FOR PUBLICATION                                    Apr 17 2014, 8:45 am




ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEES:

BENJAMIN D. ICE                                ROBERT J. PALMER
WILLIAM A. RAMSEY                              May ∙ Oberfell ∙ Lorber
Murphy Ice & Koeneman LLP                      Mishawaka, Indiana
Fort Wayne, Indiana
                                               EDWARD J. CHESTER
                                               LAURA L. EZZELL
                                               Chester Law Offices
                                               Elkhart, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

GEICO GENERAL INSURANCE                        )
COMPANY,                                       )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )      No. 20A04-1307-CT-325
                                               )
LAURA B. COYNE, CHERYL A.                      )
O’MAILIA, and JAMES O’MAILIA,                  )
                                               )
      Appellees-Plaintiffs.                    )


                   APPEAL FROM THE ELKHART SUPERIOR COURT
                         The Honorable Evan S. Roberts, Judge
                            Cause No. 20D01-1009-CT-61



                                     April 17, 2014


                              OPINION - FOR PUBLICATION


BROWN, Judge
       GEICO General Insurance Company (“GEICO”) appeals from the trial court’s

Findings of Fact and Conclusions of Law Addressing Plaintiff’s Motion for a New Trial,

entered on March 21, 2013, as well as from the court’s Final Order entered on June 5,

2013, in favor of Cheryl A. O’Mailia and James O’Mailia (collectively, the

“O’Mailias”).1 GEICO raises three issues, which we consolidate and restate as whether

the court erred in awarding attorney fees to the O’Mailias based upon GEICO litigating in

bad faith. Additionally, the O’Mailias request appellate attorney fees pursuant to Ind.

Appellate Rule 66(E). We reverse and also deny the O’Mailias’ request for appellate

attorney fees.

                           FACTS AND PROCEDURAL HISTORY

       On December 28, 2009, vehicles driven by Laura Coyne and Arlin Yoder were

involved in an accident. Cheryl O’Mailia was a passenger in Coyne’s vehicle, and she

sustained physical injuries from the accident, including fractures of the second cervical

vertibra, the seventh cervical vertibra, the sternum, multiple rib fractures, and the mid

ulna on her left arm. At the time of the accident, the O’Mailias were insured by GEICO

under a policy providing underinsured motorist coverage with a limit of $600,000.

Cheryl brought a claim under the policy for damages sustained and James brought a

claim under the policy for loss of consortium.

       Approximately one week before trial, counsel for GEICO discovered on the

Florida Department of Health’s public website that James’s medical license had come

under investigation based on numerous allegations, including that he had forged


       1
          We note that Laura Coyne is also listed as a party plaintiff. However, she was dismissed as a
party by the trial court and does not participate in this appeal.
                                                  2
prescriptions for his wife (the “Florida Information”). The website noted that due to

these allegations, the State of Florida arrested James on July 20, 2009, and charged him

with thirteen counts of violating Fla. Stat. § 893.17(7)(a), by obtaining controlled

substances by fraud. On September 1, 2009, James pled nolo contendere to five felony

counts of violating Fla. Stat. § 831.02 by uttering a forged instrument.       Also, on

September 7, 2010, the Florida Surgeon General asked the Florida Board of Medicine to

impose penalties including the revocation or suspension of James’s medical license, and

in January 2011 James entered into a settlement agreement under the terms of which he

agreed to pay a $30,000 fine and reimburse the Department of Health costs of between

$21,254.15 and $24,254.15, was prohibited from treating or prescribing medications to

family members, and had his medical license placed on probation for three years.

      GEICO did not alert the O’Mailias of the Florida Information it had found, and

apparently the O’Mailias did not tell their counsel about the same. On October 31, 2012,

a jury trial commenced, and on the second day of trial James testified regarding the

accident’s effect on him and his wife, as well as problems with his medical office. He

testified that “had [his wife] not had the accident, I would suspect that this would have

been nothing other than just a regular, American family – just trying to do the best we

could.” Transcript at 187. On cross-examination, the following exchange occurred:

      Q.     But you said that before the accident you just had the problems of a
             regular, American family. Is that right?

      A.     I think so. Yes.

      Q.     Isn’t it true that you guys had something else going on in your
             family that most families aren’t dealing with?


                                           3
       A.     What are you alluding to?

       Q.     You can’t think of anything as you sit there?

       A.     No, not that I can think of. No.

       Q.     Okay. Isn’t it true that on July 20th of 2009, you were arrested and
              charged in the Circuit Court of Leon County in Florida with thirteen
              counts of violating section 89 – or 893.137a of the Florida statutes
              by obtaining controlled substances by fraud?

Id. at 188.

       The O’Mailias objected, and following a brief bench conference the court sent the

jury out of the courtroom. William Ramsey, counsel for GEICO, explained to the court

that in Florida a conviction is entered following a plea of nolo contendere, that “fraud is a

crime of dishonesty,” and that accordingly “it fits squarely within 609(a).” Id. at 194.

Benjamin Ice, who was also counsel for GEICO, then explained that “the purpose of the

question is that there is this whole issue that’s going on, a stressor in this family that

affects how they’re relating to each other and stress and anxiety that [Cheryl] is

experiencing,” that “having your husband arrested and charged in a criminal court is a

highly stressful ordeal,” and that therefore “there is this purpose that’s beyond

impeaching him as having been convicted of a crime of dishonesty.” Id. The court then

asked why this information was not disclosed, and Attorney Ice replied as follows:

              We looked very aggressively for any obligation to disclose it; there
       was none. We knew that if we disclosed it there would be a whole
       preparation on getting around it. This is substantive evidence. There was
       no written discovery that called for this, there was – we’re not using it as an
       exhibit, there was no obligation to disclose something that we found in a
       public record on the internet.




                                             4
Id. at 194-195. The O’Mailias’ counsel, Edward Chester, responded he “utterly and

totally disagree[d] with everything Mr. Ice just said,” that “[w]hat they’ve done is lay in

ambush just like the lawyer did in Outback Steakhouse,”2 and he moved for a mistrial.

Id. at 195. The court recessed and met with the attorneys in chambers, and afterwards

invited the attorneys to make a record on the issues of disclosure and the duty to disclose,

as well as Ind. Evidence Rules 609 and 403. After the O’Mailias renewed their motion

for a mistrial, Attorney Ice explained the decision to not disclose as follows:

              Our position when we discovered this – we tried to determine
       whether there was a duty to disclose. There were absolutely no written
       discovery requests to us at that point that required disclosure. Furthermore,
       there’s nothing under the Trial Rules that required disclosure. We
       evaluated every obligation that was made on us either by the rules of this
       court, of this state, or the pleadings in this case; we determined there was
       no duty to disclose. We opted not to disclose that information. It is our
       position that there is no duty to disclose this information.

               By comparison is that in the same way that [the O’Mailias’ counsel]
       is not going to share with me his cross examination of Dr. Horn in this case,
       I have no duty to provide my cross examination of Dr. O’Mailia in this
       case. . . .

Id. at 201. Attorney Ramsey also noted that although the court did not ask the attorneys

to address Ind. Evidence Rule 404(b), it is relevant because that rule “recognizes that

criminal convictions can be admissible for a variety of purposes other than impeachment

purposes,” that “it talks about the admissibility of crimes and requires disclosure in

criminal cases,” and that the implication is “there is no automatic disclosure requirement

in a civil case.” Id. at 204.




       2
         Attorney Chester was presumably referencing the case of Outback Steakhouse of Fla., Inc. v.
Markley, 856 N.E.2d 65 (Ind. 2006).
                                                 5
        The court denied the O’Mailias’ request for a mistrial, but it prohibited GEICO

from asking questions about the licensing and criminal proceedings other than

establishing the fact of a conviction for impeachment purposes under Ind. Evidence Rule

609(a). The jury ultimately entered judgment in favor of Cheryl on her claim in the

amount of $225,000,3 GEICO filed a motion to reduce judgment, and on November 14,

2012 the court entered an order granting the motion and entering judgment in favor of

Cheryl in the amount of $125,000 plus post judgment interest effective November 2,

2012. James was not awarded damages on his loss of consortium claim.

        On December 5, 2012, the O’Mailias filed a Motion for a New Trial based

primarily on GEICO’s failure to disclose and use of the Florida Information at trial and

also requested attorney fees.4 On December 10, 2012, GEICO filed a response to the

O’Mailias’ motion, and on December 31, 2012, the court held a hearing on the motion

and asked for proposed findings and conclusions. On March 21, 2013, the court issued

Findings of Fact and Conclusions of Law Addressing the O’Mailias’ Motion for a New

Trial (the “March 21 Order”), in which the court denied the O’Mailias’ request for a new

trial but granted their request for attorney fees based upon Ind. Code § 34-52-1-1(b)(3)

for fees “associated with the time and expense associated with [the O’Mailias’] motion

for a new trial, oral argument and proposed findings of fact tendered,” and it ordered the

        3
         Specifically, Cheryl was awarded $250,000, which was reduced by ten percent due to
comparative fault on the part of Coyne.
        4
           The motion also stated that GEICO’s counsel improperly objected throughout pre-trial
depositions and at trial, including during opening and closing argument, calling such objections a
“calculated and deliberate pattern of misconduct . . . .” Appellant’s Appendix at 77. The O’Mailias
further argued that during a bench conference, GEICO’s counsel “consistently, theatrically and vigorously
shook his head in the negative in the presence of the jury when [the O’Mailias’] counsel responded to
arguments made by GEICO’s counsel.” Id. at 78.

                                                   6
O’Mailias’ counsel to file an affidavit with an attached itemized invoice pertaining to

such work.5 Appellant’s Appendix at 50. The O’Mailias’ counsel filed an affidavit on

April 3, 2013, and on April 16, 2013, the court entered an order awarding attorney fees in

the amount of $15,568.22. Following a temporary stay requested by GEICO, on June 5,

2013 the court issued its Final Order vacating the stay and confirming the award of

$15,568.22.

                               ISSUE / STANDARD OF REVIEW

        The issue is whether the court erred in awarding attorney fees to the O’Mailias

based upon GEICO litigating in bad faith. The court based its award of attorney fees on

subsection (b) of Ind. Code § 34-52-1-1, also known as the General Recovery Rule,

which provides:

        In any civil action, the court may award attorney’s fees as part of the cost to
        the prevailing party, if the court finds that either party:

                (1)     brought the action or defense on a claim or defense
                        that is frivolous, unreasonable, or groundless;

                (2)     continued to litigate the action or defense after the
                        party’s claim or defense clearly became frivolous,
                        unreasonable, or groundless; or

                (3)     litigated the action in bad faith.

Specifically, the court awarded attorney fees under Ind. Code § 34-52-1-1(b)(3), finding

that GEICO litigated the action in bad faith. Bad faith is demonstrated where the party

presenting the claim is affirmatively operating with furtive design or ill will. Dunno v.

Rasmussen, 980 N.E.2d 846, 851 (Ind. Ct. App. 2012); see also Auto-Owners Ins. Co. v.


        5
         We note that the court’s order is thirty-two pages in length and contains forty-nine findings and
103 conclusions, as well as sixty-two footnotes. Relevant provisions will be included below.
                                                    7
C & J Real Estate, Inc., 996 N.E.2d 803, 805-806 (Ind. Ct. App. 2013) (“[P]roving bad

faith amounts to showing more than bad judgment or negligence: ‘it implies the

conscious doing of wrong because of dishonest purpose or moral obliquity. . . . [I]t

contemplates a state of mind affirmatively operating with furtive design or ill will.’”

(quoting Oxendine v. Pub. Serv. Co., 423 N.E.2d 612, 620 (Ind. Ct. App. 1980))).

       The trial court’s decision to award attorney fees under Ind. Code § 34-52-1-1 is

subject to a multi-level review: the findings of fact are reviewed under the clearly

erroneous standard and legal conclusions regarding whether a party litigated in bad faith

are reviewed de novo. See Dunno, 980 N.E.2d at 851 (citing Purcell v. Old Nat. Bank,

972 N.E.2d 835, 843 (Ind. 2012)). Finally, the trial court’s decision to award attorney

fees and any amount thereof is reviewed for an abuse of discretion. Id. A trial court

abuses its discretion if its decision clearly contravenes the logic and effect of the facts

and circumstances or if the trial court has misinterpreted the law. Id.

                                      DISCUSSION

       We begin with the relevant portions of the court’s March 21, 2013 Order which

were not covered in the facts section above as follows:

              Before addressing the merits, the Court notes that litigation is not a
       game. It is the time-honored method of seeking the truth, finding the truth,
       and doing justice. When, as here, counsel consciously declines to disclose
       evidence to opposing counsel or contact opposing counsel to discuss
       inflammatory evidence, the principles of fundamental fairness are
       abandoned. The little voice in every attorney’s conscience that murmurs
       turn over all information was admittedly and consciously ignored.

                                     Findings of Fact

                                         *****


                                             8
       31.    Defense counsel admitted on the record that he intentionally
decided not to disclose this information after conducting research into his
duty to disclose. Defense counsel stated, “We looked very aggressively for
any obligation to disclose it; there was none. We knew if we disclosed it
there would be a whole preparation on getting around it.              This is
substantive evidence. There was no written discovery that called for this,
there was – we’re not using it as an exhibit, there was no obligation to
disclose something that we found in a public record on the internet.”

                                  *****

        39.    Outside the presence of the jury and in response to Plaintiffs’
Motion for a New Trial, Defendant’s counsel argued that the question
posed to Dr. O’Mailia was not intended to attack the credibility of any
witness. Defendant asserted that the question was properly admissible for
substantive purposes independent of impeachment. Defendant argued that
the first purpose was to demonstrate that Dr. O’Mailia’s arrest on charges
alleging controlled substance offenses was a “significant event within three
months of the accident that would have had an effect on a lot of people.”
Defendant argued that this event, along with the potential financial harm
Dr. O’Mailia’s professional discipline could cause to Plaintiff’s household,
was an “alternative explanation” for the cause of Mrs. O’Mailia’s problems
and behavior that a number of witnesses attributed to her traumatic brain
injury. Defendant intended to reference the materials alleging Dr.
O’Mailia’s professional misconduct in order to discuss specific medications
that had allegedly been mis-prescribed to Mrs. O’Mailia, apparently to
establish that she had pre-existing medical conditions that were the same or
similar to conditions she claimed were caused by her brain injury.

                                  *****

                            Conclusions of Law

                   Failure to Inform Opposing Counsel

      27.    The parties agree that disclosure was not required by the
Rules of Procedure.

      28.     Plaintiff argues that Defense counsel engaged in misconduct
under T.R. 60(B)(3) in that the nondisclosure constituted a violation of the
Rules of Professional Conduct – 3.4(e), the Indiana Rules of Evidence 103,
the Pre-Trial Order, and the spirit of the Court’s in limine rulings that
demanded that both counsel behave as professionals.


                                      9
         29.       Indiana courts have addressed counsel misconduct in several
cases.

       30.    Although the conduct of the attorney is in technical
compliance with the Trial Rules, it can nonetheless be unacceptable under
the Rules of Professional Conduct.

        31.    The Court in Smith, pointed out “[t]he Rules are guidelines
for lawyers and do not spell out every duty a lawyer owes to clients, the
court, other members of the bar and the public . . . [the] lawyers’ duties are
found not only in the specific rules of conduct and rules of procedure, but
also in courtesy, common sense and the constraints of our judicial system.
As an officer of the Court, every lawyer must avoid compromising the
integrity of his or her own reputation and that of the legal process itself.”

       32.    The Court begins by examining the Rule of Professional
Conduct 8.4(d), which states that it is professional misconduct for a lawyer
to engage in conduct that is prejudicial to the administration of justice. The
administration of justice requires counsel to avoid trial by ambush.6

       33.     The Court finds counsel’s conscious decision not to disclose
this information was a breach in professionalism and courtesy and was
prejudicial to the administration of justice.

        34.    Defense counsel had the information over a week before trial
began and made a conscious decision not to disclose this information to
explicitly gain an advantage at trial. There is no doubt a failure to disclose
this information constituted an attempted trial by ambush. Trial by ambush
is prejudicial to the administration of justice and should not be condoned.
This sort of conduct is not beneficial to a determination of the merits, is
unfair to opposing counsel, the Court, the Jury and to the chosen profession
of attorneys. Further, it necessitated an extended delay in an already long
trial leaving eight (8) citizens in a jury room for a long period of time.
Counsel cannot engage in this conduct disguised as “a strategic decision.”

                                          *****

                                           Costs

      81.    Plaintiff asks this Court to award costs and attorneys fees
under T.R. 59(I) and I.C. §§ 34-52-1-1(b).


         6
             See Outback Steakhouse of Florida, 856 N.E.2d at 76.

                                             10
                                   *****

        83.    As the Court is not granting a new trial, the Court DENIES
this request for costs under T.R. 59.

       84.    Indiana follows the American Rule, wherein each party is
responsible for the payment of their own legal fees and costs in civil
actions, and there are very limited exceptions to this rule.

        85.    I.C. §[] 34-52-1-1(b) allows the Court to award attorney’s
fees as part of the cost to the prevailing party, if the Court finds that either
party litigated the action in bad faith.

      86.     The Court’s power in equity to grant attorneys fees must be
guided by a fair balancing of the litigant’s access to court, deterring
unnecessary and unwarranted litigation and allowing an attorney to
advocate for their client.

       87.   Analyzing the purpose of Indiana Code section 34-52-1-1, our
Supreme Court noted that the statute “strikes a balance between respect for
an attorney’s duty of zealous advocacy and ‘the important policy of
discouraging unnecessary and unwarranted litigation.’”

       88.    A claim is litigated in “bad faith,” for the purposes of [the]
statute permitting the award of attorney fees for bringing or pursuing a
frivolous claim, if the party presenting the claim is affirmatively operating
with furtive design or ill will.

       89.    “[T]he absence of good faith is bad faith, but bad faith is not
simply bad judgment or negligence. Rather, it implies the conscious doing
of a wrong because of dishonest purpose or moral obliquity. It is different
from the negative idea of negligence in that it contemplates a state of mind
affirmatively operating with furtive design or ill will.”

       90.    “[T]he conduct must be ‘vexatious and oppressive in the
extreme.’ The reason for such a strict standard is that the nature of an
attorney fee award under the bad faith exception is punitive and designed to
reimburse a prevailing party who has been dragged into baseless litigation
and thereby subjected to great expense.”

       91.    In asking an inadmissible question in front of the jury, here
the Court is faced with a situation where the attorney believed the evidence
presented to be admissible in one form or another. The Court interprets the
above standard to be subjective, based on the intent of counsel. Therefore,

                                      11
        even though the Court concluded that this question was not reasonably
        admissible, counsel’s belief that it was denies ill will as to the presentation
        of the issue to the jury. While perhaps poor judgment, the Court does not
        find it to be in bad faith.

                92.   Next, the Court evaluates counsel’s decision not to disclose
        this information. As discussed above, the Court concluded this action was
        prejudicial to the administration of justice and misconduct under T.R.
        60(B)(3). Further, counsel states that he did not disclose this information
        because it would have led to “. . . the whole getting around it.” This is an
        affirmative furtive design. Further evidence of this furtive design is shown
        by the extent of the argument supporting Defendant’s decision not to
        disclose. The concealment was on purpose here to scupper Plaintiff’s trial
        preparation. Plaintiff was denied the opportunity to examine the nearly half
        inch of paperwork presented on the issue, to prepare an effective
        examination of witnesses or dismiss the loss of consortium claim before
        trial.

               93.    The Court finds this purpose particularly telling. It is
        counsel’s responsibility to fairly present a case. Counsel’s plan flouted this
        responsibility to obtain trial advantage and demonstrates a scheme contrary
        to our system of justice. The Court therefore concludes that this decision
        was made in bad faith.

                                               *****

               96.   Noting that “[t]he statute vests discretion in the trial court to
        award fees on finding one or more acts described in subsection (b),” the
        Court awards reasonable attorneys fees to Plaintiff. The Court finds that
        based upon the identifiable conduct noted herein, counsel for Defendant
        should pay Plaintiffs’ attorney fees associated with the time and expense
        associated with Plaintiffs’ motion for a new trial, oral argument and
        proposed findings of fact tendered by Plaintiff. . . .

Appellant’s Appendix at 23-24, 29-30, 32-34, 38-40, 48-51 (footnotes omitted).7

        GEICO begins its argument by observing that it did not have a duty do disclose

the Florida Information under the Indiana Rules of Evidence, specifically Ind. Evidence

        7
           At the end of the order, the court included a number of conclusions of law noting its
dissatisfaction with the conduct of both parties’ counsel, specifically stating that “Counsel have the
responsibility to act civilly and professionally as officers of the Court” and noting examples where
counsel did not live up to this responsibility, and it concluded by stating: “Counsel are admonished that
such behaviors shed a negative light on the profession.” Appellant’s Appendix at 51-52.
                                                   12
Rules 609 and 404.8          GEICO argues that the court erred in concluding that Ind.

Professional Conduct Rule 8.4 gave rise to a duty to disclose. GEICO posits that unlike

the conduct of attorneys featured in previous cases ruling against an attorney based upon

Rule 8.4, “[n]ot informing an opposing party’s attorney of information known by the

opposing party and that is not subject to an independent disclosure requirement neither

precludes judgment on the merits nor leads to inaccurate results.” Appellant’s Brief at

19. GEICO also argues that the trial court’s application of Rule 8.4 creates a conflict

with other rules, and “[t]his Court should not find that Professional Conduct Rule 8.4

creates a duty to automatically disclose information when the clear text of Rule 26, which

specifically discusses the duty to disclose, indicates that no such duty exists.” Id. at 21.

GEICO also notes that “such an obligation would also contradict the principles” denoted

in Ind. Evidence Rules 609 and 404. Id.

        GEICO argues that it did not litigate in bad faith, and it points to the fact that it

researched whether it had a duty to disclose and decided that there was none. GEICO

further states that past cases have found misconduct when an attorney failed to

supplement answers to discovery or failed to answer written discovery, but that is not the

situation here. GEICO asserts that “parties have an obligation to avoid being ambushed

by using discovery to initiate the obligation to disclose information,” and, at the very

least, past cases and Indiana’s Trial Rules and Rules of Evidence provided “a good faith

belief that it was not required to disclose that its investigation had uncovered” the Florida

Information. Id. at 26-27.


        8
          Although the court did not base its conclusions on the Indiana Trial Rules, GEICO discusses in
depth the absence of a duty to disclose under said rules.
                                                  13
       The O’Mailias argue all of the cases cited by GEICO “involve a trial court’s ruling

either granting or denying a new trial or granting or denying some form of sanction for a

discovery violation” and that none of them “involves a trial court’s finding of misconduct

and bad faith despite technical compliance with the rules when the bad faith is based on

how counsel employed the rules to breach the duties of common courtesy,

professionalism, and avoiding prejudice to the administration of justice.” Appellees’

Brief at 18. The O’Mailias contend that GEICO’s focus on the Indiana Trial Rules and

Rules of Evidence is misplaced because the court found that GEICO’s counsel’s “actions

were a breach of professionalism and courtesy and were prejudicial to the administration

of justice.” Id. at 19. The O’Mailias direct our attention to the case of Smith v. Johnston,

711 N.E.2d 1259, 1263-1264 (Ind. 1999), in which the Indiana Supreme Court set aside a

default judgment on a medical malpractice case where plaintiff’s counsel did not notify

an attorney who had represented the physician before the medical review panel despite

the fact that Ind. Trial Rule 5(B) requires only that an attorney serve an opposing party’s

attorney with notice of a pending default after an attorney has entered an appearance with

the trial court. The O’Mailias further assert that the court’s findings and conclusion that

GEICO’s counsel acted in bad faith are supported by the record and accordingly are not

clearly erroneous, noting that the phrasing of the question was improper for impeachment

purposes because “it was not limited to a conviction,” that GEICO’s counsel then

changed its argument “to assert that the information was being offered as substantive

evidence,” and that following the asking of the question and discussion with counsel

outside the presence of the jury, the court gave the O’Mailias the option to admonish the


                                            14
jury which the O’Mailias declined, “preferring to simply move on and not ring the bell

again.” Id. at 25. The O’Mailias maintain that the court was in the best position to

determine whether counsel acted in bad faith, that the court issued a “very comprehensive

and detailed order setting forth the reasons it imposed sanctions on GEICO,” and that this

court should not set aside such order. Id. at 29.

       In its reply brief, GEICO notes that “[t]he O’Mailias concede that GEICO had no

obligation to disclose the information it discovered” and argues that “the decision to not

disclose was not prejudicial to the administration of justice and did not violate Indiana’s

Rules of Professional Conduct.” Appellant’s Reply Brief at 2. GEICO maintains that its

“decision to not disclose . . . was not merely permitted by Indiana’s Trial Rules; the Trial

Rules, decisions of this Court, decisions of the Indiana Supreme Court, decisions of

courts from other jurisdictions, and Indiana’s Rules of Evidence all affirmatively made

clear that GEICO had no duty to disclose the information.” Id. GEICO quotes the

Preamble to the Rules of Professional Conduct and argues that although they “encourage

a courteous attitude,” the Rules “specifically do not require attorneys to take or forego

action that, in an attorney’s reasonable professional judgment, protects a client’s

interest.” Id. at 5. GEICO posits that finding the Rules of Professional Conduct create

discovery obligations “would create substantial confusion and uncertainty for attorneys

and would establish the automatic duty of disclosure that the Supreme Court has held did

not exist. Id. at 6 (citing Outback, 856 N.E.2d at 74-75 (“Indiana’s Trial Rules, like

earlier versions of the federal rules, do not require automatic disclosure of discoverable

information.”)). GEICO also notes that the record establishes not that it “changed its


                                             15
position on the purpose of the evidence after the Court expressed its opinion,” but rather

that it “took the position at trial that the evidence was admissible for impeachment and

for substantive purposes.” Id. at 8.

                                               DECISION

        Initially, to the extent that the parties argue about how GEICO’s question to Dr.

O’Mailia was phrased and whether it was offered for substantive reasons, for

impeachment purposes, or both, we note that such discussion is immaterial to the

question before us. The court in its March 21, 2013 Order specifically concluded that

GEICO subjectively believed that the question was admissible which belied ill will on its

part as to the presentation of the issue to the jury. The court specifically stated in

Conclusion 91: “While perhaps poor judgment, the Court does not find it to be in bad

faith.” Appellant’s Appendix at 49. The court did not base its award of attorney fees on

GEICO asking the question, and accordingly we need not determine whether the court

abused its discretion in this regard.9

        Indeed, despite the multitude of issues discussed in its order, the court found bad

faith only with regard to GEICO’s decision not to disclose the Florida Information. As

        9
          In its March 21, 2013 Order, the court concluded that the question asked on cross-examination
to Dr. O’Mailia that “[i]sn’t it true that on July 20th of 2009, you were arrested and charged in the Circuit
Court of Leon County in Florida with thirteen counts of violating section 89 – or 893.137a of the Florida
statutes by obtaining controlled substances by fraud,” ran afoul of Ind. Professional Conduct Rule 3.4(e).
Transcript at 188. Rule 3.4(e) provides in part that “A lawyer shall not . . . in trial, allude to any matter
that the lawyer does not reasonably believe is relevant or that will not be supported by admissible
evidence . . . .” The court concluded that the question as phrased “was not an appropriate impeachment,”
that “counsel could not have reasonably concluded that asking about multiple inadmissible elements fit
cleanly within allowed impeachment,” that GEICO “made it abundantly clear that counsel’s intention was
not to use this as impeachment, but for substantive evidence” but that the substance of the question did
not fit within the Pretrial Order and was accordingly outside the scope of the contentions GEICO
submitted, and that it constituted misconduct under Ind. Trial Rule 60(B)(3). Appellant’s Appendix at
41-42. However, the court also concluded that the circumstances surrounding the question did not
constitute litigating in bad faith, and it did not award attorney fees on that basis.
                                                    16
noted above, the court concluded that this failure to disclose ran afoul of Ind. Professional

Conduct Rule 8.4(d), which provides that “[i]t is professional misconduct for a lawyer to

. . . engage in conduct that is prejudicial to the administration of justice.” The court later

concluded that this breach of professional conduct constituted misconduct under Ind.

Trial Rule 60(B)(3), which provides in relevant part that “[o]n motion and upon such

terms as are just the court may relieve a party or his legal representative from a judgment

. . . for the following reasons . . . fraud . . . misrepresentation, or other misconduct of an

adverse party.” However, instead of granting the O’Mailias’ motion for a new trial based

thereon it merely awarded attorney fees “associated with the time and expense associated

with Plaintiffs’ motion for a new trial, oral argument and proposed findings of fact

tendered by Plaintiff” under Ind. Code § 34-52-1-1(b)(3). Id. at 50-51.

       Also noted, a finding of bad faith requires not mere negligence or bad judgment,

but rather the conscious doing of wrong because of dishonest purpose or moral obliquity,

or affirmatively operating with furtive design or ill will. Here, GEICO’s counsel argued

to the court that they “looked very aggressively for any obligation to disclose it; there

was none.” Transcript at 194. They noted that written discovery did not call for such

materials, and stated that “there was no obligation to disclose something that we found in

a public record on the internet.” Id. at 195. After the O’Mailias moved for a mistrial,

Attorney Ice offered the following explanation for why GEICO decided not to disclose

the Florida Information:

              Our position when we discovered this – we tried to determine
       whether there was a duty to disclose. There were absolutely no written
       discovery requests to us at that point that required disclosure. Furthermore,
       there’s nothing under the Trial Rules that required disclosure. We

                                             17
       evaluated every obligation that was made on us either by the rules of this
       court, of this state, or the pleadings in this case; we determined there was
       no duty to disclose. We opted not to disclose that information. It is our
       position that there is no duty to disclose this information.

               By comparison is that in the same way that [the O’Mailias’ counsel]
       is not going to share with me his cross examination of Dr. Horn in this case,
       I have no duty to provide my cross examination of Dr. O’Mailia in this
       case. . . .

Id. at 201.

       These statements by GEICO’s counsel lead us to conclude that the decision not to

disclose the Florida Information was not borne out of ill will, and was not dishonest or

immoral, but instead was strategic in nature and believed to be within the bounds of the

law. Indeed, the O’Mailias, as well as the court, agree with the results of GEICO’s

research that neither the Trial Rules nor the Rules of Evidence compelled GEICO to

disclose the information, nor has case law been uncovered imposing such a duty. We

cannot say that such circumstances are indicative of litigating in bad faith.

       Also, we note that the court based its bad faith finding in part on its conclusion

that GEICO’s intended use of the Florida Information was purely substantive in nature

and that it was only after the fact they argued that the evidence was relevant for

impeachment purposes. Our review of the record reveals otherwise. As noted, directly

following the O’Mailias’ objection and brief bench conference, attorney Ramsey stated

that in Florida a conviction is entered following a plea of nolo contendere, that “fraud is a

crime of dishonesty,” and that accordingly “it fits squarely within 609(a).” Id. at 194.

Attorney Ice then explained further that “there is this whole issue that’s going on, a

stressor in this family that affects how they’re relating to each other and stress and


                                             18
anxiety that [Cheryl] is experiencing,” that “having your husband arrested and charged in

a criminal court is a highly stressful ordeal,” and that therefore “there is this purpose

that’s beyond impeaching him as having been convicted of a crime of dishonesty.” Id.

(emphasis added). The record reveals that GEICO intended at the outset to use the

Florida Information to impeach Dr. O’Mailia’s credibility under Ind. Evidence Rule

609(A), and therefore Finding 39 is clearly erroneous.

       Also, the fact that GEICO intended to use the Florida Information for

impeachment purposes belies a finding of bad faith. Ind. Evidence Rule 609(b) requires

that an adverse party be notified of a party’s intent to use evidence of a criminal

conviction for impeachment under the rule only if “more than ten (10) years have passed

since the witness’s conviction or release from confinement for it, whichever is later,” and

the parties agree that the convictions at issue here were less than ten years old. Thus, to

the extent GEICO intended to impeach Dr. O’Mailia using the Florida Information, we

cannot say that not disclosing such evidence was the product of furtive design or ill will

necessitating a finding of bad faith.

       Further, to the extent the O’Mailias suggest that Smith v. Johnston controls the

outcome of this case, we find Smith to be distinguishable. In Smith, plaintiff Johnston

filed a medical malpractice claim against Dr. Smith with the Indiana Department of

Insurance in which Dr. Smith was represented by the law firm Locke Reynolds Boyd &

Weissell (“Locke Reynolds”).        711 N.E.2d at 1261.      The medical review panel

unanimously found that Dr. Smith failed to comply with the appropriate standards of

care, and soon after counsel for Johnston, Karen Neiswinger, sent a letter to Locke


                                            19
Reynolds demanding the policy limits in settlement. Id. After a month passed without

response, Johnston filed suit in court, and later that day Neiswinger found a letter in her

mail from Locke Reynolds rejecting her settlement demand. Dr. Smith and his practice

were served with the complaint by certified mail, and a scrub nurse signed for the

summonses. Id. Locke Reynolds did not file an appearance on Dr. Smith’s behalf, and

approximately six weeks after filing the complaint Johnston moved for default judgment.

Id.   Neiswinger did not communicate with Locke Reynolds following sending the

settlement letter and did not alert Locke Reynolds of a pending default judgment motion.

Id. Neiswinger also submitted a sworn affidavit to the trial court in which she stated:

       I certify that no pleading has been delivered to Plaintiffs or to their counsel
       by the Defendants or any attorney appearing for Defendants, nor to the
       knowledge of the undersigned has any attorney entered an appearance since
       the filling [sic] of this cause, nor has any attorney contacted undersigned
       regarding entering their appearance on behalf of Defendants in this case
       since the filing of this cause.

Id. The court granted a default judgment the next day, a damages hearing was set, and

following the damages hearing the judgment was served on Dr. Smith. Id. Locke

Reynolds filed an appearance six days later, as well as a notice of intent to petition to set

aside the default judgment under Ind. Trial Rules 60(B)(1) and 60(B)(3). Id.

       The Indiana Supreme Court held that although Neiswinger technically complied

with the applicable Trial Rules, she committed misconduct under Ind. Trial Rule 60(B)(3)

when she obtained a default judgment without notifying Locke Reynolds, specifically

noting that “overriding considerations of confidence in our judicial system and the

interest of resolving disputes on their merits preclude an attorney from inviting a default

judgment without notice to an opposing attorney where the opposing party has advised

                                             20
the attorney in writing of the representation in the matter.” Id. at 1261-1262 (emphases

added). The Court held specifically that “knowledge gives rise to a corresponding duty

under the Rules of Professional Conduct to provide notice before seeking any relief from

the court.” Id. at 1263.

       In so holding, the Court observed that there was “no doubt” that Neiswinger was

on notice that Locke Reynolds was representing Smith and specifically noted that

Neiswinger, following the panel proceeding before the medical review board, sent Locke

Reynolds a settlement demand and received a response the same day she filed suit in the

trial court. Id. The Court observed that Ind. Professional Conduct Rule 8.4(d) “explicitly

states that it is professional misconduct for a lawyer to engage in conduct that is

prejudicial to the administration of justice,” and “[t]he administration of justice requires

that parties and their known lawyers be given notice of a lawsuit prior to seeking a

default judgment” because “[a] default judgment is appropriate only where a party has

not appeared in person or by counsel and, if there is a lawyer known to represent the

opposing party in the matter, counsel had made reasonable effort to contact that lawyer.”

Id. at 1264.    The Court also noted regarding the affidavit that although the sworn

statement was “literally true . . . [,] it would be easy for a busy trial judge to take this as a

statement that Neiswinger had not been contacted at all by Smith’s attorneys, not that

they had contacted her regarding settlement, but not their appearance,” and accordingly

although it “may not be a direct misrepresentation, [] it certainly creates a potential for

misperception on the part of the trial court, and to that extent was also prejudicial to the

administration of justice.” Id. The Court also underscored that “[a] default judgment


                                               21
against a health care provider or any other party is an extreme remedy and is available

only where that party fails to defend or prosecute a suit. It is not a trap to be set by

counsel to catch unsuspecting litigants.” Id.

       The attorney in Smith attempted to capitalize on a failure by Dr. Smith’s scrub

nurse to pass along the summons and obtain an “extreme remedy” of default judgment

meant only for parties who fail to defend or prosecute a suit. In so doing, she misled the

trial court as to her level of contact with Locke Reynolds and perhaps led the court to

believe that Dr. Smith was not being represented by counsel. The Indiana Supreme Court

labeled such conduct as prejudicial to the administration of justice. The Court noted in

doing so that Neiswinger was on notice Dr. Smith was being represented and even

corresponded with his counsel regarding settlement, yet she attempted to take advantage

of our trial rules and obtain judgment by default rather than on the merits of her case.

The other cases cited by the court in its March 21, 2013 Order similarly concern instances

in which a litigant sought to set aside a default judgment. See Allstate v. Watson, 747

N.E.2d 545, 546-547, 549 (Ind. 2001) (reversing the trial court’s denial of Allstate’s

motion for relief from default judgment where during negotiations plaintiff’s counsel

assured Allstate it would not seek a default judgment “while negotiations [were] still

proceeding,” but subsequently sought a default judgment prior to the expiration of

plaintiff’s offer of settlement); Sears Roebuck and Co. v. Soja, 932 N.E.2d 245, 252 (Ind.

Ct. App. 2010) (affirming trial court’s grant of default judgment and distinguishing Smith

because Ind. Professional Conduct Rule 8.4(d) did not require plaintiff’s counsel to notify

a claims adjuster of his intent to pursue a default judgment, and noting that “the origin of


                                            22
the default action is [the claims adjuster’s] inattention to monitor this cause . . .”), trans.

denied.

       By contrast, GEICO never made representations to the trial court which were

misleading. GEICO did not attempt to obtain the extreme remedy of default judgment,

and indeed the court presided over a jury trial on the merits.            GEICO discovered

information on the Internet which was publically available and which it intended to use at

trial to cross-examine Dr. O’Mailia. The O’Mailias do not challenge GEICO’s argument

that Dr. O’Mailia knew the substance of the Florida Information, and again GEICO was

under no duty to disclose under the Indiana Trial Rules or Rules of Evidence. Thus,

rather than setting a trap to ensnare the O’Mailias and avoid having a trial on the merits,

GEICO came across certain publically-available information known by the opposing

party which it used on cross-examination. We cannot say that GEICO’s conduct arises to

the level found in Smith to be prejudicial to the administration of justice, and, in any

event and as discussed above, was not the product of litigating in bad faith.

       Finally, we find the instant circumstances distinguishable from those present in

Outback Steakhouse of Fla. v. Markley, 856 N.E.2d 65 (Ind. 2006). In Outback, William

Whitaker attended a grand opening event at an Outback Steakhouse in Muncie, Indiana,

in which alcoholic drinks were provided either free of charge or at a rate of ten cents per

drink. 856 N.E.2d at 70, 71 n.4. Whitaker left the event, went to a bar, and later severely

injured David and Lisa Markley when he crashed into a motorcycle they were riding. Id.

at 70. Patrice Roysdon, a waitress working the event that evening, visited the counsel for

the Markleys, Michael Alexander, at Alexander’s request, and she told Alexander that


                                              23
Whitaker was visibly intoxicated when she served him that evening. Id. The Markleys

sued Outback, and during discovery Outback served the Markleys with interrogatories

including Interrogatory 12 asking the Markleys to “[s]tate specifically each and every fact

upon which you rely to support your allegation . . . that [Outback] . . . provided alcoholic

beverages to . . . Whitaker with actual knowledge that he was visibly intoxicated . . . .”

Id. The Markleys’ response identified several individuals but did not mention Roysdon.

Id. Outback deposed Roysdon in which she testified that “Whitaker was not visibly

intoxicated at Outback.” Id. at 71. She did not indicate that she had ever spoken with the

Markleys’ counsel, and only the Markleys’ co-counsel, Donald McClellan, was present at

the deposition. Id. Trial commenced in which Roysdon was identified as a witness by

Outback but not by the Markleys, but the trial ended in a mistrial due to circumstances

unrelated to Roysdon. Id.

       A second trial began in which Outback subpoenaed Roysdon to testify, and during

Outback’s opening statement it “told the jury Roysdon would testify that Whitaker was

not visibly intoxicated and that no witness would be produced who would testify to the

contrary.” Id. On the Friday of the first week of trial, still in the presentation of the

Markleys’ case-in-chief, Roysdon called Alexander’s office and arranged an appointment

for Sunday, and at the appointment she “told him she had lied in her [] deposition and

that she planned to testify at trial that Whitaker was visibly intoxicated when she served

him.” Id. Roysdon did not communicate this to Outback or its counsel, and Alexander

“did not inform the trial court or Outback of this meeting or seek to supplement the

plaintiffs’ answer to Interrogatory 12.” Id. Roysdon was called by Outback and testified


                                            24
“that Whitaker was visibly intoxicated at Outback, that she continued to serve him after

she realized he was intoxicated, and that she felt guilty and responsible for the collision.”

Id. at 71-72. The jury ultimately returned a verdict in the Markleys’ favor with damages

totaling $60 million. Id. at 72. Outback moved for a new trial and post-trial discovery

was conducted related to Roysdon’s shift in testimony, but the trial court denied all post-

trial relief. Id.

        On transfer, the Indiana Supreme Court, citing to Smith and Allstate, observed that

“‘misconduct’ under Indiana’s Rule 60(B)(3) can be based on a violation of the Code of

Professional Responsibility, even if the conduct at issue does not violate the rules of civil

procedure,” and noted that both intentional or unintentional violations of the discovery

rules could constitute misconduct. Id. at 73. Outback argued that the Markleys’ “failure

to disclose Roysdon’s identity and the substance of her 1997 statement in response to

Outback’s 1999 interrogatories violated Indiana Trial Rules 26 and 33” and that

“Alexander’s failure to inform Outback that he intended to call Roysdon and that she

would recant her 2001 deposition testimony at trial violated the duty to supplement

discovery responses under Trial Rule 26(E).” Id. at 74. The Court concluded:

        [T]he [Markleys’] failure to identify Roysdon as a person with knowledge
        of the relevant facts was a negligent if not intentional breach of its
        discovery obligations. Subsequently, [the Markleys] failed to supplement
        their response with the substance of her change in testimony. As these
        events unfolded, these omissions cascaded into a closing argument that
        materially misled the jury. The cumulative effect was misconduct
        prejudicing Outback’s defense.

Id.




                                             25
        Here the parties agree that GEICO did not violate the rules of discovery. There

was no interrogatory or other tool of discovery related to the Florida Information, and

accordingly GEICO was under no duty to supplement its discovery under Ind. Trial Rule

26(E). Under the circumstances, in which GEICO was not under a duty to disclose the

Florida Information and it researched the scope of its duty to disclose before deciding not

to do so, we conclude that GEICO did not litigate in bad faith. Accordingly, we reverse

the trial court’s attorney fee award under Ind. Code § 34-52-1-1(b)(3).10 Cf. Flynn v.

Edmonds, 602 N.E.2d 880, 888-889 (Ill. App. Ct. 1992) (discussing a rule of professional

conduct requiring a lawyer to “promptly” reveal a fraud to the tribunal where the lawyer

“knows that a person other than the client has perpetrated a fraud upon a tribunal,” and

holding that the rule “does not require an attorney to disclose the possibility that a

witness might lie on the stand,” that “[a]ny defense counsel, in situations such as this, is

in a difficult position” because “[i]f they disclose the impeaching information before trial,

they can rest assured that the falsely testifying witness will never appear or will testify

truthfully on the point that could be subject to impeachment” but “[t]hat is not to say that

the same witness will be equally candid with the balance of his testimony,” and that “the

burden of obtaining truthful witnesses should rest upon those who are calling those

witnesses”).




        10
           As noted above, the O’Mailias request that we award appellate attorney fees in their favor
pursuant to Ind. Appellate Rule 66(E). Appellate Rule 66(E) provides in part that this court “may assess
damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in
the Court’s discretion and may include attorneys’ fees.” Having concluded that GEICO did not litigate in
bad faith below and ruled in GEICO’s favor, we decline the O’Mailias’ request.
                                                   26
                                    CONCLUSION

      For the foregoing reasons, we reverse the court’s award of attorney fees under Ind.

Code § 34-52-1-1 and deny the O’Mailias’ request for appellate attorney fees.

      Reversed.

ROBB, J., concurs.

BARNES, J., concurs with separate opinion.




                                           27
                             IN THE
                   COURT OF APPEALS OF INDIANA

GEICO GENERAL INSURANCE COMPANY,                )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )    No. 20A04-1307-CT-325
                                                )
LAURA B. COYNE, CHERYL A. O’MAILIA,             )
and JAMES O’MAILIA,                             )
                                                )
      Appellees-Plaintiffs.                     )


BARNES, Judge, concurring


      I concur with the majority that the award of attorney fees be reversed. I do so with

some hesitation, though, because I believe that trial by ambush and rabbit-out-of-the-hat

moments are not to be favored in our courtrooms.

      I admit that exhausting, sometimes tedious discovery is the norm in today’s

litigation. It is preferable that both sides fully disclose their evidence. Nothing GEICO

did here violated any of our procedural rules, however. The trial court agreed with

GEICO’s attorneys that they had no duty under those rules to disclose the information

they found. It is hard to find “bad faith” under such circumstances, although I would not

say it is necessarily impossible to find “bad faith” just because a party has technically

complied with the discovery provisions of the Indiana Trial Rules.

                                           28
       Whether or not I am put off by the conduct here is not the question. Was this

conduct over the ethical line? I come to the conclusion that it was not. The information

here was publically available to anyone who would search it out. Most crucially, it was

well-known to the O’Mailias themselves, but they apparently failed to tell their own

attorneys about James’s legal troubles near the time of the accident. James’s responses to

the cross-examination questions were ones that legitimately triggered the impeaching

question based on that information. Given these facts, I reluctantly vote to concur.




                                            29
