Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res                           Apr 30 2013, 9:17 am
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEES:

JAMES E. AYERS                                    RAFAEL A. SANCHEZ
Wernle Ristine & Ayers                            ALEX E. GUDE
Crawfordsville, Indiana                           Bingham Greenebaum Doll, LLP
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA


JUAN MURILLO BRAVO,                               )
                                                  )
        Appellant-Plaintiff,                      )
                                                  )
               vs.                                )      No. 54A04-1207-PL-385
                                                  )
SILVIA BRAVO and,                                 )
RANCHO BRAVO, INC.,                               )
                                                  )
        Appellees-Defendants.                     )


                 APPEAL FROM THE MONTGOMERY SUPERIOR COURT
                          The Honorable David A. Ault, Judge
                            Cause No. 54D01-0909-PL-380


                                        April 30, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

        In this interlocutory appeal, Juan Murillo Bravo (“Murillo”) appeals the trial

court’s award of attorney fees to Silvia Bravo and Rancho Bravo, Inc. (collectively,

“Rancho Bravo”), as a result of a discovery dispute. We affirm and remand.

                                           Issues

        Murillo raises several issues, which we consolidate and restate as whether the trial

court properly awarded attorney fees to Rancho Bravo. Rancho Bravo raises one issue on

cross-appeal, which we restate as whether Rancho Bravo is entitled to appellate attorney

fees.

                                           Facts

        On September 18, 2009, Murillo filed a complaint against Silvia and Rancho

Bravo alleging that he was a fifty percent owner of Rancho Bravo and that Silvia had

“improperly and illegally taken and diverted funds and property of the Corporation for

her personal use.” Appellant’s App. p. 14. On October 19, 2010, the trial court entered a

case management order that required the exchange of exhibit and witness lists by January

19, 2011, mediation by April 8, 2011, amendments to exhibit and witness lists by May 2,

2011, cut off of discovery on June 3, 2011, and a bench trial on July 12, 2011.

        On April 5, 2011, Rancho Bravo filed a motion to vacate the case management

order’s mediation cutoff date because Murillo had not responded to its settlement

requests or requests to mediate, and the mediation deadline was approaching. The trial

court granted Rancho Bravo’s motion.



                                             2
        On May 27, 2011, Murillo filed a motion to amend the case management order

because the discovery deadline was June 3, 2011, but depositions had not been

completed. Murillo requested a thirty-day extension on the discovery deadline to July 3,

2011. The trial court granted Murillo’s request.

        On June 14, 2011, Murillo filed a motion to continue the trial because the trial was

scheduled for July 12, 2011, but depositions had not yet been completed. The trial court

vacated the trial date, and the parties filed a joint motion to amend the case management

order because of ongoing discovery disputes.1 On August 30, 2011, the trial court issued

an amended case management order, which provided that discovery would be completed

by January 6, 2012, that Murillo would disclose all expert witnesses by September 16,

2011 and file expert reports by October 7, 2011, and that the trial would take place on

March 2, 2012.

        On October 6, 2012, Murillo filed a motion to amend the first amended case

management order. Murillo alleged that he could not complete his expert’s report until

after Silvia’s deposition, which had been delayed.               Murillo requested that the case

management dates be extended by ninety days. The trial court entered a second amended

case management order providing for a January 6, 2012 deadline for plaintiff’s expert

reports, an April 6, 2012 deadline for discovery, and a June 8, 2012 trial date.




1
  During 2010 and 2011, the parties also had a dispute over Murillo’s inadequate responses to discovery
requests. Rancho Bravo filed a motion to compel, which the trial court granted on July 22, 2011, and the
trial court awarded attorney fees to Rancho Bravo. Murillo appealed, and we affirmed the trial court. See
Bravo v. Bravo, No. 54 A01-1108-PL-354 (Ind. Ct. App. May 9, 2012).
                                                   3
       On January 17, 2012, Murillo filed a motion to amend the second amended case

management order. Murillo alleged that the depositions of the parties had not yet been

completed and that his expert report should be due thirty days after the taking of Silvia’s

deposition. Rancho Bravo filed a response to Murillo’s motion, alleging that Murillo had

made no effort to depose Silvia after October 6, 2011, that Murillo had not responded to

Rancho Bravo’s request to depose him, and that the continued delays would unduly

burden Rancho Bravo. Murillo’s motion was later denied because Murillo had shown

“no good cause . . . to extend the deadlines.” Appellant’s App. p. 44.

       Murillo also sent a letter to Rancho Bravo’s counsel requesting a deposition of

Silvia for January 27, 2012. Murillo gave other possible dates, including February 21,

2012. Ranch Bravo informed Murillo that Silvia could not attend the deposition on

January 27, 2012, but that she could attend on February 21, 2012. However, on January

26, 2012, Murillo faxed Rancho Bravo a notice of deposition for Silvia for February 1,

2012. A letter included with the notice of deposition provided:

              In light of the other filings, we must proceed with [Silvia’s]
              Deposition. Therefore, we are setting her Deposition for
              February 1, 2012, at 1:00 p.m. If she cannot attend, then
              please file something with the Court, as the informal
              proceedings so far have resulted in unacceptable delays for
              her convenience.

Id. at 36.

       Rancho Bravo responded by filing an emergency motion for a protective order

regarding the February 1, 2012 deposition. Rancho Bravo pointed out that Murillo had

already missed the deadline for filing his expert report and that taking Silvia’s deposition


                                             4
earlier than the scheduled date would not cure Murillo’s failure to comply with the case

management order.      Rancho Bravo requested that the trial court award it expenses

pursuant to Indiana Trial Rule 26(C).

       Murillo filed a response and withdrew his notice of deposition for Silvia for

February 1, 2012. Rancho Bravo responded that it was still entitled to expenses pursuant

to Indiana Trial Rule 26(C). The trial court agreed and found that the “withdrawal of the

notice of deposition did not obviate the need for defendants to seek relief under Trial

Rule 26(C), that defendants’ motion was justified by plaintiff’s conduct, and that an

award of attorney’s fees [was] therefore warranted.” Id. at 44. The trial court ordered

that Rancho Bravo be awarded reasonable expenses associated with their motion for a

protective order and ordered Rancho Bravo to submit a petition for its expenses and

attorney fees within ten days. The trial court ordered that Murillo could file a response or

request a hearing within ten days thereafter.

       Rancho Bravo submitted a verified petition for attorney fees and costs of

$1,615.16. Murillo filed a motion to reconsider and a request for a hearing. At the

hearing, Murillo attempted to introduce evidence regarding the propriety of Rancho

Bravo’s motion for a protective order. The trial court ruled that the subject of the hearing

was fees, not “a collateral or backdoor attack on the previous order.” Tr. p. 10. The trial

court awarded Rancho Bravo attorney fees and costs in the amount of $1,942.16. Murillo

now appeals.

                                         Analysis

                                 I. Murillo’s Arguments
                                                5
       Murillo argues that the trial court erred by awarding attorney fees to Rancho

Bravo. The trial court awarded the attorney fees as a result of Rancho Bravo’s request

for a protective order under Indiana Trial Rule 26(C). The trial court has broad discretion

in ruling on a Trial Rule 26(C) motion for a protective order, and we will interfere only if

an abuse of discretion is shown. City of Elkhart v. Agenda: Open Gov’t, Inc., 683

N.E.2d 622, 628 (Ind. Ct. App. 1997), trans. denied. We will reverse only where the trial

court has reached an erroneous conclusion that is clearly against the logic and effect of

the facts of the case. Id.

       Indiana Trial Rule 26(C) governs protective orders and provides:

              Upon motion by any party or by the person from whom
              discovery is sought, and for good cause shown, the court in
              which the action is pending or alternatively, on matters
              relating to a deposition, the court in the county where the
              deposition is being taken, may make any order which justice
              requires to protect a party or person from annoyance,
              embarrassment, oppression, or undue burden or expense,
              including one or more of the following: (1) that the discovery
              not be had; (2) that the discovery may be had only on
              specified terms and conditions, including a designation of the
              time or place . . . .

Trial Rule 26 does not require a hearing on a party’s request for a protective order. Small

v. Centocor, Inc., 731 N.E.2d 22, 30 (Ind. Ct. App. 2000), trans. denied.

       The trial court here granted Rancho Bravo’s request for a protective order

regarding the February 1, 2012 deposition of Silvia. Murillo had given Rancho Bravo

possible dates for the deposition, including February 21, 2012. Rancho Bravo informed

Murillo that Silvia would be available on February 21, 2012. However, on January 26,

2012, Murillo faxed a notice of deposition for February 1, 2012, and informed Rancho

                                             6
Bravo that, if Silvia could not attend, Rancho Bravo should file something with the court.

Rancho Bravo responded by filing its motion for a protective order, which the trial court

granted.

      Rancho Bravo requested attorney fees and costs for preparing the motion for

protective order. “If the motion for a protective order is denied in whole or in part, the

court may, on such terms and conditions as are just, order that any party or person

provide or permit discovery.” Ind. Trial Rule 26(C). “The provisions of Trial Rule

37(A)(4) apply to the award of expenses incurred in relation to the motion.” Id.; see also

Ledden v. Kuzma, 858 N.E.2d 186, 189 (Ind. Ct. App. 2006) (noting that the “Kuzmas

sought the protective order pursuant to Trial Rule 26(C), which provides that the

provisions of Trial Rule 37(A)(4) govern the award of expenses incurred with respect to a

motion for a protective order”). Indiana Trial Rule 37(A)(4) provides:

                    If the motion is granted, the court shall, after
             opportunity for hearing, require the party or deponent whose
             conduct necessitated the motion or the party or attorney
             advising such conduct or both of them to pay to the moving
             party the reasonable expenses incurred in obtaining the order,
             including attorney’s fees, unless the court finds that the
             opposition to the motion was substantially justified or that
             other circumstances make an award of expenses unjust.

                    If the motion is denied, the court shall, after
             opportunity for hearing, require the moving party or the
             attorney advising the motion or both of them to pay to the
             party or deponent who opposed the motion the reasonable
             expenses incurred in opposing the motion, including
             attorney’s fees, unless the court finds that the making of the
             motion was substantially justified or that other circumstances
             make an award of expenses unjust.



                                            7
                    If the motion is granted in part and denied in part, the
             court may apportion the reasonable expenses incurred in
             relation to the motion among the parties and persons in a just
             manner.

“Thus, when a protective order is either entered or denied, a presumption arises that the

trial court will also order reimbursement of the prevailing party’s reasonable expenses.”

Penn Cent. Corp. v. Buchanan, 712 N.E.2d 508, 511 (Ind. Ct. App. 1999), trans. denied.

“This award is mandatory, subject only to a showing that the losing party’s conduct was

substantially justified, or that other circumstances make an award of expenses unjust.”

Id. We have noted that Trial Rule 37(A) contemplates a hearing “to ascertain whether the

non-moving party’s noncompliance with discovery was substantially justified or whether

other circumstances would make the award of expenses unjust.” Huber v. Montgomery

Co. Sheriff, 940 N.E.2d 1182, 1186 (Ind. Ct. App. 2010).

      Although the trial rules do not require a hearing on a motion for a protective order,

Rancho Bravo requested attorney fees and costs pursuant to Trial Rule 37(A)(4), which

does require a hearing. The issue at the hearing was not the propriety of granting the

protective order. Rather, the issue for the hearing was whether Murillo’s conduct was

“substantially justified or whether other circumstances would make the award of

expenses unjust.” Id.

      Murillo argues that the trial court abused its discretion by excluding testimony

from attorney Bill Green regarding the propriety of Rancho Bravo’s actions after Murillo

sent the notice of deposition for February 1, 2012, and a portion of deposition testimony

from Silvia regarding her residence in California. Both of these topics concerned Rancho


                                            8
Bravo’s response to Murillo’s notice of deposition, not the propriety of Murillo’s

unilateral change in the deposition date. The focus of the hearing was whether Murillo’s

conduct was substantially justified, not whether Rancho Bravo’s conduct was

substantially justified.   Consequently, the trial court did not err by excluding this

evidence.

       Murillo argues that Rancho Bravo should have filed a request with the trial court

to change the date of the deposition under Indiana Trial Rule 30(B)(3). See Ind. T.R.

30(B)(3) (“The court may for cause shown enlarge or shorten the time for taking the

deposition.”). However, Murillo cites no authority for the proposition that Rancho Bravo

was required to utilize Trial Rule 30(B)(3) rather than the motion for a protective order

under Trial Rule 26(C).

       Murillo also argues that Rancho Bravo failed to comply with Indiana Trial Rule

26(F), which requires parties to attempt an informal resolution to discovery disputes.

Murillo claims that Rancho Bravo should have informed him that Silvia was out of the

state on February 1, 2012. However, Rancho Bravo did attempt to informally resolve

setting the date for Silvia’s deposition. Murillo unilaterally changed the date and told

Rancho Bravo: “If she cannot attend, then please file something with the Court, as the

informal proceedings so far have resulted in unacceptable delays for her convenience.”

Appellant’s App. p. 36. Under these circumstances, we cannot say that Rancho Bravo

failed to comply with Trial Rule 26(F).

       Next, Murillo argues that Rancho Bravo should have disclosed to him that Silvia

had moved to California. According to Murillo, Silvia’s residence would have affected

                                            9
her deposition pursuant to Indiana Trial Rule 45, which provides: “A nonresident of the

state may be required to attend only in the state and county wherein he is served with a

subpoena, or within forty [40] miles from the place of service, or at such other convenient

place as is fixed by an order of court.” Regardless of Silvia’s state of residence, Murillo

unilaterally changed the deposition date and demanded that Rancho Bravo request

assistance from the trial court. We cannot say that Trial Rule 45 makes the award of

attorney fees unjust.

       We conclude that Murillo presented no evidence that his conduct in abruptly

changing the deposition date was substantially justified or that other circumstances would

make the award of expenses unjust. Thus, the trial court did not abuse its discretion when

it ordered Murillo to pay Rancho Bravo’s attorney fees and costs.

       Murillo next argues that the amount of attorney fees awarded was unreasonable.

We review the trial court’s attorney fee award for an abuse of discretion. M.S. ex rel.

Newman v. K.R., 871 N.E.2d 303, 312 (Ind. Ct. App. 2007), trans. denied. The amount

of the trial court’s award must be supported by the evidence on the record, and we will

only reverse the award if the trial court abuses its discretion. Id. The trial court abuses

its discretion if its decision is clearly against the logic and effect of the facts and

circumstances before it. Id. Murillo’s only argument is that the attorney fees were

excessive because Rancho Bravo should have engaged in informal negotiations under

Trial Rule 26(F) or filed a motion under Trial Rule 30. We have already addressed those

contentions, and Murillo makes no argument concerning the propriety of the amount of



                                            10
attorney fees awarded. Consequently, we conclude that the trial court did not abuse its

discretion regarding the amount of attorney fees awarded.

                               II. Appellate Attorney Fees

       On cross-appeal, Rancho Bravo argues that it is entitled to an award of appellate

attorney fees. We have held that “an award of reasonable expenses pursuant to Rule

37(A)(4) includes the reasonable expenses incurred by the party in defending the award

on appeal.” M.S., 871 N.E.2d at 315. Therefore, we grant Rancho Bravo’s request for

appellate attorney fees and remand this cause to the trial court for a determination of the

reasonable amount of its appellate attorney fees.

                                       Conclusion

       The trial court properly granted Rancho Bravo’s motion for a protective order and

properly awarded attorney fees and costs to Rancho Bravo as a result of Murillo’s

conduct. Further, Rancho Bravo is entitled to appellate attorney fees. We affirm and

remand to the trial court with instructions to determine Rancho Bravo’s reasonable

appellate attorney fees and to order Murillo to pay that amount.

       Affirmed and remanded.

NAJAM, J., and BAILEY, J., concur.




                                            11
