a fact-specific inquiry
that requires us to review the circumstances when the motion was filed and the
reasons offered to support the motion. Id. “We also consider whether the
record demonstrates dilatory tactics on the part of the movant designed to delay
coming to trial.” F.M. v. N.B., 979 N.E.2d 1036, 1041 (Ind. Ct. App. 2012).
[37] Here, the trial court did not abuse its discretion in denying Dusek’s motion for
continuance. First, Dusek filed the motion thirteen days before trial, and the
trial court denied it eleven days before trial, giving Dusek’s new attorney more
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than one week to prepare for trial. It would have been reasonable for the trial
court to conclude that this was sufficient time to prepare for trial. See Sheron v.
State, 553 N.E.2d 1200, 1201 (Ind. 1990) (trial court did not abuse its discretion
in denying defendant’s motion for continuance to give counsel one week to
prepare for trial).
[38] Second, the trial court did not abuse its discretion in denying the motion for
continuance because it could have reasonably concluded that Dusek’s actions
during the litigation were dilatory tactics designed to forestall the trial. See
F.M., 979 N.E.2d at 1041. Dusek twice asked BLC to reschedule Dusek’s
deposition. The day before the deposition, Dusek told his attorney to stop all
discovery and to withdraw from the case immediately. Appellee’s App. Vol. 2 at
108. Despite BLC’s accommodations, Dusek defied a subpoena and did not
appear at the deposition. Id. at 110, 134. Dusek also engaged in dilatory tactics
by failing to appear at the rule to show cause hearing and at a pre-trial
conference. Appellants’ App. Vol. 2 at 9. This behavior gave the trial court good
reason to deny Dusek’s motion for continuance on grounds that Dusek’s
actions were designed to delay the trial.
[39] Finally, the denial of the motion to continue was not an abuse of discretion
because Dusek has failed to demonstrate prejudice. He presents no evidence or
argument to explain how he was prejudiced by not being able to attend the
bench trial or how his attorney’s preparation for trial was prejudiced, other than
his claim that the denial of the continuance request hampered his attorney’s
ability to prepare for the attorney fee issue. As to the attorney fee issue, Dusek
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makes a facially plausible argument, but he still fails to show prejudice.
Though it appears that BLC was slow to respond to Dusek’s request for
documentation about its attorney fees, BLC did provide such documentation
the week before the trial and provided documentation again at trial. Appellants’
App. Vol. 2 at 147. When it was not clear whether the documents regarding fees
produced at trial were identical to the documents provided the week before, the
trial court recessed the trial to give Dusek’s counsel time to review the records.
Once the trial recommenced, Dusek’s counsel thoroughly cross-examined
BLC’s lawyer on his attorney fee affidavit and supporting documentation.
Thus, Dusek has failed to show that the denial of his motion for continuance
prejudiced his attorney’s ability to challenge BLC’s proposed attorney fee
award. Accordingly, the trial court did not abuse its discretion in denying
Dusek’s motion for continuance.
[40] Affirmed.
Riley, J., and Robb, J., concur.
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