FOR PUBLICATION



ATTORNEY FOR APPELLANTS:                    ATTORNEYS FOR APPELLEE:

RONALD E. WELDY                             KIM F. EBERT
Weldy & Associates                          BONNIE L. MARTIN
Indianapolis, Indiana                       Ogletree Deakins Nash Smoak & Stewart P.C.
                                            Indianapolis, Indiana


                                                                       FILED
                             IN THE                                   Mar 22 2012, 9:12 am


                   COURT OF APPEALS OF INDIANA
                                                                             CLERK
                                                                           of the supreme court,
                                                                           court of appeals and
                                                                                  tax court



LAWANE CHANEY on Behalf of Himself and      )
All Others Similarly Situated,              )
                                            )
      Appellants-Plaintiffs,                )
                                            )
             vs.                            )      No. 49A05-0905-CV-263
                                            )
CLARIAN HEALTH PARTNERS, INC.,              )
                                            )
      Appellee-Defendant.                   )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Patrick L. McCarty, Judge
                           Cause No. 49D03-0703-PL-8796



                                  March 22, 2012


                 ON REHEARING FROM ORDER ON MOTION FOR
                APPELLATE FEES AND COSTS - FOR PUBLICATION


NAJAM, Judge
       Ron Weldy petitions for rehearing, asserting five alleged errors in our Order on

Motion for Appellate Fees and Costs, published at 954 N.E.2d 1063 (Ind. Ct. App. 2011)

(“Order”). Generally, Weldy argues that we erred in finding that:

       1.     Weldy did not clearly indicate to the trial court that his motion to
              compel was actually a request to lift a stay on discovery;
       2.     Weldy did not inform the trial court of the stay in his motion to
              compel or afterwards;
       3.     Weldy ignored the context of Clarian’s response to his motion to
              compel in Clarian’s request for an extension of time to respond to
              discovery request; and
       4.     Weldy “persisted in the theory . . . that Clarian had agreed to provide
              the requested discovery[.]”

Weldy also argues that this court “misinterpreted” case law he relied on regarding

Chaney’s purported right to class-wide discovery. Having given thorough consideration

due each of Weldy’s contentions on rehearing, we conclude that he is correct on two

points. But, considering all of the record, those errors are insignificant and do not alter

our ultimate determination in the Order.

       First, Weldy is correct that the record does not support our finding that Weldy did

not inform the trial court of the stay in his motion to compel. The record shows that

Weldy did mention the stay in a numbered paragraph in the body of the motion to

compel. But the relief requested was not directed at the stay, and the trial court clearly

did not understand that Weldy had requested for the stay to be lifted. Thus, to the extent

we found that Weldy did not “mention” the stay, the Order of this court erred.

       Second, Weldy also correctly points out that the record does not support our

statement in the Order that he persisted in the theory that Clarian had agreed to provide


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the discovery at issue after the trial court had vacated its motion to compel and denied the

same. But the record does show that even on appeal Weldy persisted in the argument that

his “Motion to Compel” was not, in fact, a motion to compel but rather a request asking

the court to life a stay on certain discovery. A review of the record belies that argument.

       Despite these minor errors, after reviewing the record yet again on rehearing, we

re-affirm our conclusion that Weldy’s argument that the motion to compel was one to lift

the stay is not well taken.       Weldy ignored the plain language and context of

correspondence with opposing counsel on discovery issues, filed a motion to compel only

to recast it later as a request to lift a stay, later refused to acknowledge the context of

opposing counsel’s earlier correspondence even when threatened with a Trial Rule 37

motion for sanctions, and then at all times thereafter persisted in the theory that he had

always intended to request the lifting of the stay. Giving Weldy the benefit of doubt, we

could find that he had initially misunderstood opposing counsel’s correspondence. But

his tenacious persistence in a line of argument clearly debunked by the written record

amounts to bad faith. Thus, despite the errors Weldy has brought to our attention on

rehearing, with the minor corrections noted below, we re-affirm the Order on Motion for

Appellate Fees and Costs.

       Corrected paragraphs at 954 N.E.2d at 1067:

               At trial, Weldy filed a pleading titled “Plaintiff’s Motion to Compel
       Discovery Responses,” seeking discovery responses regarding additional
       members of the purported class. Appellant’s App. at 73. The motion did
       not include a statement regarding any reasonable efforts to reach an
       agreement with Clarian about discovery, as required by Trial Rule 26(F),
       nor did it mention clearly identify that he was requesting the trial court’s to
       lift the staying regarding any discovery of that nature. After receiving the


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      motion to compel, Clarian corresponded with Weldy, pointing out that the
      discovery at issue in the motion was subject to a stay, and informed him
      that Clarian would seek sanctions under Trial Rule 37 if Weldy did not
      withdraw the motion. Weldy refused to withdraw the motion to compel,
      arguing that it had not been filed under Rule 37 and that Clarian had
      already agreed to provide the discovery requested in the motion when
      Clarian had asked for an extension of time to provide discovery. In fact,
      the discovery for which Clarian had sought an extension of time was not
      subject to the stay, as was clear in the extension request when Clarian
      referenced the due date for such discovery.

              Weldy’s argument that his motion was one to lift the stay is not well
      taken. Significantly, Weldy did not mention the staymake clear in his
      motion to the trial court that he was seeking an order lifting the stay or after
      receiving Clarian’s correspondence. He also ignored the plain context of
      Clarian’s correspondence asking for an extension of time to respond to
      discovery that was not subject to the stay. By refusing to acknowledge
      identify the stay as the subject of his motion in the first instance and by
      persisting in the theory on appeal and in his petition to transfer that Clarian
      had agreed to provide the requested discoveryhe had merely misunderstood
      the correspondence with Clarian, despite all evidence to the contrary,
      Weldy pursued the motion to compel in bad faith. As such, Clarian is
      entitled to attorney’s fees under Appellate Rule 66(E) and costs under
      Appellate Rule 67 regarding his appeal of the Trial Rule 37 sanction.

With the modifications noted above, the Order on Motion for Appellate Fees and Costs is

affirmed.

      Clarian requests additional fees and costs for responding to the petition for

rehearing. We deny that request.

DARDEN, J., and BRADFORD, J., concur.




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